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https://www.courtlistener.com/api/rest/v3/opinions/8312888/ | Elaine E. Bucklo, United States District Judge
The amended complaint in this action alleges that while plaintiff was working as a bartender at the Tin Roof Bar in Joliet, Ilinois, he was attacked by defendant Doyle, an off-duty Cook County Deputy Sheriff's Officer who was patronizing the bar at the time. Plaintiff asserts state law claims of assault, battery, and intentional infliction of emotional distress against Doyle as well as a constitutional claim against the Cook County Sheriff's Office ("CCSO") under Monell v. New York Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). CCSO has moved to dismiss the Monell claim on the ground that plaintiff has pled no constitutional violation, nor a sufficient factual basis for inferring that the harm he suffered was caused by the CCSO's alleged policy, custom, or practice of failing to investigate, supervise, or discipline its officers. Defendant Doyle also seeks dismissal of the complaint, arguing that plaintiff fails to plead facts sufficient to support his state claims, and that if the Monell claim is dismissed, I should relinquish supplemental jurisdiction over those claims in any event. Both motions are denied.
Plaintiff alleges that while apparently intoxicated, Doyle "rushed" him behind the bar; shoved him into a wall; grabbed him by the neck; and held a knife to his head. The following day, Doyle sent plaintiff a message apologizing for his actions, which Doyle characterized as a "bad joke." Plaintiff further alleges that at the time of the incident, Doyle had a history of misconduct involving excessive force and/or intoxication, some of which CCSO had documented and investigated and some of which it had ignored. Plaintiff's Monell theory is that the CCSO's policy, custom, or practice of insufficiently investigating and/or disciplining its deputies reflects "deliberate indifference" to the rights of individuals with whom those deputies come into contact, creating a culture of impunity that was the "moving force" behind Doyle's deprivation of substantive due process right to bodily integrity.
To establish liability under Monell , plaintiff must prove: 1) that he was deprived of a constitutional right; 2) that the deprivation was caused by CCSO's express policy, custom, or practice; and 3) that that policy, custom, or practice caused his constitutional *715injury.1 See Ovadal v. City of Madison , 416 F.3d 531, 535 (7th Cir. 2005). Plaintiff likens his case to LaPorta v. City of Chicago , 277 F. Supp. 3d 969 (N.D. Ill. 2017), and Obrycka v. City of Chicago , No. 07 C 2372, 2012 WL 601810 (N.D. Ill. Feb. 23, 2012) (St. Eve, J.). While neither case is factually on all fours with this one, they undercut CCSO's arguments for dismissal.
In Obrycka , an off-duty police officer brutally attacked a bartender. The plaintiffs alleged that the City conducted a "sham" investigation into the attack and that City officers conspired with each other and with private citizens to threaten plaintiffs with arrest, criminal charges, and bodily harm in retaliation for speaking publicly about the incident and for providing evidence in connection with its investigation. Plaintiffs claimed that this conduct violated the plaintiffs' substantive due process rights and several other constitutional guarantees. It is true that there is no analogue in plaintiff's complaint to the constellation of wrongdoing attributed to multiple state actors in Obrycka . But plaintiff's theory that CCSO's "de facto policy was the moving force behind" Doyle's conduct parallels the theory asserted in that case. 2012 WL 601810, at *6. And while not every state law battery triggers a constitutional injury, see Alexander v. DeAngelo , 329 F.3d 912, 916 (7th Cir. 2003), the facts plaintiff alleges amount to more than a trivial "offensive touching." Id. Meanwhile, Gibson v. City of Chicago , 910 F.2d 1510 (7th Cir. 1990), confirms that Doyle's off-duty status is irrelevant, since under plaintiff's theory, CCSO's "alleged policy ... supplies the 'color of law' requirement." Id. at 1510. Accordingly, Monell liability does not require that Doyle himself acted under color of law.
LaPorta also militates in plaintiff's favor. In that case, an off-duty officer's service weapon discharged, shooting the plaintiff in the head and causing serious injuries.2 The parties disputed whether the officer or the plaintiff himself had pulled the trigger. Although that factual dispute precluded summary judgment in the plaintiff's favor, since the court found "no authority for the proposition that an individual's choice to harm himself can as a matter of law constitute a substantive due process violation," see id. at 983, the court likewise declined to grant summary judgment in the City's favor. After rejecting the City's color-of-law argument out of hand under Gibson , the court went on to find that evidence supported the plaintiff's theory that the City had a "widespread practice or custom of impeding or interfering with police misconduct investigations and that an attendant code of silence pervades [the Chicago Police Department]." Id. at 991. That evidence, the court held, created a genuine dispute as to whether the City's practices "would lead [the officer] to believe he could inflict alcohol-fueled violence with impunity in his personal life." Id. at 991. The court concluded that a reasonable jury could find that the officer's conduct was "caused by a belief that that he was impervious to consequences due to CPD's administrative lapses and willingness to tolerate a code of silence." Id.
In short, these cases support plaintiff's Monell theory, and I am not persuaded that the facts he alleges are insufficient to state a plausible claim on that theory.
*716Doyle's separate motion does not warrant additional discussion, as supplemental jurisdiction over the state claims is appropriate, and plaintiff has adequately pled those claims.
Monell liability can also be established with proof that the deliberate act of a decision-maker with final policymaking authority, Ovadal , 416 F.3d at 535, but plaintiff's claim does not appear to rest on that theory.
To be precise, the plaintiff was the victim's father and guardian, who asserted the victim's claims on his behalf. For ease of exposition, I refer to the victim and the plaintiff as if they were one and the same. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1331971/ | 254 S.E.2d 199 (1979)
41 N.C. App. 171
STATE of North Carolina
v.
Robert BARNETT.
No. 7927SC13.
Court of Appeals of North Carolina.
May 1, 1979.
*200 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. T. Michael Todd, Raleigh, for the State.
Richard B. Schultz, Asst. Public Defender, for defendant appellant.
PARKER, Judge.
Defendant first assigns error to the court's overruling his objection to the district attorney's question directed to the State's witness, James Stewart, as to whether it was Stewart's "usual practice to go about locking the house" before going to bed. Defendant contends this was error because the witness had just previously testified that he had no recollection concerning locking his house before going to bed on the night of 24 May 1978. Defendant argues that in view of this testimony, whatever Stewart's "usual practice" may have been, it could not have been relevant in this case. We find no prejudicial error. Although evidence concerning the witness's usual practice with respect to locking his home may not have been relevant in this case, its admission could hardly have been prejudicial. Defendant was charged with a violation of G.S. 14-54(a) which provides that "[a]ny person who breaks or enters any building with intent to commit any felony or larceny therein is guilty of a felony." (Emphasis added.) To convict of violating the statute, it is sufficient if the State's evidence shows either a breaking or an entering; it need not show both. State v. Jones, 272 N.C. 108, 157 S.E.2d 610 (1967); State v. Lassiter, 15 N.C.App. 265, 189 S.E.2d 798 cert. denied 281 N.C. 761, 191 S.E.2d 358 (1972); State v. Pittman, 14 N.C.App. 588, 188 S.E.2d 694 (1972). In view of the uncontradicted evidence that defendant entered the Stewart dwelling without permission, the admission of evidence as to the "usual practice" of James Stewart with regard to locking his home at night, even if not relevant, was certainly not prejudicial to the defendant. Defendant's first assignment of error is overruled.
Defendant's second assignment of error is directed to the court's action in overruling his objection to an answer given by the same witness, James Stewart, on direct examination. After the witness testified he had known the defendant for "probably several years," the district attorney asked,
Q. And what did you know his name to be?
to which the witness replied:
A. All they call them (sic) was "Spook." That's all I knowed for a long time.
At that point defense counsel interposed an objection, which was overruled. Exception to this ruling is the basis of defendant's second assignment of error. He contends that the witness's answer was objectionable both because it was hearsay and because it tended to impeach defendant's character when his character was not at issue. We find no error.
At the outset we note that defendant made no motion to strike the witness's answer. Where, as here, inadmissibility is not indicated by the question but only becomes apparent by some feature of the answer, "the objection should be made as soon as the inadmissibility becomes known, and should be in the form of a motion to strike out the answer or the *201 objectionable part of it." 1 Stansbury's N.C. Evidence (Brandis Revision) § 27 p. 70. Although defendant here failed to make his objection in the proper form, for purposes of this appeal we will treat it as having been a motion to strike. So treated, we find no error in the court's ruling. The testimony to which defendant objected was not hearsay. The name a person is called is a fact, and in this case the witness was testifying to such a fact within his own knowledge.
Nor was the testimony inadmissible on the grounds that it showed defendant's bad character when his character was not at issue. If it be granted that the nickname "Spook" may, under certain circumstances, be not altogether complimentary, nevertheless the testimony was admissible since it was relevant to show the witness's acquaintance and familiarity with the defendant. Where evidence is relevant for some purpose other than proving character, it is not inadmissible because it incidentally reflects upon character. State v. Penley, 6 N.C.App. 455, 170 S.E.2d 632 (1969); 1 Stansbury's N.C. Evidence (Brandis Revision) §§ 79, 80, 91, 104.
We have carefully examined all of defendant's remaining assignments of error which have been brought forward in defendant's brief and find no error. There was ample evidence to require submission of the case to the jury; such discrepancies as existed in the State's evidence were for the jury to resolve; and the defendant's motion to dismiss was properly denied. Defendant's motion to set the verdict aside was addressed to the discretion of the trial court, State v. Vick, 287 N.C. 37, 213 S.E.2d 335 (1975), and no abuse of discretion has been shown.
No Error.
MITCHELL and HARRY C. MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1331969/ | 273 S.C. 88 (1979)
254 S.E.2d 305
GENERAL ELECTRIC COMPANY, Respondent,
v.
Lions GATE, a Partnership, comprised of Arnold D. Roberts, Leonard T. Shannon and George M. Lee, Jr., and Richland Construction Company, Inc., Defendants, of whom Lions Gate, a partnership comprised of Arnold D. Roberts, Leonard T. Shannon and George M. Lee, Jr., is Appellant.
20939
Supreme Court of South Carolina.
April 18, 1979.
*89 Henry D. Knight, Jr., of Whitener, Ketchin & Knight, Columbia, for appellant.
Ernest J. Nauful, Jr., of Callison, Tighe, Naufaul & Rush, Columbia, for respondent.
April 18, 1979.
RHODES, Justice:
This action was commenced by General Electric Company [G.E.] to collect $7,231.64 for appliances purchased by Richland Construction Company, Inc. [Richland] and installed in Lions Gate's condominiums. Richland defaulted and the case was tried against Lions Gate upon allegations that it had guaranteed payment of the appliance purchase. Lions Gate defended on the principal ground that the alleged oral promise relied upon by G.E. was void under the statute of frauds. Section 32-3-10(2) S.C. Code of Laws (1976). From an adverse jury verdict, Lions Gate appeals. We affirm.
In November 1974, G.E. furnished appliances for appellant's condominiums pursuant to an order from Richland, which was appellant's general construction contractor at that time. Thereafter, G.E.'s regional credit manager, Walter Albrecht, sought to collect the account and, after learning that Richland had left the job, attempted to negotiate directly with Lions Gate through George Lee, one of its general partners. Albrecht testified that an oral agreement was reached on January 13, 1975, whereby Lee promised that *90 he would issue a check jointly payable to G.E. and Richland upon Richland's next entitlement to a draw on construction funds. According to Albrecht's further testimony, Lee stated that the proceeds from the draw would be in an amount sufficient to satisfy the G.E. account and would be forthcoming the following week. G.E. was never paid although the evidence shows that Lions Gate issued the aforementioned check amounting to $32,947 on January 21, 1975, payable only to Richland.
Appellant moved for nonsuit, directed verdict, and judgment notwithstanding the verdict on the grounds that Lions Gate's oral promise constituted a collateral obligation which was unenforceable under the statute of frauds. The trial court refused the motions, concluding that the evidence created a jury question.
The parties acknowledge that an oral promise to pay the debt of another, though otherwise invalid when not in writing, is enforceable if the attendant circumstances underlying its making will qualify under either of the following theories as outlined in Campbell v. Hickory Farms of Ohio, 258 S.C. 563, 568-69, 190 S.E. (2d) 26, 29 (1972):
[1] ... where the promise to pay a debt incurred by another is made as a part of a transaction where the main purpose and object of the promisor is not to answer for the debt of another, but to subserve some purpose of his own, his promise is not within the Statute.
[2] ... where the agreement to pay the debt of another is part of an original undertaking between the parties, and it is not collateral to the origination of the debt, the Statute does not apply. (emphasis added)
In determining whether an agreement can be classified under the "main purpose" or "original undertaking" exception, the courts must rely on the circumstances of each particular case in order to ascertain the intent of the parties *91 and how they viewed the agreement. Stackhouse v. Pure Oil Co., 176 S.C. 318, 180 S.E. 188, 193 (1935). To be enforceable under either theory, the promise, like all other contractual obligations, must be supported by an independent consideration in the form of an advantage to the promisor or a detriment to the promisee. J.A. Ellis & Co. v. Carroll, 68 S.C. 376, 47 S.E. 679 (1904). Robertson v. Hunter, 29 S.C. 9, 6 S.E. 850 (1888). Accord, 37 C.J.S. Frauds, Statute of § 21 (1943)
Appellant's primary contention is that the evidence is insufficient to supply the consideration necessary to remove the promise from the statute of frauds. The consideration for the appellant's oral promise alleged in the complaint and supported by the evidence was the action of G.E. in extending time for payment and in forbearing to file a mechanic's lien against the property of appellant. While admitting that he had not specifically threatened Lions Gate with a mechanic's lien, Albrecht explained that G.E.'s option of filing the lien was discussed. He testified that Lee stated that, since Lions Gate had been put on notice of G.E.'s lien rights, no funds could be advanced on the next construction draw without first paying G.E. Lee testified that he neither bargained for the forbearance nor did he realistically think G.E. was considering a lien during the January 13th conversation.
Undoubtedly, a forbearance to exercise legal rights is a sufficient consideration for a promise made on account of it in the general law of contracts. As was stated in J.A. Ellis & Co. v. Carroll, 68 S.C. 376, 47 S.E. 679, 680 (1904):
"If it be a damage to the other party, or a benefit to the party promised for, it will be sufficient, provided these proceed from the forbearance to enforce immediately some subsisting lien."
From the evidence, it can be reasonably inferred that without Lee's promise of a joint payee check, G.E. would have *92 pursued its lien remedies sooner, thereby enhancing its rights to timely payment. However, to its detriment, G.E. relied on Lee's promise of settlement, delayed its filing and, consequently, was unable to collect any sums on the account. Moreover, the promisor, as owner of the project, had a direct interest in the property which would have been prejudiced by the filing of G.E.'s lien; thus, any forbearance would and could have inured only to the personal benefit of appellant.
In determining whether an oral promise can escape the statute's bar under the "main purpose" or "original undertaking" rule, our cases have held that if the evidence is susceptible of more than one reasonable inference, the issues must be submitted to the jury and their finding thereon should be conclusive. Crapps v. Spivey, S.C. 244 S.E. (2d) 520 (1978); Stackhouse v. Pure Oil Co., supra. The evidence at bar was sufficient for the jury to reasonably conclude that Lions Gate's promise was supported by the consideration necessary to remove it from the statute of frauds. We accordingly conclude that the issues in the present case were properly submitted to the jury.
Appellant's remaining exception challenges the jury verdict of $6,000 as being inconsistent with the evidence which showed an account balance of $7,231.64. The general rule is that the inadequacy of a verdict by a jury will not per se entitle the litigant against whom it was rendered to a new trial. Scott v. Little, 263 S.C. 261, 210 S.E. (2d) 132 (1974). See also 58 Am. Jur. (2d) New Trial § 156 (1971). Under the circumstances of this case, we find no reason to deviate from this general rule and accordingly affirm the jury verdict.
Affirmed.
LEWIS, C.J., and LITTLEJOHN, NESS and GREGORY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332031/ | 285 S.E.2d 454 (1981)
STATE of West Virginia
v.
Larry Dale CONLEY.
No. 14590.
Supreme Court of Appeals of West Virginia.
December 18, 1981.
*455 J. Thomas Lane, Bowles, McDavid, Graff & Love, Charleston, for plaintiff in error.
Chauncey H. Browning, Atty. Gen., Jack C. McClung, Deputy Atty. Gen., Charleston, for defendant in error.
PER CURIAM:
In this action Larry Dale Conley appeals from his January 18, 1978, conviction in the Circuit Court of Kanawha County. Conley alleges that his involuntary absence from a post-trial hearing on his motion to reconsider the sentence, at which no evidence was taken but where arguments of counsel were heard, constitutes a denial of his right to be present at every critical stage of trial. He further claims that the State breached its duty to him under the terms of a plea bargain agreement, pursuant to which he had entered his plea of guilty. We find no merit in either claim, and affirm the judgment of conviction.
On January 18, 1978, Conley entered a plea of guilty to a charge of grand larceny in the Circuit Court of Kanawha County. Trial had begun on January 17, 1978, on a charge of armed robbery. Upon resumption of the trial on January 18, defense counsel informed the court that a plea bargain agreement had been reached. The assistant prosecuting attorney trying the case confirmed this information, and proceeded to lay out the terms of the plea bargain as the State understood it. The State agreed to accept the defendant's plea of guilty to the lesser offense of grand larceny, to make no recommendation as to probation, and to recommend the alternative sentencing procedure of one year in the county jail, permitted by W.Va.Code, 61-3-13(a) [1977], should the court determine that incarceration was required. The trial judge informed *456 counsel that he would not be bound by any plea bargain and told Conley several times that he reserved the right to sentence him to one to ten years in the state penitentiary, without regard to any plea bargain with the prosecutor's office. Conley indicated that he understood this, and that he still wished to plead guilty to the lesser offense of grand larceny.[1]
The court accepted the plea of guilty to the charge of grand larceny and ordered that the defendant be remanded to the custody of the Huttonsville Correctional Center for diagnosis and classification. After receipt of the report from Huttonsville, the court sentenced the defendant to a term of one to ten years in the penitentiary with credit for time served. No error is alleged in regard to the June 9, 1978, sentencing of the defendant.
On July 28, Conley moved the court to reconsider the sentence, and a hearing on this motion was held on August 7, 1978.
Conley was not present at this hearing, the circuit court having denied his motion to require his presence. At the hearing, defense counsel moved the court to reconsider the sentence, apparently with a view to obtaining probation for Conley as soon as possible. A different assistant prosecuting attorney than had previously handled the case represented the State. The new assistant prosecutor stated that "this guy has had more breaks than he deserves" and opposed the motion of defense counsel. The court denied the motion to reconsider the sentence and this appeal followed.
Conley assigns as error the trial court's refusal to require his presence at the hearing held on his motion to reconsider the sentence, and the assistant prosecutor's alleged breach of the plea bargain agreement at that hearing. We turn first to the claimed right to presence.
Appellant argues that the right to be present at all critical stages of the trial includes the right to be present at the hearing on his motion to reconsider the sentence, without regard to whether the sentence is actually modified at that hearing.
In defining what constitutes a critical stage we have stated that "(a) critical stage of a criminal proceeding is where the defendant's right to a fair trial will be affected." Syllabus point 2, State v. Tiller, W.Va., 285 S.E.2d 371 (1981).
While we have not specifically ruled on the asserted right to presence at a hearing on a motion to reconsider sentence at which no evidence is taken, Tiller makes clear that no right to be present at such a hearing exists.[2] Conley's absence from the hearing held on his motion to reconsider the sentence could not have affected the fairness of his trial and, indeed, there is no allegation of prejudice occurring as a result of his absence from the challenged hearing.
Conley's second assignment is that of the alleged breach of the plea bargain agreement at the reconsideration hearing, and he *457 asks that upon remand he be permitted to choose either specific performance of the original plea bargain or be allowed to withdraw his guilty plea.
By the terms of the plea bargain agreement, as related to the trial court by the assistant prosecutor assigned to the case at the time the plea was entered, and agreed to without reservation by defense counsel, the State agreed to "make no recommendation concerning probation." This statement was made in the context of an agreement by the State to recommend the alternative sentencing option under W.Va.Code, 61-3-13(a) [1977], if the trial judge chose to incarcerate Conley. It is apparent from the context in which the agreement to make no recommendation as to probation is presented that the parties contemplated only that it would extend to the initial sentencing.
We noted in Syllabus point 2 of State v. Olish, W.Va., 266 S.E.2d 134 (1980), "(w)here the guilty plea is sought to be withdrawn by the defendant after sentence is imposed, the withdrawal should be granted only to avoid manifest injustice."
Since we hold that the State was not bound to refrain from making a recommendation as to probation at the hearing on Conley's motion to reconsider the sentence, the challenged statement by the assistant prosecutor worked no manifest injustice warranting the remedy of allowing Conley to withdraw his guilty plea after the imposition of sentence.
Similarly, where there is no breach of the plea bargain by the State, specific performance is inapposite. As we stated in Syllabus point 1 of Brooks v. Narick, W.Va., 243 S.E.2d 841 (1978):
"When a court cannot restore a defendant to his position before a plea bargain was performed by him and breached by the state, he is entitled to specific performance of the bargain by the state."
Herein, the State fulfilled its obligation under the agreement, and Conley is not entitled to specific performance.
Finding both assignments of error by Conley to be without merit, we affirm the judgment of conviction and the sentence imposed.
Affirmed.
NOTES
[1] Conley, in his petition for appeal, also assigned as error the alleged failure of the trial court to sufficiently inform him of the factors it would consider in passing sentence. That assignment, however, was neither briefed nor argued and, therefore, will be considered abandoned. See Syl. pt. 6, Addair v. Bryant, 284 S.E.2d 374 (1981): "Assignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived."
[2] Federal courts and the courts of sister states have laid down the rule that the right of a defendant to be present does not extend to post-trial hearings where only questions of law are determined. In the federal law, see Rule 43, F.R.Cr.P., Notes of the Advisory Committee, No. 1 (1981 ed.); United States v. Phillips, 403 F.2d 963 (6th Cir., 1968); United States v. McClintic, 606 F.2d 827 (8th Cir., 1979); Gilliam v. United States, 269 F.2d 770 (D.C.Cir., 1959).
State courts have considered the issue in Dobbs v. State, 245 Ga. 208, 264 S.E.2d 18 (1980); People v. Ellis, 81 Ill.App. 351, 36 Ill. Dec. 601, 401 N.E.2d 282 (1980); McCuan v. State, 196 Kan. 457, 413 P.2d 69 (1966); Com. v. Dupont, 2 Mass.App. 566, 317 N.E.2d 83 (1974); State v. Hurst, 347 S.W.2d 177 (Mo. 1961); State v. Higley, 621 P.2d 1043 (Mont. 1980); and Sanders v. State, 69 Wis. 2d 242, 230 N.W.2d 845 (1975). Rule 43(c)(3) of the West Virginia Rules of Criminal Procedure provides that "a defendant need not be present ... (a)t a conference or argument upon a technical question of law not depending upon facts within the personal knowledge of the defendant." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743508/ | 289 Wis. 2d 551 (2006)
710 N.W.2d 725
2006 WI App 31
ROCK COUNTY DHS v. DAPHNEA W.
Nos. 2005AP002618 Through 2005AP002620.
Court of Appeals of Wisconsin.
January 19, 2006.
Unpublished opinion. Reversed and remanded.
*552 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2205025/ | 688 N.W.2d 499 (2004)
PEOPLE
v.
POINDEXTER.
No. 125525.
Supreme Court of Michigan.
September 16, 2004.
SC: 125525, COA: 233907.
On order of the Court, the application for leave to appeal the October 21, 2003 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2205042/ | 239 P.3d 255 (2010)
237 Or. App. 133
In the Matter of M.R.L., E.Y.L., Y.I.L., A.J.L., M.L.L., and S.E.L., Children.
STATE of Oregon, Petitioner-Respondent,
v.
N.L. and B.Z.L., Appellants.
00389604, 00389606, 00389607, 00389609, 00389611, 00389613; Petition Number J13025; A143877.
Court of Appeals of Oregon.
Argued and Submitted April 15, 2010.
Decided September 1, 2010.
*256 Shannon Storey, Deputy Public Defender, argued the cause for appellant N.L. On the brief were Peter Gartlan, Chief Defender, and Holly Telerant, Deputy Public Defender, Appellate Division, Office of Public Defense Services.
Ann Lechman-Su argued the cause and filed the brief for appellant B.Z.L.
Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
Before LANDAU, Presiding Judge, and ORTEGA, Judge, and SERCOMBE, Judge.
ORTEGA, J.
Father and mother appeal from a juvenile court judgment taking jurisdiction over their six children: M.R., born in August 1996; E, born in September 1998; M.L., born in July 2000; Y, born in January 2004; A, born in February 2007; and S, born in November 2008. After father and mother filed notices of appeal, the juvenile court entered a judgment amending the jurisdictional/dispositional judgment. As we explain below, we conclude that the juvenile court lacked authority to amend the judgment as it did; that father's trial counsel performed inadequately by misstating the law concerning the applicability of the Indian Child Welfare Act (ICWA); that, as to the juvenile court's finding of medical neglect, father suffered no prejudice as a result of counsel's performance; and that, as to additional findings required by ICWA, father did suffer prejudice. Because the jurisdictional/dispositional judgment did not comply with ICWA as to evidence and findings required under ORS 419B.340, we reverse and remand.
To determine which judgment is at issue on appeal, we begin with the procedural history. In July 2009, DHS was awarded protective custody of the children. In a subsequent shelter order entered later that month, the juvenile court determined that the children were Indian children under ORS 419A.004(13), which defines "Indian child" as a child who either (a) is a member of a tribe or (b) is eligible for membership and is the biological child of a member of a tribe. Father *257 is a member of the Choctaw Nation of Oklahoma, and the court found by clear and convincing evidence that the children were enrolled or eligible for enrollment. The court further found, by clear and convincing evidence, that removal from the home was in the children's best interest because the parents' continued custody was likely to result in serious emotional or physical damage to the children and that, under the circumstances, no efforts would have prevented the need for removal or made possible the return of the children.
The jurisdictional hearing was held in October. Near the end of the hearing, the court and counsel discussed the applicability of ICWA. A DHS caseworker testified that she had inquired of the Choctaw Nation whether the children were eligible for enrollment, had received conflicting information in response, and was gathering information to apply for enrollment; the Choctaw Nation did not intend to intervene until the children were enrolled. The caseworker believed that there was a "strong possibility" that they were eligible but that, "based on * * * letters from the Tribe, there is still some confusion about that matter."
The juvenile court made no findings about enrollment eligibility but did express concern about whether ICWA applied, which would trigger the requirements of proof by clear and convincing evidence and testimony from a qualified expert. ORS 419B.340(7). Counsel for all parties (father, mother, the children, and the state)apparently confused by the tribe's lack of interventionresponded by agreeing that the applicable evidentiary standard was a preponderance of the evidence. The court accordingly applied that standard and made oral findings that, under ORS 419B.100(1)(c), the children's conditions and circumstances were such as to endanger their welfare because mother and father had (1) failed to provide dental care, (2) failed to provide for the children's medical needs, and (3) failed to provide for their educational needs. The court noted that it would find medical neglect by clear and convincing evidence, if needed. The court subsequently entered a "Judgment of Jurisdiction/Disposition (Non-ICWA)." (Uppercase and boldface omitted.) Mother and father appealed, and father argued, in part, that the juvenile court had erred by failing to apply ICWA.
Meanwhile, after the entry of the jurisdictional judgment and the filing of the notices of appeal in this case, mother filed in the juvenile court a "Motion for Reconsideration of ICWA Ruling at Jurisdictional Hearing." She contended that the juvenile court had "the authority to correct an error or mistake at any time under ORS 419B.923, even during the pendency of an appeal." DHS also received information that the children were eligible for enrollment and that the Choctaw Nation intended to intervene. The juvenile court held a hearing on April 13, 2010 (two days before oral argument in the appeal of the jurisdictional judgment), decided that ICWA applied, and set a date for an evidentiary hearing under ICWA standards.
In this court, the state filed a notice of probable mootness, arguing that the juvenile court's actions mooted father's assignment of error concerning ICWA. Attached to that notice is an unsigned order stating, in part, that the juvenile court
"finds that at the original jurisdictional hearing, * * * the case should have been treated as an ICWA case pursuant to [ORS] 419B.878, because there was sufficient ambiguity on the record as to the applicability of ICWA, the underlying facts as to whether the children were in fact `Indian children' under the statute, and * * * the state concedes that there was `a suggestion of Indian heritage.'"
The state indicated that the parties had agreed to the order and that the juvenile court was expected to sign it on the morning of April 15. Although no party has provided this court with a signed copy of the order, OJIN indicates that, on April 15, the juvenile court signed an "Order grant counsel for mothers mo to reconsider." That caption corresponds to the caption of the unsigned order that was attached to the state's notice of probable mootness, which was "Order Granting Counsel for Mother's Motion for Reconsideration Regarding the ICWA Issue at Jurisdictional Hearing." (Uppercase omitted.)
*258 On June 1, the juvenile court held a hearing in which it heard qualified expert testimony from a Choctaw Nation social worker. The court then entered an amended judgment of jurisdiction; applying a standard of clear and convincing evidence, the court found that DHS had made active efforts and that mother and father had failed to provide for children's medical needs, thereby endangering their health and welfare.
After the entry of the amended judgment, the state filed in this court a supplemental notice of probable mootness, arguing that the amended judgment mooted father's assignment of error regarding ICWA. This court inquired about the juvenile court's authority to enter the amended judgment during the pendency of the appeal.[1] In response, father contended that the juvenile court lacked authority to do so. Mother and the state argued that the juvenile court had authority under ORS 419B.923(1)(c) because of newly discovered evidencenamely, statements from the Choctaw Nation that the children are eligible for enrollment. The state also argued that, under ORS 419B.923(8), the juvenile court had inherent authority to enter an order regarding ICWA and to modify the judgment.[2]
We conclude that neither of those asserted bases for entering an amended judgment during the pendency of the appeal is supported by the record before us and that the juvenile court lacked authority to enter that amended judgment. In some circumstances, ORS 419B.923 allows a juvenile court to modify or set aside an order or judgment after the filing of a notice of appeal:
"(1) Except as otherwise provided in this section, on motion and such notice and hearing as the court may direct, the court may modify or set aside any order or judgment made by it. Reasons for modifying or setting aside an order or judgment include, but are not limited to:
"(a) Clerical mistakes in judgments, orders or other parts of the record and errors in the order or judgment arising from oversight or omission. These mistakes and errors may be corrected by the court at any time on its own motion or on the motion of a party and after notice as the court orders to all parties who have appeared. During the pendency of an appeal, an order or judgment may be corrected as provided in subsection (7) of this section.
"(b) Excusable neglect.
"(c) Newly discovered evidence that by due diligence could not have been discovered in time to present it at the hearing from which the order or judgment issued.
"(2) A motion to modify or set aside an order or judgment or request a new hearing must be accompanied by an affidavit that states with reasonable particularity the facts and legal basis for the motion.
"* * * * *
"(7) A motion under subsection (1) of this section may be filed with and decided by the trial court during the time an appeal from a judgment is pending before an appellate court. The moving party shall serve a copy of the motion on the appellate court. The moving party shall file a copy of the trial court's order or judgment in the appellate court within seven days of the date of the trial court order or judgment. Any necessary modification of the appeal required by the court order or judgment must be pursuant to rule of the appellate court.[[3]]
*259 "(8) This section does not limit the inherent power of a court to modify an order or judgment within a reasonable time or the power of a court to set aside an order or judgment for fraud upon the court."
We begin with the applicability of ORS 419B.923(1)(c). Nothing in the record before this court suggests that the juvenile court modified its judgment on the basis of newly discovered evidence. At the jurisdictional hearing, the court did not make a factual finding concerning the children's eligibility for tribal enrollment, nor do we have any indication that, on mother's motion for reconsideration, the court intended to change any factual finding in response to new evidence. Although further information about the children's eligibility had been obtained, no one appears to have argued or presented evidence to the juvenile court that the children's eligibility for tribal enrollment (and thus their status as Indian children) "by due diligence could not have been discovered in time to present it" at the jurisdictional hearing, as required by ORS 419B.923(1)(c). Rather, the parties appear to have agreed that mistakes were made at the jurisdictional hearing and that the court should have applied ICWA based on the record at the time of that hearing. The juvenile court was not asked to modify the jurisdictional judgment on the basis of newly discovered evidence, nor did it do so.
We also reject the state's argument that amending the judgment was within the juvenile court's "inherent power" under ORS 419B.923(8). In general, under ORS 19.270, when a notice of appeal is served and filed, the trial court loses jurisdiction of the cause except as to certain limited matters. Here, nothing in ORS 19.270 or ORS 419B.923 provided a basis for the juvenile court to amend the jurisdictional/dispositional judgment under ORS 419B.923(8) after notices of appeal were filed. ORS 19.270 provides that a trial court retains jurisdiction to take certain actions, but deciding a motion under ORS 419B.923(8) is not among them.[4]
*260 ORS 419B.923(7) provides that a trial court may decide a motion under ORS 419B.923(1) during the pendency of an appeal, but creates no such exception for a modification of a judgment under ORS 419B.923(8). Nor does ORS 419B.923(8) itself create such an exception. Regarding the similar provision of ORCP 71 C, the Supreme Court has explained that the provision "is a reservation of inherent trial court authority, not a source of inherent authority." State v. Ainsworth, 346 Or. 524, 532, 213 P.3d 1225 (2009) (emphasis in original); see also Dept. of Human Services v. B. A. S./J. S., 232 Or.App. 245, 256-57, 221 P.3d 806 (2009), rev. den., 348 Or. 280, 230 P.3d 933 (2010) (examining legislative history of ORS 419B.923(8), noting that it was adopted from ORCP 71 C, and citing ORCP 71 C case law to support interpretation of ORS 419B.923(8)); cf. Patrick v. State of Oregon, 178 Or.App. 97, 106, 36 P.3d 976 (2001) (noting that trial court had modified judgment under ORCP 71 C before any party had appealed and thus "while it still retained full jurisdiction over the action").[5] We are aware of no source of authority for the juvenile court to enter the amended judgment in this case during the pendency of this appeal. Because the amended judgment is ineffective, we consider the original jurisdictional/dispositional judgment only.
Father makes five assignments of error regarding that judgment. In the first three, he challenges the juvenile court's findings that the children were within the jurisdiction of the court on the basis of the parents' neglect of the children's dental, educational, and medical needs. In the fourth, he contends that the juvenile court erred by concluding that ICWA did not apply and thus failing to make findings required under ICWA. While acknowledging that invited error generally is not a basis for reversal, father contends that his counsel's statement about ICWA's applicability was not a strategic choice and should not be attributed to him under the circumstances. Finally, in his fifth assignment of error, father contends that he received inadequate assistance from his trial counsel.
We begin with the fifth assignment of error because it frames our resolution of the other issues. We agree that the juvenile court erred by not applying ICWA at the jurisdictional hearingbut ordinarily, given the agreement of father's trial counsel that the court did not need to do so, we would conclude that the error was invited and thus not a basis for reversal. State ex rel Juv. Dept. v. S. P., 346 Or. 592, 606, 215 P.3d 847 (2009). Father, however, contends that his counsel was inadequate in that regard and that he should not be penalized for counsel's misstatement of the law; in his view, his counsel's statement was not a tactical decision, and no advantage could have accrued to father from it. We agree.
The statutory right to counsel includes a right to adequate counsel, and a claim of inadequate assistance may be raised for the first time on appeal. State ex rel Juv. Dept. v. Geist, 310 Or. 176, 185-87, 796 P.2d 1193 (1990) (so holding in a termination of parental rights proceeding); State ex rel. Juv. Dept. v. Charles/Austin, 106 Or.App. 628, 633-34, 810 P.2d 389, rev. den., 312 Or. 150, 817 P.2d 758 (1991) (applying the same principles in an appeal arising from a jurisdictional hearing); see also ORS 419B.205 (providing for appointment of counsel for parents). No one has disputed father's right to appointed counsel in this case. As the party asserting the inadequacy of counsel, father has the burden to show not only that his counsel was inadequate but also that the inadequacy prejudiced his cause. Geist, 310 Or. at 191, 796 P.2d 1193. As the Geist court explained, id., the standard for reversal is high:
"The bare assertion of trial counsel's inadequacy does not warrant a remand or reversal; *261 nor does a finding of inadequacy, standing alone, require a remand or reversal if, on de novo review of the record, the reviewing court is satisfied that the proceeding was fundamentally fair and that even with adequate counsel, the result inevitably, would have been the same."
Here, father's counsel performed inadequately by mistakenly telling the juvenile court that ICWA did not apply. In a case involving an Indian child, the court must comply with ICWA before finding the child to be within its jurisdiction. State ex rel. Juv. Dept. v. Cooke, 88 Or.App. 176, 178, 744 P.2d 596 (1987). On the record at the time of the jurisdictional hearing, the juvenile court should have applied ICWA. ORS 419B.878 (providing in part that "[i]f the court knows or has reason to know that an Indian child is involved, the court * * * shall enter an order that the case be treated as an Indian Child Welfare Act case until such time as the court determines that the case is not an Indian Child Welfare Act case"). Here, we can conceive of no strategic or tactical advantage that could have accrued to father from the application of the less stringent standards applicable to a non-ICWA case.
We next consider whether the result at the jurisdictional hearing would have been the same if father's counsel had asserted that ICWA applied. Geist, 310 Or. at 191, 796 P.2d 1193. As requested by father, we review de novo. ORS 19.415(3)(b); ORAP 5.40(8).[6] We conclude that, as to the finding of educational and dental neglect, the result would have been different (although a discussion of those issues would not benefit the parties or the bench and bar); that, as to the finding of medical neglect, the proceeding below was fundamentally fair and the result would have been the same; and that, as to additional evidence and findings required by ORS 419B.340(7), the result would have been different. Thus, although educational and dental neglect are not proper bases for jurisdiction in this case, medical neglect may be a proper basis for jurisdiction if, on remand, the requirements of ORS 419B.340(7) are satisfied.
We begin with the finding of medical neglect. Father contends that he did not neglect the children's medical needs and that the record is insufficient to show that he would neglect any future needs. We disagree. As the juvenile court orally found at the conclusion of the jurisdictional hearing, there is clear and convincing evidence that father and mother endangered the children by failing to provide for their medical needs. Father's and mother's inability to recognize the need for, or unwillingness to seek, the help of medical professionals has already created severe, lasting harm to some of the children and presents a risk of harm to any child in their care. Their protestations that they now would provide medical care are not credible.
Even relying only on mother's and father's testimony about the events leading to the children's hospitalization (and disregarding other accounts provided to medical staff), the record shows that mother and father have failed to seek medical help, even when they believed that the children suffered from serious medical conditions. DHS was awarded temporary custody in July 2009, after all six children were hospitalized. By that time, two-year-old A had a life-threatening case of meningococcemia. As a result of that infection, both of his lower legs and several of his fingers have been amputated, and he has undergone multiple skin grafts.[7] All of the *262 children were exposed to infection and treated for it; all could have ended up in the same condition as A.
Mother testified that, in the week or two before hospitalization, the family was sick with what they believed to be swine flu. Although five or six family members had racing heart rates, mother sought no medical care, because she believed from media reports that doctors did not want to see patients until the swine flu was over. Mother's expert, a registered nurse, testified that the Center for Disease Control had publicly advised people with suspected swine flu not to go to the hospital but to call a doctor for advice. She acknowledged that "[t]he key there is to call the doctor"something that father and mother never did.
Mother testified that, the day before the children were hospitalized, she became sick and collapsed, and E became sick soon after. Based on father's research, father and mother thought that E might have scarlet fever, which they believed to be a serious illness. They did not seek medical care.
A was the next to fall ill. According to mother, at midnight, A went from being energetic to lying down with a mild fever. Father testified that later, when he was told that A was "kicking, or something," he saw that A had purple spots and was having problems breathing. After checking A's throat and trying to cool A by rinsing him, father told mother to call 9-1-1 at around 2:30 a.m. While waiting for an ambulance, father had to put his fingers in A's throat to maintain an air passage while A was convulsing. When the ambulance arrived, mother accompanied A to the hospital, where she too was admitted to the intensive care unit.
After mother and A were taken to the hospital, M.L. complained that he had problems with his legs and was unable to walk. Father, who testified that he "was confused as to why [M.L.] couldn't walk," did not call 9-1-1 or arrange to take M.L. to the hospital. Later in the day, mother's aunt took father and the children to the hospital. All of the children except M.R. were admitted to the intensive care unit. By that time, E was delusional.
Dr. Leonhardt, a pediatrician who saw the children shortly after their hospitalization and later conducted evaluations of the four oldest children, testified that E was lucky to survive. S, Y, and M.L. had symptoms of bacterial meningitis and received treatment. Although M.R. did not display symptoms, he was admitted to the hospital because of exposure to the disease; Leonhardt thought that an illness that M.R. suffered the prior week might have been meningococcemia. Leonhardt also thought that, in A's case, an onset of the illness in two hours was not impossible, but it would be very surprising if his symptoms had developed that suddenly. In Leonhardt's view, even after the children were hospitalized, mother did not appreciate the severity of the situation.
Mother's and father's delays in seeking care before the children's hospitalization were consistent with a long-standing failure to seek medical care. Before the hospitalization, father and mother had obtained no medical care or check-ups for the children, except some vaccinations for only M.R. Father testified that vaccinations "just slipped my mind or something" and that he had not understood the need for check-ups. Mother testified that check-ups are unnecessary and that she has "very little trust for doctors."
Twelve-year-old M.R. had a congenital heart defect that typically would be found during the first year of life and repaired between ages two and five. In the hospital, the first person to listen to M.R.'s heart was able to identify a problem. M.R.'s subsequent surgery was less successful than would be expected for a younger patient. Long-term consequences of the lack of early treatment may include pulmonary hypertension and potential scarring of the heart and heart valves.
When M.R.'s surgery was scheduled, father opposed it. At the jurisdictional hearing, he testified that he had done so based on mother's representation that Leonhardt recommended waiting to do surgery until M.R. was 18 or 19 years old. Leonhardt's CARES *263 evaluation of M.R., however, noted the need for surgery and for follow-up with a pediatric cardiologist, and M.R.'s treating pediatric cardiologist testified to a lack of any medical literature favoring such a delay in treatment. The cardiologist testified that he had tried to explain to mother the need for early repair and that mother appeared not to understand.
Like M.R., 10-year-old E had unaddressed health concerns. She has an eye condition, strabismus, that can be treated in early stages with an eye patch or exercises but, if untreated, can cause an extreme loss of vision. E's strabismus was not treated and, as a result, she may need surgeryan outcome that would have been less likely if she had been seen by a pediatrician. Despite Leonhardt's explanation of the need for treatment, both father and mother believed that mother was adequately addressing the condition with eye exercises. Mother testified that professional care would not have helped E but "would have helped in this court case, because I could have proven that her eyes were not neglected, and I wouldn't be having this conversation." Father testified that, because mother had the same type of eye condition, he "do[es] a lot of consulting with [mother] on that." Father also testified that E had had a problem with fainting and that someone had suggested that she might have epilepsy, but those concerns had never been investigated by a doctor. Mother testified that E had fainted once, when father was medicating scratches on E's legs.
Father and mother testified that they now would seek medical care and check-ups for the childrentestimony that the juvenile court found not to be credible. The court also observed that neither parent displayed a sense of responsibility or emotion about what the children had suffered. We give considerable weight to the juvenile court's assessment of credibility. Geist, 310 Or. at 194, 796 P.2d 1193. On this record, even if father's counsel had asserted the applicability of ICWA, the result would have been the same as to the finding of medical neglect as a basis for jurisdiction. Father was not prejudiced with respect to that finding.[8]
Finally, we turn to the requirements of ORS 419B.340(7), which provides:
"When an Indian child is involved, the department must satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proven unsuccessful. Foster care placement may not be ordered in a proceeding in the absence of a determination, supported by clear and convincing evidence, including the testimony of expert witnesses, that the continued custody of the Indian child by the parent or Indian custodian is likely to result in serious emotional or physical injury to the Indian child."
When the juvenile court entered the jurisdictional/dispositional judgment, the requirements of ORS 419B.340(7) had not been met. If the applicability of ICWA had been asserted, presumably the juvenile court would have proceeded in compliance with that statute. With respect to the requirements of ORS 419B.340(7), father was prejudiced. Accordingly, the juvenile court must address that issue on remand.
Reversed and remanded.
NOTES
[1] We also inquired whether the parties would enter into a settlement under ORS 19.410 that would allow this court to remand to the juvenile court for reconsideration and possible reentry of the amended judgment. The parties did not reach an agreement.
[2] The state also contends that an ICWA determination can be made at any stage of a child custody proceeding. The juvenile court's authority to apply ICWA to ongoing matters, however, is a separate issue from its authority to amend a judgment during the pendency of an appeal from that judgment.
[3] ORAP 2.22(2) provides:
"This subsection applies to a motion for relief from an order or judgment filed in juvenile court under ORS 419B.923 during the pendency of an appeal.
"(a) If the copy of the motion required to be served on the appellate court is not entitled `MOTION FOR RELIEF FROM ORDER OR JUDGMENT UNDER ORS 419B.923,' the copy shall be accompanied by a letter of transmittal identifying the motion as a motion for relief under ORS 419B.923.
"(b) Any party to the appeal may request the appellate court to hold the appeal in abeyance pending disposition of the motion or allow the appeal to go forward. In the absence of a request from a party, the court on its own motion will review the motion for relief from judgment and decide whether to hold the appeal in abeyance. If the court does not order the appeal to be held in abeyance, the appeal will go forward.
"(c) If the appellate court holds an appeal in abeyance pending disposition of a motion for relief from order or judgment and subsequently the court receives a copy of the juvenile court's order deciding the motion, after expiration of the period within which an appeal from the order may [be] filed, the appellate court will decide whether to reactivate the case or take other action.
"(d) A party wishing to appeal an order deciding a motion for relief from order or judgment under ORS 419B.923 during the pendency of an appeal shall file a notice of appeal within the time and in the manner prescribed in ORS chapter 19. The notice of appeal as filed shall bear the same appellate case number assigned to the original notice of appeal."
We remind practitioners of the importance of compliance with those rules.
[4] ORS 19.270 provides, in part:
"(1) The Supreme Court or the Court of Appeals has jurisdiction of the cause when the notice of appeal has been served and filed as provided in ORS 19.240, 19.250 and 19.255. The trial court may exercise those powers in connection with the appeal as are conferred by law, and retains jurisdiction in the matter for the following purposes:
"(a) Deciding requests for attorney fees, costs and disbursements or expenses pursuant to ORCP 68 or other provision of law.
"(b) Enforcing the judgment, subject to any stay of the judgment.
"(c) Deciding a motion for judgment notwithstanding the verdict under ORCP 63.
"(d) Deciding a motion for new trial under ORCP 64.
"(e) Deciding a motion for relief from judgment under ORCP 71 B.
"* * * * *
"(4) Notwithstanding the filing of a notice of appeal, the trial court has jurisdiction, with leave of the appellate court, to enter an appealable judgment if the appellate court determines that:
"(a) At the time of the filing of the notice of appeal the trial court intended to enter an appealable judgment; and
"(b) The judgment from which the appeal is taken is defective in form or was entered at a time when the trial court did not have jurisdiction of the cause under subsection (1) of this section, or the trial court had not yet entered an appealable judgment.
"(5) Notwithstanding the filing of a notice of appeal, the trial court has jurisdiction:
"(a) To enter an order or supplemental judgment under ORCP 71 or ORS 19.275, 107.105(4) or 107.452; and
"(b) To enter an order or supplemental judgment for the purpose of implementing a settlement as allowed by ORS 19.410(3)."
[5] ORCP 71 C provides:
"This rule does not limit the inherent power of a court to modify a judgment within a reasonable time, or the power of a court to entertain an independent action to relieve a party from a judgment, or the power of a court to grant relief to a defendant under Rule 7 D(6)(f), or the power of a court to set aside a judgment for fraud upon the court."
[6] ORAP 5.40(8)(d)(v) lists, as one of the reasons that this court may exercise its discretion to review de novo, "Whether the trial court made an erroneous legal ruling, reversal or modification of which would substantially alter the admissible contents of the record (e.g., a ruling on the admissibility of evidence), and determination of factual issues on the altered record in the Court of Appeals, rather than remand to the trial court for reconsideration, would be judicially efficient." Here, father's arguments regarding ICWA and the adequacy of his counsel implicate the standard of proof applicable to the proceedings whether a preponderance of the evidence or clear and convincing evidence. Reviewing this case de novo is more judicially efficient than remanding the entire case for reconsideration.
[7] After being admitted to the hospital on July 4, A remained hospitalized at the time of the jurisdictional hearing in mid-October. When A contracted pneumonia in the hospital, father complained that staff were not allowing A enough visitors; father asserted that his sister, a registered nurse, had told him that a lack of visitors and movement was contributing to A's pneumonia.
[8] Father also contends that he is entitled to a new trial on the entire jurisdictional petition. In his view, the findings required under ORS 419B.340(7) cannot be made separately from the finding of neglect. We reject that argument without further discussion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332077/ | 106 Ga. App. 574 (1962)
127 S.E.2d 817
LESTER
v.
LUTTRELL.
39622.
Court of Appeals of Georgia.
Decided September 5, 1962.
Rehearing Denied September 21, 1962.
*575 Marson G. Dunaway, Jr., for plaintiff in error.
Robert Edward Surles, contra.
BELL, Judge.
When an attachment is returnable to the superior or county court, the plaintiff shall file his declaration at the first term. Code § 8-601. It is undisputed that no declaration was filed in this case after the attachment. However, the plaintiff contends that his petition for attachment was equivalent to a declaration, and even though it was defective, the defect was amendable and the judgment cured the defect. Code § 110-702.
In Mehring v. Charles, 58 Ga. 377, the Supreme Court held that the seizure of the defendant's property by process of attachment will give the court jurisdiction to enable the plaintiff to file his declaration against the defendant provided the plaintiff alleges in the declaration that the defendant's property has been attached and ". . . instead of praying process against the defendant, pray that the court will render a judgment that the property levied on may be sold in satisfaction of his demand." Ibid., p. 379. It appears that at least some reference to the previous attachment is requisite for a good or an amendable declaration. West v. Gainesville Nat. Bank, 32 Ga. App. 703, 707 (124 SE 733). See also Kolb v. Cheney, 63 Ga. 688, 691; and Wilson v. Stricker & Co. 66 Ga. 575 (2,4) 578.
*576 Viewed in the light of the above authorities, the petition in the present action is not sufficient to constitute a declaration in attachment as required by Code § 8-601. The defects inherent in the petition were not curable by the judgment. Anything to the contrary in Smith v. Jacksonville Oil Mill Co., 21 Ga. App. 679 (94 SE 900), must yield to the Supreme Court cases of Kolb and Wilson, supra.
Furthermore, the record reveals that there was no return of the writ of attachment. The return by the officer of the attachment writ is the foundation of the court's jurisdiction in all subsequent proceedings against the property attached. McReynolds v. Colclough, 146 Ga. 696 (3) (92 SE 206); Chastain v. Alford, 193 Ga. 551, 552 (19 SE2d 721).
The affidavit to the writ for the attachment was made before the clerk of the superior court and not before a judicial officer as required by Code § 8-109. If the attachment had been otherwise valid, for this reason it was absolutely void. Heard v. National Bank of Illinois, 114 Ga. 291 (2) (40 SE 266). Also see Worley Bros. Granite Co. v. Haskins, 105 Ga. App. 444, 448 (124 SE2d 663).
The trial court properly arrested the judgment and dismissed the attachment.
Judgment affirmed. Felton, C. J., and Hall, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332081/ | 127 S.E.2d 236 (1962)
257 N.C. 656
Carl Henry ROBERTS
v.
COCA-COLA BOTTLING COMPANY OF ASHEVILLE, INC.
No. 89.
Supreme Court of North Carolina.
September 19, 1962.
*237 Williams, Williams & Morris, by Robert R. Williams, Jr., Asheville, for defendant appellant.
Willson & Riddle, by Robert B. Willson, Asheville, for plaintiff appellee.
HIGGINS, Justice.
When the summons and order extending the time for filing the complaint were served, the defendant entered a special appearance and moved to quash the service and dismiss the action, contending the plaintiff's application and order failed to state the nature and purpose of the suit as required by G.S. § 1-121. Before the hearing on the first motion, however, the defendant filed (conditionally) "Answer, including motion," denying the court had acquired jurisdiction over the defendant. However, the answer alleged the plaintiff's injury occurred August 8, 1958, and the plaintiff's cause of action based on breach of warranty was instituted on August 24, 1961, by filing the complaint; and that the lapse of more than three years barred recovery.
After this Court on the former appeal affirmed the order denying the motion to dismiss, a further hearing was held upon the complaint, answer, and admissions. The court overruled the plea of the statute *238 of limitations and held as a matter of law (1) the plaintiff's complaint was not different in nature from that authorized in the application and order; (2) that the complaint actually filed did not constitute the beginning of a new action as of its filing date; (3) the action upon implied warranty related back to the summons and thereby escaped the defendant's plea of the statute of limitations.
The facts being admitted, the applicability of the statute of limitations became a question of law. The application and order extending the time to plead were, as previously decided, barely sufficient to enable the plaintiff to file a complaint stating a cause of action for damages based on negligence. Such a complaint would relate back to the date of the summons. However, when the plaintiff failed to file a complaint based on negligence but elected to allege a cause based on breach of warranty, the new cause must be deemed to have been instituted on the date the complaint was actually filed. "In the absence of statute otherwise providing, the general rule is that an amendment introducing a new cause of action does not relate back to the commencement of the action, with respect to limitations, but is the equivalent of a new suit, so that the statute of limitations continues to run until the time of the filing of the amendment." * * * "In each instance, the ultimate determinative question is whether the amendment states a new cause of action." Stamey v. Membership Corp., 249 N.C. 90, 105 S.E.2d 282; George v. Atlanta & Charlotte R. R., 210 N.C. 58, 185 S.E. 431; Kinston v. Atlantic & N. C. R. R., 183 N.C. 14, 110 S.E. 645.
No reason suggests itself why the rule should be different when a plaintiff obtains leave to file an action in tort, does not do so, but instead files one in contract. The action in contract is instituted when the complaint is filed. "Recovery must be based on the cause of action alleged. It cannot rest on a different legal right." Wynne v. Allen, 245 N.C. 421, 96 S.E.2d 422.
For the reasons assigned, we hold the trial court should have entered judgment sustaining the plea of the statute of limitations and dismissing the action. The cause is remanded to the Superior Court of Buncombe County for the entry of such an order.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332061/ | 273 S.C. 75 (1979)
254 S.E.2d 299
The STATE, Respondent,
v.
James Robert RIVERS, Sr., Appellant.
20937
Supreme Court of South Carolina.
April 17, 1979.
*76 John H. Douglas, Charleston, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Brian P. Gibbes, Columbia, and Sol. Capers G. Barr, III, Charleston, for respondent.
April 17, 1979.
RHODES, Justice:
Appellant, James Robert Rivers, Sr., was arrested and charged with kidnapping and statutory criminal sexual conduct. By a verdict of the jury, the appellant was found guilty on both charges and sentenced to life imprisonment for the kidnapping and thirty years imprisonment for the criminal sexual conduct. The principal question advanced in this appeal is whether the trial court erred in receiving testimony from the appellant's wife regarding his prior acts of sexual misconduct. We reverse.
There is abundant evidence which, if believed by the jury, warrants the conclusion that the appellant committed criminal sexual conduct upon the prosecuting witness under unusually aggravated circumstances, including hitting her in the face and on the stomach. Appellant's version of the matter was that the prosecutrix consented to intercourse and oral sex.
After the prosecutrix had testified to the circumstances of the assault by the accused, the State offered the testimony of Jewel Rivers, appellant's wife for 26 years, regarding certain sexual practices of the appellant during their marriage. Mrs. Rivers testified that on one occasion in 1976 the appellant, while under the influence of drugs and alcohol, had employed the use of a vibrator to stimulate her and a burning cigarette to inflict pain upon her upper legs. Regarding the sexual conduct of appellant on this same occasion, Mrs. Rivers *77 further testified that her husband was incapable of sustaining an erection and, upon such failure, became angry.
All of this testimony was objected to and the trial court overruled the objections on the stated ground that it was relevant circumstantial evidence which was for the "jury to weigh and equate the probative value as to the testimony, believability, and as to the method of operation used if they find it was used."
It is well settled that evidence of prior crimes or misconduct is not admissible to prove the specific crime charged unless the submitted evidence tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identify of the person charged with the commission of the crime on trial. State v. Anderson, 253 S.C. 168, 169 S.E. (2d) 706, cert. denied, 396 U.C. 948, 90 S. Ct. 386, 24 L.Ed. (2d) 253 (1969); State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). That the evidence be strictly scrutinized before admission under one of the above enumerated exceptions was emphasized by the Lyle Court:
Whether the requisite degree of relevancy exists is a judicial question to be resolved in the light of the consideration that the inevitable tendency of such evidence is to raise a legally spurious presumption of guilt in the minds of the jurors. Hence, if the Court does not clearly perceive the connection between the extraneous criminal transaction and the crime charged, that is, its logical relevancy, the accused should be given the benefit of the doubt, and the evidence should be rejected. (Emphasis added.)
Id. at 125 S.C. 412, 118 S.E. at 807 (citations omitted).
The State maintains that the evidence was properly admitted because it was offered: (1) to prove the identity of the appellant as perpetrator of the offense and (2) to show *78 a common scheme or plan by demonstrated similarities between the prior incident described by Mrs. Rivers and the crime in question. For admission under either theory, our cases have required that the relationship between the acts must have established such a connection between them as would logically exclude or tend to exclude the possibility that the present crime could have been committed by another person. State v. Lyle, supra. Other courts have generally held that a defendant's previous sexual conduct with persons other than the named prosecutrix is inadmissible unless the close similarity of the charged offense and the previous act enhances the probative value of the evidence so as to overrule the prejudicial effect. II Wigmore on Evidence, 3d Ed., § 398, p. 355. Annot. 77 A.L.R. (2d) 841, 868 (1961). See also, Harris v. State, 189 Tenn. 635, 227 S.W. (2d) 8 (1950). The rationale for this rule is that the overwhelming result of admitting unconnected sexual relationships is to establish an accused's character or propensity to engage in the alleged sexual conduct as a basis for inferring that he committed the charged crime. State v. Mason, 79 N.M. 663, 448 P. (2d) 175 (1968). See also W. Reiser, Evidence of Other Criminal Acts, 28 S.C.L.R. 125 (1976).
The argument of the appellant is that the testimony concerning the sexual activities with his wife is not relevant because it bears insufficient similarity to the acts allegedly performed on the prosecutrix and, therefore, does not comply with the rigid rule of admissibility above set forth. We agree.
While the State attempted to construct a specific pattern of sexual conduct exhibited by the appellant when sexually frustrated, the two instances are radically different both in terms of the objects that were used and in terms of the type of pain inflicted. The prosecutrix testified to the insertion of foreign objects into her vagina while Mrs. Rivers' testimony of the appellant's use of the vibrator indicated that it was never inserted, but employed on the exterior portion of her *79 body. The prosecutrix' testimony revealed that her assailant beat her about the face and stomach upon becoming sexually frustrated while Mrs. Rivers' testimony described cigarette burns that she had received from the accused. The only common elements in these described activities appear to be sexual frustration and violence. In our view, the fact that the accused performed bizarre sexual acts upon his wife has no tendency to establish a subsequent scheme by the accused to forcibly abduct and assault the prosecutrix. While the State argues admissibility on the ground of proving the identity of the perpetrator, the dissimilarity which we have above found, nullifies the probative value of the testimony for this purpose.
Unable to clearly perceive the connection between the acts as required by Lyle, supra, we conclude that the testimony should have been excluded. The prejudice in this testimony is manifest, and a new trial must be granted.
The errors complained of in the remaining exceptions are not likely to be presented on the retrial of this case and, accordingly, are not treated in this opinion.
Reversed and remanded.
LEWIS, C.J., and LITTLEJOHN, NESS and GREGORY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743520/ | 511 So. 2d 342 (1987)
William MENDENHALL, Appellant,
v.
STATE of Florida, Appellee.
No. 86-1176.
District Court of Appeal of Florida, Fifth District.
July 2, 1987.
Rehearing Denied August 20, 1987.
James B. Gibson, Public Defender, and Daniel J. Schafer, Assistant Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
COWART, Judge.
This is another reversal of a sentence departing from the recommended guidelines sentence.
The trial court's written reasons for departure were
1) The totality of the facts show the defendant is an on-going danger to society with no likelihood of rehabilitation. Moore v. State, 483 So. 2d 37 (Fla. 1st DCA 1986).
2) The defendant has a pattern of drinking to excess and the defendant was drinking at the time of the offense. Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985).
Danger to society is not a clear and convincing reason for departure in this case. Keys v. State, 500 So. 2d 134 (Fla. 1986); Williams v. State, 492 So. 2d 1308 (Fla. 1986); Vega v. State, 498 So. 2d 1294 (Fla. 5th DCA 1986). This does not mean that danger to society can never be a clear and convincing reason for departure. In Whitehead v. State, 498 So. 2d 863 (Fla. 1986) the court said that although some indicia of future danger to society is included within the guidelines,
Other evidence ... which establishes beyond a reasonable doubt that the defendant poses a danger to society in the future can clearly be considered justification for a departure from the recommended sentence.
498 So.2d at 865. The record, however, does not support that reason in this case.
The unlikelihood of rehabilitation is not a valid reason for departure. Todd v. State, 503 So. 2d 451 (Fla. 5th DCA 1987); Williamson v. State, 496 So. 2d 886 (Fla. 2d DCA 1986).
Intoxication and drug dependency are not valid reasons for departure. Barbera v. State, 505 So. 2d 413 (Fla. 1987). See also Scurry v. State, 489 So. 2d 25 (Fla. 1986) (quashing Scurry v. State, 472 So. 2d 779 (Fla. 1st DCA 1985), which the trial court cited in its second reason for departure in this case); Vance v. State, 475 So. 2d 1362 (Fla. 5th DCA 1985).
The departure sentence is vacated and the cause remanded with directions that a sentence be imposed within the recommended guidelines sentence.
*343 SENTENCE VACATED; CAUSE REMANDED.
DAUKSCH and ORFINGER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332734/ | 161 Ga. App. 219 (1982)
291 S.E.2d 249
H. R. H. PRINCE LTC. FAISAL M. SAUD
v.
BATSON-COOK COMPANY.
62597.
Court of Appeals of Georgia.
Decided January 27, 1982.
Rehearing Denied February 10, 1982.
Nicholas P. Chilivis, Gary G. Grindler, Thomas D. Harper, for appellant.
Thomas H. Rogers, Jr., J. Littleton Glover, Jr., for appellee.
SOGNIER, Judge.
Prince Faisal entered into a construction contract with Batson-Cook Company for improvements to be made on his home. Certain changes in the original agreement were ordered and approved by Prince Faisal. A dispute arose over these changes and the Prince's liability for payment to Batson-Cook regarding work done pursuant to the changes. Batson-Cook asked for arbitration of the dispute. Prince Faisal, claiming inter alia that the contract did *220 not require arbitration of the dispute, filed a petition for declaratory and injunctive relief and for a stay of arbitration. A temporary restraining order and stay of arbitration was granted pending a hearing on the matter. After the hearing, the trial court found that the parties were bound by the terms of the contract, which included a provision to arbitrate disputes, that the arbitration agreement was enforceable and that there was an actual dispute to be arbitrated. Accordingly, the trial court set aside the temporary restraining order and denied Prince Faisal's petition for declaratory relief. We affirm.
1. Appellant contends that the trial court erred in denying his petition to stay arbitration because the contract did not require arbitration of disputes. We do not agree.
The contract is an American Institute of Architects' Standard Form of Agreement between Owner and Contractor, and specifically provides, by amendment to the form provisions: "The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions) . . . These form the Contract, and all are as fully a part of the Contract as if attached to this Agreement, or repeated herein." The "Conditions of the Contract" include the "AIA General Conditions," which include a provision stating: "Any claim, dispute or other matter in question between the Contractor and the Owner referred to the Architect . . . shall be subject to arbitration upon the written demand of either party." We find the provisions of the contract regarding arbitration clear and unambiguous and binding on the parties. See Pace Const. Corp. v. Houdaille-Duval-Wright Div., 247 Ga. 367 (276 SE2d 841) (1981).
2. Appellant further contends that the arbitration provisions in the contract are unenforceable because they fail to comply with Georgia law. Code Ann. § 7-301 et seq. Appellant claims the contract provides that the dispute be submitted to the architect prior to arbitration, that the architect is an arbitrator, and that this procedure is unenforceable under Georgia law. However, the architect is not an arbitrator. The contract provides that the architect is the Owner's representative during construction and until final payment is due; any claim or dispute referred to the architect is then subject to arbitration. We find appellant's contention without merit.
3. Batson-Cook filed a claim of lien against the property of Prince Faisal in the amount of $195,675.88. By way of counterclaim in the instant suit, Batson-Cook demanded judgment and a lien against appellant's property. Appellant contends that said counterclaim was not timely filed, and that by asserting said counterclaim appellee either waived arbitration or is estopped from seeking arbitration.
(a) Appellee moved the trial court to allow it to file a *221 counterclaim by amendment in accordance with the provisions of Code Ann. § 81A-113 (f). After a hearing on the motion the trial court permitted the counterclaim by amendment, finding that appellee's failure to set up the counterclaim had been due to excusable neglect, inadvertence and oversight, and that justice required the allowance of the amendment. We find no error in the trial court's allowance of the counterclaim by amendment. Kitchens v. Lowe, 139 Ga. App. 526, 528 (228 SE2d 923) (1976).
(b) Next, appellant contends that the trial court erred in denying his stay of arbitration because appellee waived his right to arbitration under the contract by filing his counterclaim for judgment and foreclosure on a claim of lien. In other words, appellant contends that appellee's remedies are mutually exclusive and once Batson-Cook decided to proceed with its remedy under the lien statute (Code Ann. § 67-2001 et seq.), it was precluded from enforcing its right of arbitration under the contract. We note the trial court permitted the counterclaim to foreclose the lien to be filed pending his decision on the stay of arbitration. This was done to protect appellee's lien rights under the lien statute.
Appellant's argument raises an interesting issue which our courts have not yet decided. We have searched the record and have found nothing to indicate that appellant raised the issue of waiver in the trial court. Despite the fact that appellant did not properly raise the issues of waiver and estoppel, we note that no waiver of appellee's arbitration rights took place under the circumstances of this case.
"`While a distinct stipulation in a contract may be waived by the conduct of the parties, it must appear that it was the intention of the parties to treat such stipulations as no longer binding.' [Cit.]" Parker v. Schochat, 113 Ga. App. 13, 15 (1) (147 SE2d 58) (1966). Here, where appellee consistently sought to enforce its right to arbitration under the contract, it is clear that it had no intention of waiving such a right. See A. Sangivanni and Sons v. F. M. Floryan and Co., 262 A2d 159 (Conn., 1969). Had appellee flagrantly disregarded arbitration as a contractual prerequisite, filed a claim of lien and a complaint of foreclosure without attempting to enforce its arbitration rights, a waiver of the arbitration provisions of the contract may have occurred. See Oakdale Park Ltd. v. Byrd, 346 S2d 648 (Fla. App. 1977).
Appellee is entitled to protect its rights to a materialmen's lien by filing a claim of lien and by filing a petition to foreclose said lien at the same time it is pursuing its arbitration rights under the contract. In fact, we agree with the Florida Court of Appeal that the operation of the Arbitration Code (Ga. Code Ann. § 7-301 et seq.) and the materialmen's lien law is interdependent and compatible. Beach *222 Resorts Intern. v. Clarmac Marine Const., 339 S2d 689, 692 (Fla. App., 1976).
Here, appellee sought to resolve a dispute under the contract by demanding arbitration, and responded to appellant's attempt to stay arbitration by seeking to enforce the contract. However, in order to protect its statutory lien rights, appellee filed its claim of lien within three months after completion of the work and filed its counterclaim against the owner within 12 months from the time the same would become due. Code Ann. § 67-2002. Batson-Cook alleged in its claim of lien that the amount for which the lien was claimed was due on May 10, 1980. Its counterclaim was filed April 10, 1981.
If the trial court had stayed arbitration, appellee would have been able to proceed with its claim against appellant under Code Ann. § 67-2002. Since the trial court correctly ordered arbitration, the correct procedure is to stay judicial proceedings in the lien foreclosure action and proceed to arbitration. If judicial enforcement of an arbitration award in favor of Batson-Cook is necessary, appellee (if it is otherwise entitled to a materialmen's lien) may enforce said award by means of the lien foreclosure. See Beach Resorts, supra, at 692. Thus, we do not view appellee's counterclaim to foreclose its claim of lien as inconsistent with its attempt to enforce arbitration under the contract, nor does said counterclaim amount to a waiver of Batson-Cook's contractual right to arbitrate. Accord, EFC Develop. Corp. v. F. F. Baugh Plumbing & H. Inc., 24 Ariz. App. 566 (540 P2d 185) (1975).
Judgment affirmed. Shulman, P. J., and Birdsong, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332746/ | 229 Ga. 746 (1972)
194 S.E.2d 405
GRANTLING
v.
THE STATE.
27342.
Supreme Court of Georgia.
Submitted July 10, 1972.
Decided November 20, 1972.
Thomas M. Jackson, John H. Ruffin, Jr., for appellant.
Ben J. Miller, District Attorney, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Courtney Wilder Stanton, Assistant Attorney General, Daniel I. MacIntyre, Deputy Assistant Attorney General, for appellee.
GUNTER, Justice.
The appellant was convicted of rape in the trial court and was given a death sentence. He filed a motion for new trial which was overruled by the trial court, and he has now come here for review.
The appellant has insisted on four alleged errors here. We deem those errors to be without merit, and the judgment below must be affirmed except for that part of the judgment imposing the death penalty.
1. The first error insists that the jury that tried the appellant was not representative of the community in which he was tried. The first part of this complaint is that the State used its peremptory challenges to remove all black jurors from the jury finally selected for the trial. We have consistently held that peremptory challenges in selecting a jury may be arbitrarily made by either party, and no reason needs to be given for the exercise of this right given by law. Watkins v. State, 199 Ga. 81 (33 SE2d 325). This case does not fall within the very narrow exception to the general rule as set forth in Swain v. Alabama, 380 U.S. 202 (85 SC 824, 13 LE2d 759).
The second part of this alleged error complains that jurors *747 opposed to capital punishment were excluded from the jury. The decision of the Supreme Court of the United States abolishing the death penalty under present capital punishment statutes makes this contention moot. See Stewart v. Massachusetts, 408 U.S. 845 (92 SC 2845, 33 LE2d 744). See also in this connection this court's decision in Fountain v. State, 228 Ga. 306 (185 SE2d 62) (1971).
2. Appellant's second contention is that the State's Exhibits 16 and 17, a scrap of cloth and a hair barrette, should not have been admitted in evidence over objection by the appellant. The basic claim here is that no proper foundation was laid to connect these items with similar items worn by the victim of the crime. A review of the transcript convinces us that there was sufficient foundation for the introduction of these items in evidence, and the weight or persuasive value of this evidence was within the domain of the jury. The trial court did not commit error in admitting these items in evidence over the objection offered.
3. Appellant further objected to the introduction of State's Exhibits 12 and 13, a strip of chrome from a vehicle and the license tag from a vehicle, on the ground that they were procured by a warrantless and illegal search in violation of the 4th and 14th Amendments to the United States Constitution. These items were from a vehicle that was not owned by the appellant. The Supreme Court of the United States has held that "a 4th Amendment violation can be successfully urged only by those whose rights were violated by the search itself, and not those who are aggrieved solely by the introduction of damaging evidence." Alderman v. United States, 394 U.S. 165 (1) (89 SC 961, 22 LE2d 176). It was not error to admit these items in evidence.
4. The fourth alleged error insisted upon complains of two parts of the court's charge to the jury. We have reviewed the entire charge very carefully, and it is not susceptible to the criticisms offered here by appellant. This alleged error is without merit.
*748 The judgment of conviction is affirmed except for that portion thereof which imposes the death penalty. Stewart v. Massachusetts, 408 U.S. 845, supra.
Direction is given to the trial court as follows: The presiding judge in the trial court shall enter a judgment sentencing the appellant to be imprisoned for the balance of his life, this being the only lawful sentence which may be entered upon the conviction and finding of the jury that the appellant should receive the maximum sentence permitted by law.
Further direction is given that the appellant and his counsel of record be served with a copy of the life sentence within five days from the date of entry.
Judgment affirmed with direction. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332753/ | 162 Ga. App. 349 (1982)
291 S.E.2d 423
NUTTER
v.
THE STATE.
63378.
Court of Appeals of Georgia.
Decided May 13, 1982.
Theodore S. Worozybt, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Mike Whaley, H. Allen Moye, Thomas W. Hayes, Assistant District Attorneys, for appellee.
SHULMAN, Presiding Judge.
Convicted upon a bench trial of two counts of violating the Georgia Controlled Substances Act (Code Ann. Ch. 79A-8, Ga. L. 1974, p. 221 et seq.), Nutter appeals the overruling of his motion to suppress evidence.
A warrant was obtained to search Nutter's residence based upon the affidavit of a police officer that on November 30, 1978, he had been told by a reliable informant who "was present at the above address between the dates of 11-26-78 and 11-30-78 [that he] did observe [Nutter and another man] store and use Marijuana." Nutter testified that at no time on those dates was anyone else in the house with him, and he asserts on appeal that the state failed to prove probable cause because there was no probative evidence to establish that what the informer told the police was true.
The appellant contends that where, as here, the defendant, by sworn testimony subject to cross examination, makes a showing that a material part of the affidavit is false, the burden is on the state to present at least a minimal corroboration of the hearsay evidence contradicted by the testimony of the defendant. In Franks v. Delaware, 438 U.S. 154 (98 SC 2674, 57 LE2d 667), the U. S. Supreme Court established that a criminal defendant has the right under the Fourth Amendment to challenge, subsequent to the ex parte issuance of a search warrant, the truthfulness of factual statements made in the affidavit supporting the warrant. Under the Franks decision, "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Id., p. 155.
*350 Appellant's reliance on Franks as authority for reversal is misplaced, however, and his arguments must fail. "[T]he challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted. . . is only that of the affiant, not of any nongovernmental informant." Id., p. 171.
Appellant sought through his own uncorroborated testimony to impeach the veracity of the informant, but alleged no misconduct or deliberate falsehood on the part of the officers executing the warrant. In Franks, the court specifically declined to consider the "difficult question whether a reviewing court must ever require the revelation of the identity of an informant once a substantial preliminary showing of falsity has been made." Id., p. 170. Appellant made no such substantial showing.
Appellant was afforded a full and thorough review in accordance with all the criteria of Franks, and our review of the transcript convinces us that the trial court correctly determined that there was no showing of lack of probable cause under the procedures set forth therein.
Judgment affirmed. Quillian, C. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724896/ | 396 Mich. 97 (1976)
237 N.W.2d 474
BOYLES
v.
BROWN
Docket No. 57585.
Supreme Court of Michigan.
Decided January 29, 1976.
Dinan, Schenden & Schaden, P.C. (by Philip G. Ingraham), for plaintiff.
Temple & Cutler for defendant.
MEMORANDUM OPINION.
William B. Brown, in 1970, after acknowledging he was the father of a child born to Margaret Boyles, was ordered by a judgment of filiation to contribute to the support of that child.
In 1975, proceeding under MCLA 722.720; MSA 25.500, Margaret Boyles sought additional support for the child from Brown, alleging that Brown's income had increased more than 100 percent between 1970 and 1975. The trial judge denied her motion and denied a rehearing on the motion in an order entered July 7, 1975.
On July 17, 1975, the Court of Appeals received a claim of appeal from appellant as she attempted to appeal to the intermediate appellate court as of right. Her claim of appeal was returned by an assistant clerk. Appellant re-filed the claim of appeal and it was dismissed, on a panel's own motion, after the panel recited that the order *98 being appealed "is not a final judgment appealable as of right to this Court but is rather a post-judgment interlocutory order".
The appeal of right should have been accepted by the Court of Appeals. Appellant is seeking leave to appeal to this Court, and this Court, pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, reverses the Court of Appeals and orders appellant's claim reinstated as an appeal as of right. The precedential authority and reasoning of Gherardini v Ford Motor Co, 394 Mich. 430; 231 NW2d 643 (1975), apply to this case.
KAVANAGH, C.J., and WILLIAMS, LEVIN, COLEMAN, FITZGERALD, LINDEMER, and RYAN, JJ., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262914/ | 306 A.2d 725 (1973)
Ronald GRIFFIN et al., Plaintiffs Below, Appellants,
v.
Howard Frank GRANGER, Defendant Below, Appellee.
Supreme Court of Delaware.
May 7, 1973.
James J. Horgan and Jack R. Salley, Wilmington, for plaintiffs below, appellants.
C. Waggaman Berl, Jr., of Booker, Green, Shaffer, Berl & Wise, Wilmington, for defendant below, appellee.
Before WOLCOTT, C. J., and CAREY and HERRMANN, JJ.
*726 HERRMANN, Justice:
In this automobile negligence case, the plaintiffs appeal from the Superior Court's grant of the defendant's motion to quash substituted service attempted by the plaintiffs under the Delaware Non-Resident Motorist Statute, 10 Del.C. § 3112.[1]
*727 In accordance with the provisions of § 3112(b), service of process was made upon the Secretary of State and notice was sent by registered mail to the defendant's last known address. The notice was returned by the postal authorities with the notation that the defendant had moved and that no forwarding address was known. Thereupon, the plaintiffs' attorney filed proof of non-receipt of the notice in accordance with § 3112(e). However, no further notice of the commencement of the action was sent to the defendant in accordance with § 3112(b).
The Superior Court held that the sending of a second notice to the defendant by registered mail was a jurisdictional requirement under § 3112(b), citing Purnell v. Dodman, Del.Super., 297 A.2d 391 (1972). Upon this appeal, the plaintiffs contend that the mailing of a second notice under the circumstances would have been "futile"; that the General Assembly could not have intended the doing of a futile act as a jurisdictional prerequisite; that, therefore, jurisdiction over the defendant was acquired by service of process upon the Secretary of State and the mailing of the first specified notice, without more.
The plaintiffs' argument falls before the plain mandate of the Statute. The legislative evolution of § 3112(b) demonstrates that the General Assembly deliberately added the requirement of a second notice after "non-receipt" (as distinguished from refusal of delivery) of the first notice: Originally, § 3112(b) provided for the mailing of one notice. 35 Del.L. Ch. 225; 1935 Code § 4590. Following Monacelli and Castelline, § 3112 was generally rewritten in 1955. 50 Del.L. Ch. 333. For present purposes, it is sufficient to note that the requirement of one mailed notice was retained in § 3112(b), and that the present § 3112(e) was added. These subsections distinguished for the first time, legislatively, a "non-receipt" from a refusal of delivery of the notice.[2] Three years later, the General Assembly made one specific further change in § 3112(b) by adding the present language hereinafter italicized: "* * *; provided, that not later than seven days following the filing of the return of services of process in the Court in which the civil action is commenced or following the filing with the Court of the proof of the non-receipt of notice provided for in subsection (e) of this section, the plaintiff or a person acting in his behalf shall send by registered mail to the non-resident defendant, * * * a notice * * *." See 51 Del.L. Ch. 341, Section 1 (1958).
There can be no doubt that the addition in § 3112(b) of the italicized language was deliberate and intentional; nor can there be any doubt that thereby the Legislature intended to require a second notice, after a non-receipt of the first, which would have all the formality and jurisdictional significance as the first notice.
We do not adjudge the wisdom of a legislative scheme. It may well be, as the plaintiffs contend, that a second notice, sent so soon after the first has been returned for no forwarding address, is an "exercise in futility". We think, however, that the 1958 requirement of a follow-up notice, after the return of a non-receipt of the first, was the continued legislative pursuit of maximum fairness and of the constitutionally requisite "scheme of procedure which will make reasonably certain that the non-resident defendant receives notice of the fact that he has been sued, and which insures that he have a fair opportunity to defend against the action." Castelline v. Goldfine Truck Rental Service, Del. Supr., 112 A.2d 840, 843 (1955). Although a second notice may be futile on occasion, it was obviously deemed by the Legislature to be necessary or desirable for those instances when a second notice after a non-receipt would not be futile. In any event, *728 the statutory requirement of a second notice, after a non-receipt of the first, was deliberately added; its mandate is clear and unequivocal; it may not be denigrated to something less than a jurisdictional requirement.
Obviously, the manner of the insertion of the second notice requirement into § 3112(b) accorded to the second notice the same jurisdictional significance as was accorded the first notice; both provisions follow the same jurisdictional prefatory language. We find no merit in the plaintiffs' contention to the contrary; nor in their reliance upon Lightburn v. Delaware Power & Light Co., Del.Supr., 2 Storey 415, 158 A.2d 919 (1960).
Accordingly, we hold that the mailing of a second notice after a non-receipt of the first, in compliance with § 3112(b), is a jurisdictional requirement under the Delaware Non-Resident Motorist Statute.
The motion to quash was correctly granted.
Affirmed.
NOTES
[1] 10 Del.C. § 3112 provides in pertinent part:
"§ 3112. Service of process on non-resident operators of motor vehicles
"(a) Any non-resident owner, operator or driver of any motor vehicle, who accepts the privilege extended by law to non-residents of this State to operate or drive such motor vehicles on the public streets, roads, turnpikes or highways of this State by operating or driving such motor vehicle or by having the same operated or driven on any public street, road, turnpike or highway of this State shall by such acceptance of the privilege be deemed thereby to have appointed and constituted the Secretary of State of this State, his agent for the acceptance of legal process in any civil action against such nonresident owner, operator or driver arising or growing out of any accident or collision occurring within this State in which such motor vehicle is involved. The acceptance shall be a signification of the agreement of such non-resident that any such process when so served shall be of the same legal force and validity as if served upon such non-resident personally within this State, * * *.
"(b) Service of the legal process provided for in this section * * * shall be made upon the Secretary of State of this State in the same manner as is provided by law for service of writs of summons, and when so made shall be as effectual to all intents and purposes as if made personally upon the defendant within this State; provided, that not later than seven days following the filing of the return of services of process in the Court in which the civil action is commenced or following the filing with the Court of the proof of the non-receipt of a notice provided for in subsection (e) of this section, the plaintiff or a person acting in his behalf shall send by registered mail to the non-resident defendant, or to his executor or administrator, a notice consisting of a copy of the process and complaint served upon the Secretary of State and the statement that service of the original of such process has been made upon the Secretary of State of this State, and that under the provisions of this section such service is as effectual to all intents and purposes as if it had been made upon such non-resident personally within this State.
* * * * *
"(e) The plaintiff or his counsel of record in the action may within seven days following the return of any undelivered notice mailed in accordance with the provisions of paragraph (b) of this section other than a notice, delivery of which is shown by the notation of the postal authorities on the original envelope to have been refused by the defendant or his agent, file with the court in which the civil action is commenced proof of the non-receipt of the notice by the defendant or his agent, which proof shall consist of the usual receipt given by the post office at the time of mailing to the person mailing the registered article containing the notice, the original envelope of the undelivered registered article, and an affidavit made by or on behalf of plaintiff specifying (1) the date upon which the envelope containing the notice was mailed by registered mail, (2) the date upon which the envelope containing the notice was returned to the sender, (3) that the notice provided for in paragraph (b) of this section was contained in the envelope at the time it was mailed, and (4) that the receipt, obtained at the time of mailing by the person mailing the envelope containing the notice, is the receipt filed with the affidavit."
For the evolution of this Statute, see Monacelli v. Grimes, 9 Terry 122, 99 A. 2d 255 (1953); Castelline v. Goldfine Truck Rental Service, 10 Terry 155, 112 A.2d 840 (1955); 50 Del.L. Ch. 333 (1955); 51 Del.L. Ch. 341 (1958).
[2] In this connection, see Creadick v. Keller, Del.Super., 5 W.W.Harr. 169, 160 A. 909 (1932); Castelline v. Goldfine Truck Rental Service, Del.Supr., 112 A.2d 840 (1955). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262923/ | 269 Md. 454 (1973)
306 A.2d 539
WASHINGTON COUNTY TAXPAYERS ASSOCIATION, INC. ET AL.
v.
BOARD OF COUNTY COMMISSIONERS OF WASHINGTON COUNTY, MARYLAND ET AL.
[No. 328, September Term, 1972.]
Court of Appeals of Maryland.
Decided July 6, 1973.
The cause was argued before MURPHY, C.J., and BARNES, SINGLEY, SMITH and LEVINE, JJ.
Vincent R. Groh for appellants.
James F. Strine for appellees.
SMITH, J., delivered the opinion of the Court.
This case is a challenge to the adoption of the comprehensive plan for Washington County. The attack is based upon contentions of inadequate notice of a public hearing and of an improper public hearing by the Washington County Planning and Zoning Commission. We agree with the trial judge that the plan was properly adopted.
We suspect that a part of the problem in this case may be some confusion relative to the terms planning and zoning. On this subject 101 C.J.S. Zoning § 4 (1958), states:
"While `zoning' and `planning' have been considered so closely akin as to constitute a single concept, and there is a definite and harmonious relationship between them, they do not cover identical fields of municipal endeavor, and the terms are not synonymous or interchangeable, although they are sometimes used interchangeably. They are not identical in concept, although closely related therein and there is a distinction, as well as *456 a difference, between them, zoning being concerned primarily with the use of property.
"So, zoning may not entirely exclude planning; planning embraces zoning, in a general way, but the converse is not true, municipal `planning' being a term of broader significance than `zoning.'" Id. at 671-72.
See also E. Yokley, Zoning Law and Practice § 1-2 (3rd ed. 1965), and Mansfield & Swett, Inc. v. West Orange, 120 N.J.L. 145, 149, 198 A. 225 (1938), where it is said that planning "connotes a systematic development contrived to promote the common interest in matters that have from the earliest times been considered as embraced within the police power," or State v. Ohio Power Co., 163 Ohio St. 451, 460, 127 N.E.2d 394 (1955), stating that planning "embraces the systematic and orderly development of a community with particular regard for streets, parks, industrial and commercial undertakings, civic beauty and other kindred matters properly included within the police power."
Most of the counties of Maryland, including Washington County, have had the power to set up planning commissions and to adopt county plans since the passage of Chapter 599 of the Acts of 1933. Pursuant to the authority of what is now Code (1957, 1970 Repl. Vol.) Art. 66B, § 3.01, Washington County proceeded to appoint such a commission. By § 3.05 it became "the function and duty of the commission to make and approve a plan [to] be recommended to the [County Commissioners of Washington County] for adoption...." Upon adoption the plan would "serve as a guide to public and private actions and decisions to insure the development of public and private property in appropriate relationships...." As a minimum it was required to contain "[a] statement of goals and objectives, principles, policies, and standards [to] serve as a guide for the development and economic and social well-being of [Washington County]," a land use element, a transportation plan element, a community facility plan element, and an element containing the planning commission's recommendations for land *457 development regulations to implement the plan. In the preparation of its plan the commission was mandated by § 3.06 to "make careful and comprehensive surveys and studies of present conditions and future growth of the jurisdiction, and with due regard to its relation to neighboring territory ... with the general purpose of guiding and accomplishing the coordinated, adjusted, and harmonious development of the jurisdiction, and its environs which [would], in accordance with present and future needs, best promote health, safety, morals, order, convenience, prosperity, and general welfare, as well as efficiency and economy in the process of development; including among other things, adequate provisions for traffic, the promotion of public safety, adequate provision for light and air, conservation of natural resources, the prevention of environmental pollution, the promotion of the healthful and convenient distribution of population, the promotion of good civic design and arrangement, wise and efficient expenditure of public funds, and the adequate provision of public utilities and other public requirements." Unless overruled as provided in § 3.08, once the plan is adopted "as a whole or for one or more geographic sections or divisions of the jurisdiction, no street, square, park or other public way, ground, or open space, or public building or structure, or public utility, whether public or privately owned, shall be constructed or authorized in the jurisdiction or major geographic section thereof until the location, character, and extent of such development shall have been submitted to and approved by the commission as consistent with the plan...."
Sec. 3.07 provides that "[b]efore recommending the adoption of the plan ... the commission shall hold at least one public hearing thereon, notice of the time and place of which shall be given by one publication in a newspaper of general circulation in the jurisdiction." Unlike the provisions relative to zoning where § 4.04 requires a hearing by the local legislative body (the county commissioners in this instance) before adoption of a zoning ordinance, no hearing by the County Commissioners of Washington County was mandated.
*458 Appellants Julian Oliver and Edgar W. King (taxpayers and residents of Washington County) and the Washington County Taxpayers Association, Inc., sued the County Commissioners of Washington County and the Washington County Planning and Zoning Commission seeking a declaratory judgment that the plan adopted by the County Commissioners of Washington County on October 12, 1971, was invalid, unconstitutional and unenforceable, together with an injunction against acting, administering, or enforcing or applying the provisions of the plan "to the Petitioners or their property."
The challenge is based upon a contention that the notice of public hearing was not legally adequate and that the hearing did not "afford the public the opportunity to speak against the plan and to oppose the concept of and the need for the same," believed by them to be mandated under § 3.07. They particularly refer in their objections relative to notice to the reference to "preliminary report" appearing in the notice. This was an obvious inadvertence or oversight since that terminology is found in § 3.05 (d) relative to the procedure for the adoption of zoning. The other contentions relative to the hearing are tied in with the appellants' second point, a claim that at the hearing they were not permitted to voice their objections to the adoption of any plan and that they were limited to an argument of three minutes per person. They say they take "the position that the purpose of a public hearing is to permit the public to state their positions for and against the issue under consideration, and to criticize as well as recommend, to present objections as well as approval and to protest."
The notice of public hearing read as follows:
"PUBLIC HEARING
October 6, 1971
7:00 P.M.
Court Room No. 1
Court House, Hagerstown, Maryland
"Pursuant to the provisions of Article 66B of the Code of Public General Laws of Maryland, entitled *459 Maryland Planning and Zoning Enabling Act, a preliminary report and proposed plan for Washington County, Maryland has been compiled for the Washington County Planning and Zoning Commission by William C. McDonnell Consultant, Baltimore, with Baker-Wibberly and Associates, Hagerstown, Maryland. The preparation of this report was financially aided through a federal grant of the Department of Housing and Urban Development, under the Urban Planning Assistance Program authorized by Section 701 of the Housing Act of 1954, as amended. Said report was also administered by the Maryland Department of Planning.
"Copies of said report and proposed plan for Washington County are on file with the County Commissioners, Washington County Planning and Zoning Commission and with all State and local planning agencies; and said report and proposed plan is available for inspection; and same is incorporated herein and made a part hereof by reference.
"Notice is hereby given that pursuant to the aforesaid statutory provisions that a public hearing will be held in Court Room No. 1 in the Court House, Hagerstown, Maryland on Wednesday, October 6, 1971, at 7:00 P.M. with reference to said preliminary report and proposed plan for Washington County, Maryland.
WASHINGTON COUNTY
PLANNING & ZONING COMM.
By: Donald R. Frush, Chairman
COUNTY COMMISSIONERS FOR
WASHINGTON COUNTY
By: W. Carlton Parsley, Clerk"
At the hearing the chairman of the planning commission announced that slips would be passed out, stating, "We ask *460 all that are here tonight to sign the little form that the secretaries have so that I don't miss anyone if you want to be heard." After noting that "four public information meetings on the Plan" had been held subsequent to its tentative approval by the commission and that 97 meetings had been held to gather the "views, comments and desires" of the Washington County community, the chairman referred to the procedure for adoption of a plan and the content of the then proposed plan itself. He then said:
"The Commission has established rules for this hearing. Each speaker will be allocated three minutes to present their opinion on the `Plan for the County.' No speaker will be allowed to take any greater time at this hearing as there are others who may want to speak. At this public hearing, all statements will be recorded on tape recorder and transcribed. Each speaker appearing at the microphone should give his or her name, address, affiliation, or group represented or if on own behalf. If three minutes are not enough time to present recommendations on the Plan, the remainder of his or her statement can be presented in writing prior to the 8th of October, 1971 and these written statements will be given consideration as though it had been made verbally at this public hearing. No speaker will be permitted to speak a second time at this hearing. This public hearing will continue until all have had an opportunity to present their views. We may be here 'til late morning."
Then, after referring to certain letters relative to the plan that had been received, the chairman stated that the commission would first hear from individuals. He then asked for "the sign-in sheets," and said:
"We will give everybody an opportunity both for and against or recommendations or however you want to consider it. Everyone will be heard. And I'm not a segregationist, so we're just going right *461 down the pile. If you have something to say when your name is called, we ask that you come to the microphone, present your name, whom you represent, and your statement. Three minutes will be verified by the attorney and he will nudge me at the end of those three minutes, and then we will have to ask that you give us the rest of your statement in writing. With that in mind, we will proceed to hear individuals. Starting with Mr. Richard Gucker [, Director of Regional and Local Planning Programs of the Maryland State Department of Planning,] to present a statement. There is `no' circled on here, but I am still going to give everyone an opportunity. If I call your name and you still don't want to give a presentation after reviewing some of the facts of the Plan, you may still want to say it looks good as those did down in the valley to me the other day."
The chairman then proceeded with the roll call. Many individuals indicated they had no comment. Some said a written statement would be submitted. Some praised the plan and urged its adoption. Some opposed the plan. Edgar W. King, one of the parties to this proceeding, and the attorney for appellants were each heard. Mr. King said in part in expressing his opposition:
"So, instead of protecting the individual, planning and zoning, in fact, stifles him and restricts his liberties without giving him protection against big money or political interest. Planning and zoning discriminates against the small individual and violates the basic principle of our free enterprise system. Planning and zoning offers no protection against big money and political interests who are able to change it almost at will. Planning and zoning is just another big step towards socialism. It takes away those liberties and rights of the individual and gives control to big government, *462 which breeds corruption among public officials.... All of the above statements can be very easily verified by checking any sections of this country that has planning and zoning."
Counsel for the appellants in his comments at the commission hearing said he was representing himself. He offered some criticisms of the proposed plan saying, "[T]he statistics in the book don't match with the recent Potomac Edison Marketing Survey. They're off terrifically. I'd like to know where they get them." He questioned "whether any consideration ha[d] been given to the effect on the tax rate when you effectively put out of development over a half of the prime land in the County." When the chairman asked for his specific recommendation, he responded with a suggestion that the commission "recheck the statistics." Counsel then voiced his "basic objection to [the plan] again [as] the waiving of the freedom of the individual against the needs of the public." When again asked for his recommendations, he stated his "recommendations [were] against it because of the burdens, the hindrances, inconvenience, expense, and the denial of the freedom of the individual which accompanies it," stating he thought "the possible benefit ... will ... fall short of the detriment caused by it," that "for that reason [he was] opposed to the Plan because it [was] running into the zoning," being "just the beginning," that after that would come "more regulations and more regulations," and he did not "see the need."
The notice informed the citizenry of Washington County that a "public hearing" would be held relative to the "proposed plan for Washington County, Maryland." We regard that as a notice calculated to inform any interested citizens of the need to be present if they desired to inform themselves or to express their views relative to the plan.
The orderly manner in which this hearing was conducted is in sharp contrast to that mentioned in Ford v. Baltimore County, 268 Md. 172, 179, 300 A.2d 204 (1973), where "it was next to impossible to get to the speakers' rostrum" and "the speakers who managed to reach the rostrum [could not] be *463 heard or make an intelligible talk because of the booing, hooting, catcalling and other shouting." In Ford written comments which were submitted were not read. We remanded Ford with directions that "a proper hearing" be held.
It is apparent in this case from the excerpts we have quoted that the persons present at the hearing were permitted to express their general opposition to the adoption of a comprehensive plan. On the subject of the time limitation we note that the commission made plain that it would consider any written comments, but no comments were filed subsequent to the hearing. We find of interest Inganamort v. Borough of Fort Lee, 120 N.J. Super. 286, 293 A.2d 720, 724 (1972), aff'd on other grounds, 303 A.2d 298 (1973), where a New Jersey statute mandated a public meeting relative to a municipal ordinance. The New Jersey court upheld a limit of five minutes upon each speaker initially and an additional five minutes after all speakers were heard. It said it found "nothing patently unreasonable with such limitations."
If there were not some limitation upon the time to be consumed by any one person at a hearing such as this where there is widespread public interest, many persons inevitably would be deprived of the right of orally expressing their views or such hearing would consume an inordinate amount of time and a person might well be placed at a serious disadvantage in attempting to make his views known. It is an unfortunate fact that those who desire to talk the longest do not always make the most forceful, intelligent, persuasive presentation, nor do their comments always contain the most substance, to all of which many appellate judges can attest. Even such an august body as the United States House of Representatives has for generations operated with a limitation upon debate. We ourselves have seen fit in Maryland Rule 846 a to limit oral argument in this Court. We hold that the three minute limitation here imposed, when coupled with the offer to transmit to the county commissioners with the typewritten transcript of the hearing the complete text of any written statement any *464 individual might submit, did not impair the validity of the hearing.
It must be borne in mind that the planning commission was not the legislative body. Insofar as this plan was concerned it had one function and only one function, to devise and to transmit to the county commissioners the best possible plan for Washington County, bearing in mind the criteria of Art. 66B, § 3.05 which we have earlier mentioned. It was to that end the hearing was held and to which the comments of those present should have been directed. It was not the function of the commission to determine whether there should be a plan. The county commissioners made that decision when they created the planning commission. If the appellants wished to oppose adoption of this particular plan or, notwithstanding the earlier decision of the legislative body to formulate and adopt a plan, they still wished to oppose adoption of any plan, then the place for such opposition was before the legislative body, not the planning commission.
It would appear that the prime item of concern of the appellants was not the master plan, but opposition to any zoning. The fact that a plan was adopted did not necessarily mean that it would be implemented by the later adoption of a comprehensive zoning ordinance. Point is made of the fact that the only public hearing provided on the adoption of a master plan is by the planning commission, with none being required by the county commissioners. Those opposed to any zoning undoubtedly had full opportunity to give vent to that opposition before adoption of the comprehensive zoning plan which we are advised later came into Washington County since under § 4.04 the county commissioners are not permitted to adopt a zoning ordinance without first holding a public hearing.
We find the comprehensive plan to have been validly adopted. The chancellor although concluding his opinion by stating he found "the plaintiffs' contentions without merit," nevertheless signed an order dismissing the bill. The court order in this instance should have declared the rights of the parties according to the views expressed in the judge's *465 opinion by specifying that the plan was validly adopted. City of Baltimore v. Silver, 263 Md. 439, 462-63, 283 A.2d 788 (1971), and Hunt v. Montgomery County, 248 Md. 403, 410, 237 A.2d 35 (1968). To that extent the decree must be modified.
Decree modified and as modified affirmed; appellants to pay the costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262926/ | 306 A.2d 839 (1973)
KURLAND AUTO LEASING, INC.
v.
I.S.K. OF MASSACHUSETTS, INC. et al.
No. 1838-Appeal.
Supreme Court of Rhode Island.
July 6, 1973.
*840 Stephen G. Linder, Providence, for plaintiff.
Gelfuso & Cappalli, Inc., A. William Gelfuso, Richard A. Cappalli, Paul A. Sassi, Cranston, for defendants.
OPINION
PAOLINO, Justice.
This is a civil action to collect on a judgment entered in favor of the plaintiff against the defendants in the Supreme Court, Rockland County, State of New York.
The pertinent facts are relatively simple. The plaintiff, a New York corporation doing business in that state, is engaged in the business of leasing automobiles. The de-defendant, I.S.K. of Massachusetts, Inc., is a Massachusetts corporation doing business in Rhode Island. Howard G. Bass, the other defendant, is president of I.S.K. of Massachusetts, Inc. The case before us involves only the appeal of defendant corporation and for that reason we shall treat the case as if it were the only defendant.
On October 18, 1969, plaintiff and defendant entered into a written contract in the state of New York for the lease of a 1969 automobile. On June 8, 1970, plaintiff brought an action against defendant in the Supreme Court, Rockland County, State of New York, for money allegedly due it under the lease. On June 11, 1970, defendant was served in Rhode Island under the New York Long-Arm Statute, N.Y.Civ.Prac.Law & Rules § 302 (McKinney 1972), which provides that a New York court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator, who in person or *841 through an agent transacts any business within the state. Section 302 reads as follows:
"§ 302. Personal jurisdiction by acts of nondomiciliaries
(a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nondomiciliary, or his executor or administrator, who in person or through an agent:
1. transacts any business within the state * * *."
Personal service was made on defendant at its place of business in Cranston, Rhode Island, pursuant to the provisions of Super. R. Civ. P. 4, but it chose not to answer the New York action. On August 25, 1970, as a result of defendant's failure to answer, a default judgment was entered against it by the New York court.
On July 6, 1971, plaintiff brought the instant action in the District Court of the Third Judicial District, to collect the New York judgment from defendant. The District Court granted plaintiff's motion for summary judgment.
The defendant appealed to the Superior Court where the case was heard de novo by a justice of that court. The plaintiff filed a Super. R. Civ. P. 56 motion for summary judgment and defendant filed a motion to dismiss for lack of jurisdiction. The trial justice denied defendant's motion to dismiss and granted plaintiff's motion for summary judgment. The case is before us on defendant's appeal from the order entered in the Superior Court pursuant to the decision of the trial justice.
I
We consider first defendant's contention that the denial of its motion to dismiss the Rhode Island action was error. The defendant based its motion to dismiss on the ground of improper venue, alleging that G.L. 1956 (1969 Reenactment) § 9-4-5, as amended by P.L. 1969, ch. 239, sec. 7, does not confer jurisdiction on the Superior Court to try a transitory cause of action arising outside the state of Rhode Island against a foreign corporation.[1] In support of its position defendant cites Hughes v. Johnson Educator Food Co., 14 F. Supp. 999 (D.R.I.1936). Hughes was decided in 1936. It involved an automobile accident which occurred in Massachusetts. The plaintiff was a Rhode Islander and defendant was a Massachusetts corporation. Service was made upon a resident of this state who was an agent of the Massachusetts corporation. The District Court held that jurisdiction over the Massachusetts corporation could not be obtained by that kind of service.
The defendant argues here, as it did in the Superior Court, that the Hughes case stands for the proposition that under § 9-4-5 Rhode Island courts do not have jurisdiction to hear this action because the contract involved here was executed in New York with a New York corporation.
The trial justice noted in his decision that Hughes was decided prior to the enactment of our minimum contacts statute, P.L. 1960, ch. 124, sec. 1, now G.L. 1956 (1969 Reenactment) § 9-5-33.[2] He also *842 noted that defendant in the case at bar acknowledged that it was doing business in Rhode Island at the time this action was brought against it. He therefore concluded that the Superior Court had venue and that defendant was properly before the court. Accordingly, he denied defendant's motion to dismiss. We agree.
In the Rhode Island action defendant was served pursuant to Super. R. Civ. P. 4(d) (3).[3] Personal service was made on the president of defendant corporation at its place of business in Cranston, Rhode Island. The defendant admits that it was doing business here. In these circumstances the courts of this state clearly had jurisdiction over the parties, defendant as well as plaintiff. Hughes v. Johnson Educator Food Co., supra, is factually distinguishable from the instant case. On this record we do not reach the question of minimum contacts in determining whether the Superior Court had jurisdiction over the defendant in the case at bar.
II
We come now to defendant's argument that the trial justice erred in granting plaintiff's motion for summary judgment. The plaintiff based its motion on the ground that on the basis of the undisputed facts as disclosed by the pleadings and the documents which had been filed as exhibits, it was entitled to judgment as a matter of law. The defendant filed an affidavit and a memorandum in opposition to plaintiff's motion for summary judgment wherein it alleged improper notice, inconvenient forum, and lack of minimum contacts through which New York could have gained jurisdiction over it.
In passing on the motion for summary judgment the trial justice noted that the issue of the jurisdiction of the New York court over defendant had been raised in the Rhode Island action by defendant. He held that it was proper to raise that issue in the court where the judgment is sought to be enforced; that if the forum court finds that the court which rendered the judgment had jurisdiction of the parties, then the forum court must give that judgment full faith and credit. We agree. Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942); Chicago Life Ins. Co. v. Cherry, 244 U.S. 25, 37 S.Ct. 492, 61 L.Ed. 966 (1917); National Exchange Bank v. Wiley, 195 U.S. 257, 25 S.Ct. 70, 49 L.Ed. 184 (1904).
*843 After discussing the affidavit filed by defendant, the trial justice referred to § 302 of the New York statute which provides in part that a court of that state may exercise personal jurisdiction over any nondomiciliary who in person or through an agent transacts any business within the state of New York. He then pointed out that defendant had admitted by affidavit and in its memorandum that the contract was made and executed in New York. He concluded that the making and execution of the contract in New York was a transaction of business in that state within the meaning of § 302 and was sufficient to bring defendant within the jurisdiction of the New York court. In arriving at this conclusion the trial justice also pointed out that plaintiff was a New York corporation and said that the courts of New York would have an interest to provide a remedy to its citizens, including New York corporations. He also said that the case at bar was a stronger case than McGee v. International Life Insurance Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).
In McGee the decedent, a California resident, had purchased a life insurance policy in that state from an Arizona company whose obligations were later assumed by International Life Insurance Co., a Texas corporation. Except for the policy involved in that case, neither insurance company had ever engaged in business in California, nor had an office or agent there. The contract was delivered in California, the premiums were mailed from there, and decedent was a resident of that state when he died. Upon decedent's death the beneficiary under the policy brought suit in California and International Life Insurance Co. was served, pursuant to the California statute, by registered mail to its principal place of business in Texas. The court held that the due process clause of the fourteenth amendment did not preclude the California court from entering a judgment binding on International Life Insurance Co., since the suit was based on a contract which had a substantial connection with Carlifornia.
With respect to the other allegations in defendant's affidavit, the trial justice, after discussing the travel of these proceedings, found that service on defendant in Rhode Island was proper to bring defendant within the jurisdiction of the courts of the state of New York "* * * not only on the theory of McGee v. International Life Insurance Company, but on the basis of the statute which was enacted here"; that defendant did have adequate notice and sufficient time to prepare a defense; and that its execution and formation of the contract was a substantial connection with the state of New York. He concluded that the New York court did have jurisdiction over defendant and that, therefore, the New York judgment was entitled to full faith and credit. Accordingly, he granted plaintiff's motion for summary judgment. In making this decision the trial justice noted that he had examined all the papers in the case.
The defendant argues in substance that the pleadings and affidavits disclose facts which, when viewed in the light most favorable to it, present genuine issues of facts with respect to questions of proper notice, inconvenient forum, and lack of sufficient minimum contacts. In the circumstances, he contends that the trial justice erred in granting plaintiff's motion for summary judgment.
We agree that in ruling on a motion for summary judgment the trial justice must consider affidavits and pleadings in the light most favorable to the opposing party, and only when it appears that no genuine issue of material fact is asserted can summary judgment be ordered. Marandola v. Hillcrest Builders, Inc., 102 R.I. 46, 227 A.2d 785 (1967). But we do not agree that the pleadings and affidavits disclose any genuine issue of material fact. That the formation and execution of the contract took place in New York is undisputed. Likewise, it is undisputed that personal service was made in Cranston, Rhode Island, on defendant's president pursuant to Super.R.Civ.P. 4. Finally, the question *844 of the applicability of the New York Long-Arm Statute presented a question of law and not one of fact. There may have been issues but they were not genuine issues of material facts.
It seems to us that the only question raised here is whether the New York minimum contacts statute meets the constitutional test set forth in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and if so, whether the New York court applied it correctly. The due process test set forth in International Shoe Co. v. Washington, supra, states:
"* * * 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.'" Id. at 316, 66 S.Ct. at 158, 90 L.Ed. at 102.
We believe that the provision in the New York statute providing that a court of that state may exercise in personam jurisdiction over any nondomiciliary who in person or through an agent transacts any business within the state is sufficient to meet the constitutional test stated above. See Conn v. ITT Aetna Finance Co., 105 R.I. 397, 252 A.2d 184 (1969).
There is nothing in this record indicating that the New York court failed to apply the statute correctly. The plaintiff was a New York corporation; the contract was formed and executed in New York; the formation and execution of the contract in New York was transacting business there within the contemplation of § 302; and, finally, defendant was served personally in Rhode Island.
The trial justice correctly found that the New York court had jurisdiction over defendant. Since the New York court had jurisdiction over the defendant, full faith and credit must be given by the courts of this state to the New York judgment under art. IV, sec. 1 of the Federal Constitution. Ramsay v. Ramsay, 79 R.I. 441, 90 A.2d 433 (1952); Rathbone v. Terry, 1 R.I. 73 (1837). We find no error in the trial justice's ruling granting the plaintiff's motion for a summary judgment.
The defendant's appeal is denied and dismissed, the judgment appealed from is affirmed, and the case is remitted to the Superior Court for further proceedings.
JOSLIN, J., did not participate.
NOTES
[1] General Laws 1956 (1969 Reenactment) § 9-4-5 reads as follows:
"Venue of actions between nonresident parties If no one of the plaintiffs or defendants dwell within the state, and a corporation established out of the state be a party, such personal or transitory actions or suits by or against it may, if brought in the superior court, be brought in the court for any county, or if in a district court, in any district."
[2] General Laws 1956 (1969 Reenactment) § 9-5-33 reads as follows:
"Jurisdiction over foreign corporations and over nonresident individuals, partnerships, or associations. Every foreign corporation, every individual not a resident of this state or his executor or administrator, and every partnership or association, composed of any person or persons, not such residents, that shall have the necessary minimum contacts with the state of Rhode Island, shall be subject to the jurisdiction of the state of Rhode Island, and the courts of this state shall hold such foreign corporations and such nonresident individuals or their executors or administrators, and such partnerships or associations amenable to suit in Rhode Island in every case not contrary to the provisions of the constitution or laws of the United States.
"Service of process may be made on any such foreign corporation, nonresident individual or his executor or administrator, and such partnership or association within or without the state in the manner provided by any applicable procedural rule or in the manner prescribed by order of the court in which such action is brought.
"Nothing herein shall limit or affect the right to serve process upon such nonresident individual or his executor or administrator, or such partnership or association, or a foreign corporation within this state or without this state in any manner now or hereafter permitted by law."
[3] Super. R. Civ. P. 4(d) (3) prescribes the method of making service in this state upon a private corporation, domestic or foreign. It states:
"Service shall be made as follows:
* * * * *
"(3) Upon a private corporation, domestic or foreign, by delivering a copy of the summons and complaint to an officer, a managing or general agent, or by leaving a copy of the summons and complaint at an office of the corporation with a person employed therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process, provided that if the agent is one designated by statute to receive service, such further notice as the statute requires shall be given." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262928/ | 224 Pa. Superior Ct. 489 (1973)
James, Appellant,
v.
Silverstein.
Superior Court of Pennsylvania.
Argued March 19, 1973.
June 14, 1973.
Before WRIGHT, P.J., WATKINS, JACOBS, SPAULDING, CERCONE, and SPAETH, JJ. (HOFFMAN, J., absent.)
*490 Gordon W. Gerber, with him Frank J. Eisenhart, Jr., and Dechert, Price & Rhoads, for appellant.
Kimber E. Vought, with him William M. Barnes, and Schnader, Harrison, Segal & Lewis, for appellee.
OPINION BY SPAETH, J., June 14, 1973:
This is an appeal from an order granting a petition to open a confessed judgment.
A race horse was owned by seven persons. Three of the seven agreed to buy the interest of the other four, appellant being one of the four. Part of the agreement was that the three would pay appellant some $247,000, payment to be by judgment notes, to be given appellant by May 5, 1972, one note from each buyer. As security, bonds with a market value of $300,000 were to be deposited in escrow, and if appellant was not paid as agreed, he could confess judgment against the bonds. Appellee, who is the husband of one of the three buyers, posted the bonds. However, the three buyers did not give appellant the judgment notes. Instead, on May 8, which was one business day after May 5, appellee gave appellant his note, in the same amount as the combined total of the three notes agreed upon. On May 22 appellant confessed judgment. On September 28 appellee petitioned the lower court to open the judgment. On November 14 the court granted the petition.
A petition to open judgment is an appeal to the equitable side of the court, and the lower court's decision *491 will not be disturbed absent a manifest abuse of discretion. Thomasik v. Thomasik, 413 Pa. 559, 198 A. 2d 511 (1964). In deciding whether there has been such an abuse, it must be determined whether the petitioner has a defense on the merits, and whether he was reasonably prompt in seeking to have the judgment opened. Fox v. Mellon, 438 Pa. 364, 264 A. 2d 623 (1970).
Appellee's defense on the merits is that the deviations from the agreement were so immaterial as not to constitute a breach. Appellant acknowledges that appellee's note is as secure as the three notes specified in the agreement would have been. However, he contends that the circumstances in which the agreement was negotiated were such that appellee was on notice that literal compliance would be required.
Perhaps appellant is right. However, he is not so clearly right that it can be said that the lower court abused its discretion in letting appellee into a defense. "Where . . . there is serious doubt as to whether there was any default, . . . the matter should be threshed out before a jury." Arata v. Wright, 101 Pa. Superior Ct. 575, 578 (1931). At least on the present record it appears immaterial that one note was given instead of three; and as regards the fact that the note was given on May 8 instead of May 5, as a general rule the time of performance is not strictly limited to that specified in a contract unless it is stated in the contract, or circumstances show, that time is of the essence. Bogojavlensky v. Logan, 181 Pa. Superior Ct. 312, 124 A. 2d 412 (1956). "It is a recognized principle that where time is not of the essence, the mere failure to perform on the date mentioned in a contract is not per se a breach which wholly destroys the contract. [Citations omitted.]" Bogojavlensky, supra at 319, 124 A. 2d at 416.
*492 Appellant relies on Harris v. Sharples, 202 Pa. 243, 51 A. 965 (1902), for the proposition that a contract should be strictly enforced. There, the Supreme Court set aside a jury verdict for the plaintiff because the final copies produced by the plaintiff, who was a printer, varied from the sample copies that the plaintiff had submitted to the defendant buyer for approval in that the plaintiff had stamped his name on the final copies. In addition to circumstances showing the defendant's insistence on strict compliance, it appeared that the plaintiff's ". . . departure from the proofs was wilful and intentional" in that the samples could have been submitted to the defendant with the plaintiff's stamp on them. Harris, supra at 248, 51 A. at 967. In the present case it does not appear, at least not now, that the deviations from the agreement were wilful. Appellant also relies upon Monnoyer v. Gaffney, 222 Pa. Superior Ct. 168, 292 A.2d 523 (1972), but there the question was whether the lower court had abused its discretion in refusing to open a judgment, which is not the question here.
With respect to whether appellee was reasonably prompt in seeking to have the judgment opened: The four month delay, from May 22 to September 28, was not such as requires reversal of the lower court's order. No detriment to appellant appears. "Mere delay by appellee in his application to open will not validate an invalid judgment. Laches will not be imputed where no injury has resulted to the other party by reason of the delay: [citations omitted]." Jos. Melnick B. & L. v. Melnick, 361 Pa. 328, 338-39, 64 A. 2d 773, 778 (1949).
The order of the lower court is affirmed.
HOFFMAN, J., took no part in the decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263021/ | 207 F.Supp. 919 (1962)
SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
v.
BENNETT & COMPANY, Bennett Davies and Frederick Davies, Defendants.
Civ. A. No. 411-62.
United States District Court D. New Jersey.
August 13, 1962.
William Lerner and Andrew N. Grass, Jr., Securities and Exchange Commission, New York City, for plaintiff.
Samuel H. Berlin, Newark, N. J., Edward S. Joseph, New York City, for defendants.
*920 AUGELLI, District Judge.
This matter is before the Court on motion of the plaintiff Securities and Exchange Commission ("SEC") for a temporary injunction and the appointment of a receiver. This relief is sought pursuant to section 20(b) of the Securities Act of 1933, as amended ("Act"), 15 U.S.C.A. § 77t(b), and jurisdiction is invoked under section 22(a) of the Act, 15 U.S.C.A. § 77v(a).
Defendant Bennett & Company is a partnership and is registered with SEC as a broker-dealer in securities; defendant Bennett Davies is the sole general partner of said Company; and defendant Frederick Davies is the 22 year old son of Bennett Davies, employed by Bennett & Company as a securities salesman. Frederick is also secretary-treasurer and a director of Financial Development Corporation ("FDC"), and the owner of 40% of the Class B (voting) common stock of that corporation.
These defendants are charged with a violation of section 17(a) of the Act, 15 U.S.C.A. § 77q(a). An order, temporarily restraining defendants from engaging in the alleged unlawful activity and from disposing of any assets of FDC or Bennett & Company, was entered on May 21, 1962. By consent, the restraining order was continued in force, pending determination of plaintiff's motion. The matter was subsequently argued and a number of affidavits have been filed by the parties.
The complaint alleges that since on or about March 27, 1962, defendants have been offering for sale and selling Class A shares of FDC by use of means and instruments of transportation and communication in interstate commerce and by the use of the mails; that in the offers and sales of such shares, defendants made untrue statements of material facts concerning the security, and also omitted to state material facts that should have been disclosed to prospective purchasers of the stock; that by reason of such untrue statements and omissions of material facts, purchasers of the stock have been defrauded; and that unless enjoined, defendants will continue their unlawful practices. In addition to injunctive relief, plaintiff asks for the appointment of a receiver of the assets of Bennett & Company under the control or in the possession of the defendants.
The affidavits filed in this case disclose the following:
FDC was incorporated under the laws of the State of New Jersey on March 26, 1962, for the purpose of carrying on the business of making loans to builders and contractors engaged in the construction of housing, principally in Ocean and Monmouth Counties, and investment in and development of real estate. It has an authorized capitalization of 1,000,000 shares of Class A common stock, par value $.01 per share, with no voting rights, and 1,000 shares of Class B common stock, par value $1.00 per share, with voting rights. Of the Class B stock, 450 shares are owned by defendant Frederick Davies; 450 shares by Jacob Edelstein; and the remaining 100 shares by Florence Pattyson. Jacob Edelstein is in the building construction and real estate development business. He is the president and a director of FDC. Florence Pattyson is a limited partner of Bennett & Company, and a director of FDC.
The idea of engaging in the business for which FDC was ultimately formed appears to have originated with Frederick Davies and Jacob Edelstein. They discussed the proposed venture with Edelstein's two brothers, E. Alexander Edelstein and Benjamin Edelstein, members of the Bar of this State, practicing law under the firm name of Edelstein & Edelstein. E. Alexander Edelstein appears to be the law partner who took an active interest in this matter. He attended to the incorporation of FDC and advised his clients with respect to the capitalization of the corporation, classification of its stock, the need for an offering circular, and so forth.
On or about March 27, 1962, FDC commenced a distribution of 225,000 *921 shares of its Class A non-voting common stock to residents of New Jersey, at an offering price of $1.00 per share, with Bennett & Company acting as sole underwriter on a "best efforts" basis.
On April 5, 1962, FDC acquired, at no cost, two options for the purchase of undeveloped real estate. One property, subject to a 60 day option, was to cost $40,000.00, plus interim survey costs. The second property, subject to a 45 day option, was to cost $35,000.00. This property was owned by a corporation, all of the stock of which was wholly owned by Jacob Edelstein and members of his family. In the absence of a contrary indication in the record, it is assumed that neither option was exercised.
As of May 1, 1962, the records of Bennett & Company reflected that 73,175 shares of Class A non-voting common stock of FDC had been sold, and that 57,125 shares had been paid for. Bennett & Company has retained for itself, on each share sold, the sum of $.24, representing commission and service charges. In addition to these sales, options to purchase Class A shares of FDC are held by Bennett & Company and the officers and directors of FDC.
SEC alleges that during the course of the distribution and subsequent trading of FDC Class A stock by Bennett & Company, offers to sell were made over the telephone by Frederick Davies and others in the employ of Bennett & Company, under the supervision of Bennett Davies. Some of the purchasers of the stock were past customers of Bennett & Company. It is stated that false and misleading statements of material facts were made in connection with the offer and sale of FDC stock, and also that certain material facts relating to FDC were not disclosed to prospective purchasers of the stock. An offering circular, which allegedly was not mailed to purchasers until after a sale had been consummated, appears to contain a full disclosure of the highly speculative nature of the offering, and sets forth the material facts which SEC claims were omitted in the telephone solicitations.
SEC has filed with the Court a number of statements it procured from purchasers of FDC stock from Bennett & Company. In substance, these and other statements hereinafter referred to, indicate the nature of the alleged misrepresentations and omissions of material facts.
One purchaser claims he was told by Frederick Davies that the stock could be "expected to double its income within 180 days"; and that "it would possibly double or triple in value in possibly 180 days".
Another purchaser says he was told by Frederick Davies that Davies thought the price of FDC stock "would double in value within six months to a year". This purchaser also claims that when he bought his stock he was not told he was getting Class A non-voting stock of FDC, nor that Frederick Davies and Florence Pattyson owned Class B voting stock, nor that these people were principals in both Bennett & Company and FDC. He learned about this situation only after receiving the offering circular, which was subsequent to his purchase of the stock.
In another instance, a woman was told by a Bennett & Company salesman that FDC stock "would at least triple in a couple of months or so". This purchaser was not told that she was getting non-voting Class A stock, nor that Frederick Davies and Florence Pattyson were officers of FDC and owners of its Class B voting stock, nor that Davies and Pattyson were principals in Bennett & Company and in FDC. The offering circular, which would have disclosed these and other facts, was not received by this purchaser until a month after the purchase.
In another statement, a woman relates that Frederick Davies told her that "he expected the value of the stock to go up"; and that FDC "was in the financing business" in Ocean County. She says that no mention was made to her regarding any voting rights of the stock, nor was she told that Frederick Davies owned any stock or controlled FDC. This woman also claims she did not receive the offering *922 circular until after her purchase. Frederick Davies has filed an affidavit to which he attaches a later dated statement from the same woman, who now states that Frederick Davies "did not say that the stock would definitely go up", and that she felt she "was properly informed enough" to make the purchase.
Another investor, in his statement to SEC, claims he was told by Frederick Davies that FDC "was an up and coming company; it was a good thing; it would go up to $3.00 a share in a matter of six months * * *." Nothing was said concerning Davies' connection with FDC, nor was the prospect told anything about voting rights. At no time did this purchaser receive an offering brochure or any literature describing FDC. However, in another statement, submitted by Frederick Davies, this same investor says his dealings with Frederick Davies and Bennett & Company were always satisfactory, and that he was "not pressured" into buying FDC stock.
In addition to the two statements above mentioned, Frederick Davies has produced four others from purchasers of FDC stock. Summarized, the statements say that no high pressure salesmanship was used; that the speculative nature of the investment was known to the purchasers; that purchases of the stock would have been made regardless of Davies' interest in FDC; and that no guarantees were made with respect to the future of the stock. It is noted that in none of the statements submitted by Davies is there any indication that the purchasers of FDC stock were in possession of the offering circular at or prior to the time the purchases were made. Moreover, none of these statements negative the allegations made by SEC regarding the failure to disclose material facts to prospective purchasers of the stock, to wit: that Frederick Davies was an officer, director, promoter and a principal stockholder of FDC; that he was in the employ of the underwriter, Bennett & Company; that the Class A shares of FDC being offered had no voting rights; that FDC had not yet established permanent offices; and that FDC had as yet no operating history.
The affidavit of Frederick Davies states that the sum of $42,373.40, representing proceeds of the sale of FDC stock, is now being held in escrow by E. Alexander Edelstein. It is said that these funds comprise all of the assets, capital and property of FDC and its stockholders, and that Bennett & Company has no interest therein and makes no claim thereto. It may be, however, that Bennett & Company has received additional payments for stock sold since these figures were determined. As stated earlier in this opinion, the defendants, by this Court's order of May 21, 1962, were, inter alia, restrained from disposing of any assets of FDC or Bennett & Company.
In their affidavits, defendants emphatically deny any improper or unlawful conduct in the offer and sale of FDC stock. It is alleged there was no offering of the stock to the general public. It is claimed offers to sell were made only to a small number of the clientele of Bennett & Company, all of whom were residents of New Jersey. The making of any misrepresentations of material facts or omitting to state such facts with respect to FDC or its stock is denied.
This, then, might be said to be the case confronting the Court on the motion for a temporary injunction and appointment of a receiver.
Section 17(a) of the Securities Act of 1939, as amended, 15 U.S.C.A. § 77q(a), provides:
"It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly
"(1) to employ any device, scheme, or artifice to defraud, or
"(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in *923 order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
"(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser."
Defendants challenge the applicability of this section to the case at bar because of the completely intrastate character of the transactions involved. It appears that all solicitations for the sale of the stock were made by intrastate use of the telephone. It also appears that the mails were used by defendants in transmitting confirmations of purchases, in sending out copies of the offering circular, and by the purchasers of the stock in remitting checks in payment therefor. It is clear that such use of the mails, even though wholly within the State of New Jersey, is sufficient to give this Court jurisdiction under the quoted anti-fraud provisions of the Act. Securities and Exchange Commission v. Timetrust, Inc., 28 F.Supp. 34 (N.D.Cal.1939); United States v. Monjar, 147 F.2d 916 (3 Cir. 1944); Northern Trust Co. v. Essaness Theatres Corp., 103 F.Supp. 954 (N.D.Ill.1952).
In addition to the foregoing, the Court is satisfied that the misrepresentations and omissions alleged to have been made by the defendants would constitute a violation of section 17(a) of the Act. However, the Court is not required at this time to finally determine the issues of fact or the issues of law involved in the case. It is enough if plaintiff makes out a sufficient prima facie case to justify the discretionary issuance of a temporary injunction. See Bowles v. Montgomery Ward & Co., 143 F.2d 38 (7 Cir. 1944); Burlington Mills Corporation v. Roy Fabrics, 91 F.Supp. 39 (S.D.N.Y. 1950); Federal Trade Commission v. Rhodes Pharmacal Co., 191 F.2d 744 (7 Cir. 1951); Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2 Cir. 1953); Securities and Exchange Commission v. Boren, 283 F.2d 312 (2 Cir. 1960).
Section 20(b) of the Act, in pertinent part, reads as follows:
"Whenever it shall appear to the Commission that any person is engaged or about to engage in any acts or practices which constitute or will constitute a violation of the provisions of this subchapter, or of any rule or regulation prescribed under authority thereof, it may in its discretion, bring an action in any district court of the United States, * * * to enjoin such acts or practices, and upon a proper showing a permanent or temporary injunction or restraining order shall be granted without bond."
Thus, the test laid down for injunctive relief is whether or not "a proper showing" of the need therefor has been made.
Professor Loss, in Securities Regulation, Vol. III, p. 1979 (2nd Ed. 1961), states that:
"Since SEC injunctions are creatures of statute, all that must be established is what the statute requires, without reference to proof of irreparable injury or the inadequacy of other remedies as in the usual suit for injunction" (Footnotes omitted).
Once the Court determines that SEC has presented a sufficient prima facie showing that defendants' past conduct constitutes a violation of the Act, another test must be applied, and that is, whether or not such past conduct indicates a reasonable likelihood of further violations in the future. And, of course, the voluntary discontinuance of the alleged unlawful activity in the face of SEC action would be no bar to injunctive relief in a proper case. Securities and Exchange Commission v. Torr, 87 F.2d 446 (2 Cir. 1937); Securities and Exchange Commission v. Universal Service Association, 106 F.2d 232 (7 Cir. 1939); Securities and Exchange Commission v. Okin, 139 F.2d 87 (2 Cir. 1943); Securities and Exchange Commission v. Culpepper, *924 270 F.2d 241 (2 Cir. 1959); Securities and Exchange Commission v. Scott Taylor & Co., 183 F.Supp. 904 (S. D.N.Y.1959).
On the basis of the present record, this Court is satisfied that SEC has made out a sufficient prima facie case against all three defendants. The relationship among the parties and FDC cannot be ignored. Bennett Davies and his son Frederick deny any wrongdoing. But both appear to have been actively engaged in the offer and sale of FDC stock by means which are alleged to have been in violation of the anti-fraud provisions of the Securities Act of 1933. As previously stated, it is not necessary for the Court to make a final determination of the facts, or to resolve the issues of law, at this time. Enough has been shown concerning defendants' past conduct to indicate a reasonable likelihood of further violations of the Act in the future. Under the circumstances, and pending a determination of a hearing of the case on the merits for a permanent injunction, the motion for a temporary injunction will be granted.
The language of the temporary injunction should follow that used in the "ORDERED" paragraph beginning on page 3 and ending on page 4 of the temporary restraining order dated May 21, 1962. There should be included a provision restraining defendants from directly or indirectly transferring, selling, assigning, pledging or otherwise disposing of all or any part of the assets of FDC, or of Bennett & Company acquired in connection with the sale of FDC stock, presently in their possession or control or which, in the future, may come into their possession and control, until the further order of this Court.
The application of SEC for the appointment of a receiver will be denied. The Court is asked to appoint a "receiver of all assets and property of or belonging to Bennett and Company under the control or in the possession of the defendants, and authorizing, empowering and directing such receiver to investigate, seize and marshal such assets and properties wherever they may be found, and to hold the same subject to the further order of this Court".
In support of this requested relief, SEC alleges defendants now have assets in their possession "which they may transfer, sell, assign, pledge or otherwise waste or dissipate so as to disable them from satisfying judgments that might be obtained against them by their defrauded customers and so as to cause immediate and irreparable loss and damage to persons to whom money or securities are owing * * *."
The law is now clear that under section 22(a) of the Act, 15 U.S.C.A. § 77v(a), this Court has the power to appoint a receiver in a proper case. Los Angeles Trust Deed & Mortgage Exchange v. Securities and Exchange Commission, 285 F.2d 162 (9 Cir. 1960); Securities and Exchange Commission v. H. S. Simmons & Co., 190 F.Supp. 432 (S.D.N.Y.1961); Loss, Securities Regulation, Vol. III, pp. 1508-14 (2nd Ed. 1961). The cited cases involved corporations alleged to be insolvent. In both cases, a receiver was appointed to preserve the status quo and to prevent further diversion of corporate assets.
In the present case all of the money realized from the sale of Class A FDC stock (exclusive of the $.24 a share retained by Bennett & Company) is being held in escrow by a member of the Bar of this State with the consent of SEC. No claim thereto is being asserted by any of the defendants. There is no allegation here that Bennett & Company is insolvent, nor is there any indication of such condition. There is no evidence that any of the defendants have in the past diverted any funds belonging to others to their own use. There is only a bare allegation that this "may" happen. Any additional moneys collected by defendants from a sale of FDC stock will be safeguarded by appropriate language, as heretofore suggested, in the temporary injunction.
Under these circumstances, and with due regard to the amount of money *925 involved and the escrow arrangement presently in effect, the Court does not feel, on the basis of the present record, that a receiver should be appointed for Bennett & Company.
This opinion shall constitute findings of fact and conclusions of law under Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. SEC is directed to submit an appropriate order, on notice to defendants, in conformity herewith. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263028/ | 207 F.Supp. 136 (1961)
ALPHA DISTRIBUTING COMPANY OF CALIFORNIA, INC., also doing business under the name and style of Alpha Distributing Company, Inc., Plaintiff,
v.
JACK DANIEL'S DISTILLERY, LEM MOTLOW PROP., INC., a corporation, et al., Defendants.
No. 39623.
United States District Court N. D. California, S. D.
March 13, 1961.
J. Albert Hutchinson, San Francisco, Cal., for plaintiff.
Louis L. Phelps, of Dunne, Dunne & Phelps, San Francisco, Cal., for defendant.
SWEIGERT, District Judge.
This matter comes before the Court upon application of plaintiff, Alpha Distributing *137 Company, a wholesale liquor distributor which has had an exclusive dealership arrangement with defendant, Jack Daniel's Distillery, for a preliminary injunction prohibiting Daniel's and defendant Brown Forman Distillers Corporation, a corporate affiliate of Daniel's, from marketing Jack Daniel's whisky in a large northern California area except through plaintiff.
The record consists of the complaint and affidavits filed by the parties.
The complaint's first cause of action alleges breach of an oral exclusive distributorship contract. Plaintiff concedes, however, that mere breach of contract is not the basis of its application for injunctive relief.
Nevertheless, this first cause of action indicates some of the numerous issues of fact and questions of law involved in this suit.
There is an issue of fact concerning the existence and the terms of the oral contract, itself, especially with respect to its duration, plaintiff asserting that it was to continue so long as plaintiff performed it, and defendant asserting that it was terminable at will.
There are questions of fact, whether the exclusive distributorship contract, imposing duties of substantial promotion upon a dealer without express provision for termination, continued for a reasonable period and was terminated upon reasonable notice. (See Mangini v. Wolfschmidt, Ltd., 165 Cal.App.2d 192, (1958) 331 P.2d 728; San Francisco Brewing Corp. v. Bowman, 52 Cal.2d 607, 613 (1959), 343 P.2d 1; Millett Co. v. Park & Tilford Distillers Corp., 123 F.Supp. 484 (N.D.Cal.1954). There are also questions of fact concerning the applicability of the statute of frauds (See Cal.C.C. Sec. 1624(1); Cal.C.C.P. Sec. 1973(1); Millett v. Park & Tilford, supra; San Francisco Brewing Corp. v. Bowman, supra), also concerning possible estoppel to assert the statute of frauds. (San Francisco Brewing Corp. v. Bowman, supra).
Even if an exclusive dealership contract, containing any of the possible terms of duration asserted and controverted in this case, could be specifically enforced, directly or indirectly by injunction, certainly the indefiniteness of the alleged contract here involved, the dispute over its terms, and other related issues of facts and law, negative the clear entitlement which should exist to support either specific performance or injunction. (See, Long Beach Drug Co. v. United Drug Co., 13 Cal.2d 158 (1939), 88 P.2d 698, 89 P.2d 386).
Apparently for this reason, plaintiff bases its application for injunctive relief upon its second, third and fourth causes of action.
Concerning the second and fourth causes of action, alleging combination by defendants to effectuate certain anti-trust restraints set forth in the complaint (second cause of action, Par. C, D, p. 18 et seq.) all of said allegations are denied or countered by defendant with two possible exceptions.
The affidavits show that plaintiffs exclusive dealership was terminated by Daniel's, a wholly owned subsidiary of Brown Forman, with the knowledge of and in concert with the latter.
Plaintiff, while conceding that defendant Daniel's would ordinarily have a right to select a distributor of its own choice for the marketing of its products, argues that where, as shown by affidavit in this case, Daniel's terminates one exclusive dealership with a view to taking on another, at the request of or in concert with Brown Forman, a per se anti-trust combination results notwithstanding Daniel's is a wholly owned subsidiary of Brown Forman, citing Kiefer-Stewart Co. v. Seagram & Sons, Inc., 340 U.S. 211 (1951), 71 S.Ct. 259, 95 L.Ed. 219.
Although it is true that such corporate relationship would not liberate the parties from liability for anti-trust violations, it is doubtful that mere concert of such affiliates for the purpose of exercising their right, as a single business *138 unit to fix the price of the product or select a chosen distributor, and nothing more, constitutes a per se anti-trust violation. See, Report of the Attorney General (1955), pp. 34, 35; Hudson Sales Corp. v. Waldrip, 211 F.2d 268 (5th Cir. 1954) cert. den. 348 U.S. 821, 75 S.Ct. 34, 99 L.Ed. 648. In such a situation there should be a showing either that the defendants were not acting merely as a single business unit, or that, if they were, any restraint of trade resulting from their action was in fact unreasonable.
The affidavits also show that one of the reasons for terminating the exclusive dealership was that plaintiff was in close association with and handled the products of a competing manufacturer, Schenley. A manufacturer has a right to free selection of its distributors and may refuse to deal with one who deals in a closely competitive product. A. B. C. Distributing Co. v. Distillers Distributing Co., 154 Cal.App.2d 175, 188 (1951), 316 P.2d 71; Camfield Mfg. Co. v. McGraw Electric Co., 70 F.Supp. 477 (D. Del.1947); California Beverage & Supply Co. v. Distillers Distributing Corp., 158 C.A.2d 758, 767 (1958), 323 P.2d 517.
Concerning that part of the second cause of action, which alleges unfair appropriation by defendants of plaintiff's confidential information, trade secrets and customer lists (Complaint, second cause of action, Par. E, p. 19 et seq.), these allegations are also denied and countered by defendants and, further, defendants raise the question whether information of the type alleged, even if used by defendants, constitutes confidential information. See, Millett v. Park & Tilford, supra, Continental Car-NaVar Corp. v. Moseley, 24 Cal.2d 104 (1944), 148 P.2d 9; Aetna Bldg. Maintenance Co. v. West, 39 Cal.2d 198 (1952), 246 P.2d 11; A. B. C. v. Distillers, supra; Alpha Distributing Co. v. Jas Barclay & Co., 215 F.2d 510 (9th Cir.1954).
The third cause of action alleges wrongful, unjustified, unprivileged interference by defendants other than Daniel's, with the contractual and business relationship between plaintiff and Daniel's (Complaint, third cause of action, p. 26 seq.).
Conceding that there can be wrongful interference even with a contractual relationship terminable at will (See, Speegle v. Underwriters, 29 Cal. 2d 34, 39, (1946), 172 P.2d 867), not every interference by third persons with contractual or business relationships is wrongful. Certain interference can be justified by a showing of proper purpose and legitimate interest and such issues are here sufficiently raised by defendant's affidavits. (See, Masoni v. Board of Trade, 119 Cal.App.2d 738 (1953) 260 P.2d 205; Restatement, Torts, Secs. 766, 767; Mallard v. Boring, 182 Cal.App.2d 390, 6 Cal.Rptr. 171 (1960); Hopper v. Lennon & Mitchell, 52 F.Supp. 319 (S.D.Cal.1943).
Upon such a record as this, the Court should hesitate before granting a pendente lite injunction which would in effect specifically enforce an uncertain, hotly disputed oral arrangement by requiring defendants to indefinitely entrust the marketing of their product in a wide area to a distributor with whom a relationship of confidence and cooperation has become impossible.
There is, of course, the consideration that, unless such pendente lite relief is granted, plaintiff may lose the fruits of a distributorship which it would like to retain. It must be borne in mind, however, that in the very nature of any distributorship of this type there is always the implied realization that it cannot last forever. Generally, fair dealing between the parties on the subject of termination is the best that can be expected. To this end the courts have construed similar arrangements to require tenure for a reasonable period and termination upon reasonable notice. (See the Mangini, San Francisco and Millett cases cited, supra.)
In this particular case the relationship continued for nearly ten years. Plaintiff *139 was advised nearly four years before actual termination that it should not count on continuance beyond two years and, further, a formal two months' notice of actual termination effective December 31, 1960, was given.
Further, upon trial of the case, plaintiff, if successful in its contentions, may recover any damages sustained up to that time with or without a permanent injunction.
The Court concludes that plaintiff's application for a pendente lite injunction should be denied. (See the Millett and Alpha cases, supra, and also American T. C. P. Corp. v. Shell Oil Co., 123 F. Supp. 55 (S.D.N.Y.1954). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263032/ | 207 F.Supp. 73 (1962)
Lester O. COFIELD, Plaintiff,
v.
Gus F. KOEHLER, District Director of Internal Revenue, Defendant.
No. T-2875.
United States District Court D. Kansas.
June 27, 1962.
Herbert W. Sandell, Manhattan, Kan., for plaintiff.
Newell A. George, U. S. Atty., R. Stanley Ditus, Asst. U. S. Atty., Topeka, Kan., for defendant.
HUXMAN, Senior Circuit Judge.
This is an action brought by plaintiff, Lester O. Cofield, for the recovery of $4,083.56, paid as taxes for the year, 1957. The answer to the question posed depends upon whether a property settlement in a divorce action resulted in a taxable transaction to the taxpayer with respect to the accumulated interest on a series of United States Government Bonds, Series "E", which were set aside to the wife in the property settlement.
FINDINGS OF FACT
There is no dispute in any material fact. The facts were stipulated by the parties. The court finds these facts: Lester O. Cofield and Marguerite Cofield were married October 21, 1934. Neither had any accumulated property at the time of their marriage. She was equally competent with him in business matters. They continued as business partners both in a lumber business and in various other business enterprises. They were successful and accumulated a considerable estate consisting of personal property, including a substantial amount of Government Series "E" Bonds, as well as a large amount of real estate. The Series "E" Bonds were issued in their joint names. *74 On January 6, 1958, judgment was entered in the District Court of Riley County, Kansas, granting a divorce to the wife. So far as material, the judgment of the court awarded the wife permanent alimony in the sum of $5,000.00, and set aside to her as her separate property, one-half of the jointly accumulated property specifically described in the decree.
Included in the property set aside to her were United States Savings Bonds in the approximate amount of $50,225.00. These bonds are the Series "E" Bonds in question here. A corrected journal entry recites that upon further consideration, the court finds that the correct value of these bonds was $56,071.60. An adjustment was made requiring the wife to pay the plaintiff the sum of $2500.00. In the end, therefore, Series "E" Bonds of a value of $56,071.60 were set over to the wife as a part of the one-half of the property jointly accumulated by the husband and wife. The court specifically found that these bonds were the joint accumulations of the husband and wife and were not purchased from separate funds of the wife. This finding is adopted by this court. In his 1957 income tax return, petitioner did not return any of the accrued interest on these bonds as earned income. The Department added to the reported income one-half of the accrued interest on these bonds. The additional tax resulting therefrom is the amount in controversy here.
CONCLUSION OF LAW
The court concludes, as a matter of law, that the equal division of the property jointly owned by the husband and wife in the divorce decree did not result in any taxable gain to plaintiff.
OPINION
I.T. 3301, 1939-2 Cum.Bull. 75, provides that where the purchase price of U. S. Savings Bonds is contributed by two persons and the bonds are registered in the name of alternative persons as co-owners, the income therefrom is includable in the income of such persons proportionately. These bonds were purchased in this manner. If the transfer of these bonds to the wife in the property settlement resulted in a taxable incident, one-half of the accrued interest was properly chargeable to the plaintiff and was correctly added to his 1957 income tax return.
The yardstick by which we must gauge this transaction is laid down in Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75, where the Supreme Court said:
"Admittedly not all economic gain of the taxpayer is taxable income. From the beginning the revenue laws have been interpreted as defining `realization' of income as the taxable event, rather than the acquisition of the right to receive it. And `realization' is not deemed to occur until the income is paid. But the decisions and regulations have consistently recognized that receipt in cash or property is not the only characteristic of realization of income to a taxpayer * * *. Where the taxpayer does not receive payment of income in money or property realization may occur when the last step is taken by which he obtains the fruition of the economic gain which has already accrued to him."
At the time of the divorce and partition of the jointly owned property by the husband and wife, these bonds had earned interest, one-half of which belonged to the plaintiff. But it seems to the court that under the Horst case, the transfer of these bonds to the wife did not result in realization of income to the husband. He exchanged these bonds in which each had an undivided one-half interest, including the accrued interest for other property of equal value, also jointly owned by them. The effect of the divorce decree did no more than set apart to each in severalty the interest they owned in their community property. They gained nothing and they lost nothing.
Judgment will be entered for plaintiff for the amount prayed for, together with interest thereon. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262964/ | 893 A.2d 564 (2006)
Jerome J. JONES & Tonya Turner, Appellants,
v.
UNITED STATES, Appellee.
Nos. 03-CF-1440, 03-CF-1493.
District of Columbia Court of Appeals.
Submitted February 8, 2006.
Decided March 2, 2006.
*565 Thomas T. Heslep, Washington, DC, for appellant Jones.
Patrick T. Hand, Washington, DC, for appellant Turner.
Kenneth L. Wainstein, United States Attorney, John R. Fisher, Assistant United States Attorney at the time the brief was filed, and Thomas J. Tourish, Jr., Trena D. Carrington, and Edith M. Shine, Assistant United States Attorneys, for appellee.
Before SCHWELB, FARRELL, and KRAMER, Associate Judges.
FARRELL, Associate Judge:
A jury acquitted appellant Jones of malicious disfigurement but found him guilty of aggravated assault.[1] It convicted appellant Turner of felony threats and assault with a dangerous weapon. On appeal, Jones challenges the trial judge's refusal, in the final instructions, to state expressly that self-defense is a defense to a charge of aggravated assault, something the judge had done in relation to malicious disfigurement. Turner contests the sufficiency of the evidence on the threats charge, and contends that her indictment should have been dismissed because two government witnesses had allegedly perjured themselves before the grand jury. We reject *566 both of Turner's arguments, but hold that the judge erred when he refused Jones's request to link his defense of self-defense explicitly to aggravated assault. And because we conclude that this left open a reasonable probability that the jury believed self-defense was applicable to malicious disfigurement as to which the link had been made but not aggravated assault, we must reverse Jones's conviction.
I.
The charges against both defendants arose from an altercation of July 25, 2002, that began when Turner ordered Lateasa Hill, who was living temporarily at an apartment owned by Turner, to get out of bed and leave the apartment. Angry because Hill had been "bad-mouthing" her, Turner threatened to set fire to the bed and actually sought to ignite the bed-sheets with a lighter. She then swung a baseball bat at Hill and later, wielding two butcher knifes, threatened her again by exclaiming, "Don't make me have to use this." In the meantime Turner had summoned appellant Jones, the father of her two youngest children, to the scene. Jones promised to get Hill out of the apartment and, in an ensuing fight with her, successively grabbed her by the neck and arms, struck and pushed her, bit her on the forehead causing her to bleed profusely, bit her a second time, and kicked her repeatedly about the body. Hill suffered lasting injuries, requiring stitches and a recommendation of plastic surgery. Turner, for her part, continued her assaults and threats even as an ambulance arrived, declaring that "I'm ready to do more damage."
Jones took the stand and claimed self-defense, asserting that Hill had initiated the fray by striking him and menacing him with a knife. When he tried to disarm her, she clamped (or "locked") her teeth on his chest and stabbed him four or five times. He bit her on the forehead (causing her disfigurement) in an effort to stop her from biting him. The struggle continued as she slashed at him with another knife, until he was able to tackle her to the ground and end the fight. Photographs admitted into evidence showed cut wounds on Jones's back, shoulders, and right arm, and a bite wound on his chest.
II.
We first reject summarily Turner's challenge to the sufficiency of the evidence that she threatened Hill. The evidence summarized above permitted the jury fairly to conclude that, at the least, Turner had threatened to burn Hill by setting her bed on fire if she did not leave the apartment. See generally Griffin v. United States, 861 A.2d 610, 615-16 (D.C.2004); United States v. Baish, 460 A.2d 38, 42 (D.C.1983).
We reject as well Turner's claim that the indictment should have been dismissed because it was based on perjured grand jury testimony by Hill and Isis Burnette, who also witnessed the altercation. Dismissal on that ground, as an exercise of the court's supervisory authority, is a narrow exception to the rule that "[a]n indictment returned by a legally constituted and unbiased grand jury that is valid on its face is enough to call for a trial on the merits." Hunter v. United States, 590 A.2d 1048, 1051 (D.C.1991). Where "false material testimony [was] presented to the grand jury," dismissal is warranted "only where it is established that the false testimony substantially influenced the grand jury's decision to indict or where there exists a `grave doubt' whether [that] decision. . . was free from the substantial influence of the false testimony." Id. at 1051-52.
*567 Here, the trial judge was alert to the possibility that some grand jury testimony by Hill and Burnette might have been false, but ultimately he "[did] not . . . agree with . . . the defense attorneys as to the record showing that the witnesses falsely testified at the grand jury." Contrary to Turner's contention now that the judge should have reviewed the grand jury testimony before reaching that conclusion, he was not asked to do so by defense counsel. Moreover, as the government points out (Br. for Appellee at 38 & n. 44), the judge knew from the proceedings that the indictment had been returned based on testimony by at least two other witnesses who also testified at trial. See Sanders v. United States, 550 A.2d 343, 345 (D.C.1988) (false testimony supporting indictment not material because other incriminating evidence presented to grand jury also supported probable cause to indict). Most importantly, the circumstances of the two witnesses' inconsistent stories in the grand jury and at trial as well as the details of the "letter immunity" each had received were fully arrayed before the petit jury, under instructions directing it, inter alia, to scrutinize with care "the testimony of an admitted . . . perjurer" and to consider such inconsistencies in evaluating credibility. Turner has presented no reason why in these circumstances the extreme remedy of dismissal was nevertheless required as a matter of law.
III.
We turn, then, to Jones's claim of instructional error, based upon the assertion that the judge's rejection of his request to have self-defense made expressly applicable to aggravated assault, as it had been to malicious disfigurement, may have resulted in a negative inference by the jury that the defense was not available for the former offense. The government responds essentially that the general self-defense instruction given by the judge suggested no limitation on its applicability, and that the arguments of both counsel Jones's attorney and the prosecutor similarly implied no distinction as to self-defense between the two crimes.
A.
The proceedings relevant to the issue are easily summarized. After issuing general instructions, the judge turned to defining the crimes charged in the order stated in the indictment. As relevant here, he first defined the elements of aggravated assault, D.C.Code § 22-404.01 (2001), without mention of self-defense as something the government was obliged to disprove. He next[2] defined the elements of malicious disfigurement, id. § 22-406, by quoting substantially verbatim the standard Criminal Jury Instructions for the District of Columbia, No. 4.15 (4th ed. rev. 2005) (Redbook), as follows:
The essential elements of the offense of malicious disfigurement, each of which the government must prove beyond a reasonable doubt, are:
1. That the defendant inflicted an injury on the complainant;
2. That the defendant acted voluntarily and on purpose, not by mistake or accident;
3. That, at the time the defendant inflicted the injury, s/he specifically intended to disfigure the complainant; and
*568 4. That, as a result of the injury, the complainant was permanently disfigured; and
5. That the defendant did not act in self-defense; and
6. That there were no mitigating circumstances.
The judge explained that "[s]elf-defense is a complete defense to malicious disfigurement," and that he would define self-defense later. After defining the remaining charge (assault as to defendant Turner) and aiding and abetting, he then took up self-defense proper, stating first that "Jones' theory of the case is that he acted in self-defense." He followed with the lengthy standard instruction on self-defense. See Redbook, Nos. 5.12 et seq.
After the full instructions had been given, Jones's counsel asked the judge to advise the jury specifically that self-defense was a defense to aggravated assault, because (a) the judge had done so in the case of malicious disfigurement and (b) in reading the general self-defense instruction he had not stated specifically to which offenses it applied. The judge rejected the request, stating:
While the instruction on malicious disfigurement did specifically say that [self-defense] is a complete defense to [that offense], it doesn't say it specifically in the aggravated assault instruction, and there must be a reason for that.
B.
In Swanson v. United States, 602 A.2d 1102 (D.C.1992), this court addressed a claim that the trial judge had erred by instructing the jury on self-defense after defining all of the charged offenses, rather than as the defendants apparently had sought instructing on the theory immediately after the definition of second-degree murder. In rejecting the contention that this might have induced a belief by the jury that the defense was inapplicable to the murder charge, the court explained that "[t]he trial judge [had] expressly informed the jury that the claim of self-defense would apply to `[s]econd degree murder while armed [and other enumerated offenses].'" Id. at 1107. Citing the presumption that juries will follow trial court instructions, the court found no error "where the judge [had] specifically identified the offenses to which self-defense is relevant." Id.
The government asserts that Swanson "does not stand for the proposition that a trial judge must expressly state the charges to which self-defense applies" (Br. for Appellee at 23). That may indeed correctly describe or limit the holding of Swanson, but our decision there nevertheless perceived the danger of jury confusion where multiple charges have been submitted to a jury along with a self-defense instruction not specifically linked to any of them. Moreover, the present case has an aspect not present in Swanson. Here the judge, quoting the Redbook instruction for malicious disfigurement, did tie self-defense expressly to one, but only one, of the two serious charges against Jones, explaining further that he would define that "element" of the offense later. In such circumstances, there is no good reason for a trial court not to identify each of the charges to which self-defense applies, especially when asked to do so, as here. And the risk that, absent such an express link, the jury in these circumstances will apply a rough layperson equivalent of inclusio unius est exclusio alterius in considering the relevance of the defense is appreciable. We conclude that, on the facts of this case, the judge erred in not acceding to Jones's request.
Jones adds that the danger that the jury thought self-defense applied only to malicious *569 disfigurement is especially realistic here because the trial judge himself showed uncertainty on the point, speculating that "there must be a reason" why the Redbook instruction for aggravated assault does not incorporate self-defense expressly. The government responds that this reading of the judge's words unfairly imputes to him ignorance of the rudimentary principle that self-defense, where raised, applies to any assault offense that, much more likely, the judge was asking the sound question of why the Redbook drafters had singled out malicious disfigurement for incorporation of self-defense (more precisely, the absence thereof) as an "element."[3] Ultimately we cannot say what the judge meant, but either supposition Jones's or the government's underscores the danger already identified: that without further specification, the jury may have been misled by the Redbook instruction to consider self-defense only where told that it could and nowhere else.
The government asserts that the closing arguments of counsel dispelled any misimpression the jurors had because in advocating for, and opposing, self-defense neither Jones's counsel nor the prosecutor distinguished aggravated assault from malicious disfigurement in regard to self-defense. First, however, the final language the jury heard were the instructions by the trial judge, not the arguments of counsel (and the jury had the written instructions with it in the jury room). Furthermore, the judge gave the following pointed instruction concerning the difference between arguments of counsel and the court's instructions about the law:
While the lawyers may have commented during their closing arguments on some of these rules, it was proper for them to do so. The statements and the arguments of the lawyers, however, are not evidence, and they are only intended to assist you in understanding the evidence. Nevertheless, you are to be guided only by what I say about them[,] if there is any difference between what the lawyers have told you and what I tell you.
Finally, although asking why a jury has acquitted is a hazardous inquiry, Jones's acquittal on the one charge linked directly to self-defense by an instruction raises, by itself, at least some question about the jury's proper application of the defense to the companion charge.
Altogether, then, we lack the necessary "fair assurance" that the erroneous failure to specify the applicability of self-defense did not influence the jury's verdict. Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
Affirmed as to Turner; reversed as to Jones.
NOTES
[1] It also acquitted him of a separate charge of assault.
[2] We omit the intervening definition of assault with a dangerous weapon applicable to Turner.
[3] No such incorporation takes place, for example, in the case of the standard instruction for second-degree murder, also requiring proof of "malice." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262968/ | 207 F.Supp. 932 (1962)
John J. CUNEO, Regional Director, etc., National Labor Relations Board, Petitioner,
v.
The ESSEX COUNTY AND VICINITY DISTRICT COUNCIL OF CARPENTERS AND MILLWRIGHTS, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL-CIO, Respondent.
Civ. A. No. 585-62.
United States District Court D. New Jersey.
August 16, 1962.
Bernard L. Balicer, Howard I. Grossman, Washington, D. C., with N.L.R.B., and Stanley A. Mestel, (Wyoming Bar), Washington, D. C., for petitioner.
Joseph P. Dunn, Newark, N. J., and Robert D. Corbin, Jersey City, N. J., for respondent.
WORTENDYKE, District Judge.
Pursuant to the provisions of section 10(l) of the National Labor Relations Act, 1947, (Act), 29 U.S.C.A. § 160(l), the Regional Director (Petitioner) of the Twenty-Second Region of the National Labor Relations Board (Board) has petitioned this Court for a preliminary *933 injunction pending the final disposition by the Board of the complaint of Associated Contractors of Essex County, Inc. (Association) charging the Essex County and Vicinity District Council of Carpenters and Millwrights of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Carpenters or Council) with an unfair labor practice in violation of 29 U.S.C.A. § 158(b) (4) (i) (ii) (A). More particularly, the Association charged the Carpenters before the Board with having exerted pressures to compel Association to enter into a so-called "hot cargo" contract. The pressures complained of are alleged to consist of a strike called by the Carpenters on July 23, 1962 against certain members of Association who are engaged in building construction, an industry affecting commerce, as defined in section 501 of the Act, 29 U.S.C.A. § 142(1).
Carpenters is a labor organization engaged within this District in transacting business and protecting the interests of its employee-members, and of employee-members of affiliated and constituent labor organizations. Association is a membership corporation, representing the interests of and acting as bargaining agent for certain construction contractors doing business in this District.
Commencing in April, and continuing into July 1962, Association and Council negotiated between themselves for a collective bargaining agreement to replace a similar agreement between the parties which by its terms expired May 31, 1962. That previous agreement contained a clause which Carpenters demanded should be included in the new collective bargaining agreement under negotiation, but Association refused to consent to such inclusion. The language of the clause in question, which constitutes a part of Article 18.1 of the old contract, is as follows:
"* * * No cessation of work shall take place for any reason except for non-union condition or failure to make required payments to the Pension Plan and/or Welfare Fund. A non-union condition shall prevail when employees are employed without a collective bargaining agreement on any construction work which is normally performed by employees working under a collective bargaining agreement with a Union affiliated with the Building Trades Department of the AFL-CIO. In such event it shall not be deemed a violation of this Agreement for employees hereunder to individually refuse to work on the job site where such non-union condition exists. To the extent legal, the Union may request employees hereunder to leave such job."
All demands of the respective negotiators, except this demand of Council for the inclusion of the foregoing quoted language in the new contract were amicably resolved. The strike which commenced on July 23, 1962 was called because of the Association's refusal to agree to such inclusion, and the consequent failure of a collective bargaining agreement to come into existence.
The Petitioner contends, and the complaint of the charging party to the Board alleges that the calling and maintenance of the strike constitutes an unfair labor practice in violation of 29 U.S.C.A. § 158(b) (4) (i) (ii) (A). The pertinent language of the Act relied upon by the petitioner is as follows:
Section 158 "(b) It shall be an unfair labor practice for a labor organization or its agents * * *
* * * * * *
"(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in * * * an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to * * * perform any services; or (ii) to threaten, coerce, or restrain any person engaged in * * an industry affecting commerce, where in either case an object thereof is (A) forcing or requiring any employer * * * to enter into any *934 agreement which is prohibited by section [158] (e) of this section; * * *.
* * * * * *
Section 158 "(e) It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement * * * whereby such employer ceases or refrains, or agrees to cease * * * doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void; Provided, that nothing in this subsection (e) shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting or repair of a building, structure, or other work: * * Provided further, That nothing in this Act shall prohibit the enforcement of any agreement which is within the foregoing exception."
It is further the contention of the Petitioner that the construction industry proviso contained in the foregoing quoted language of the Act merely exempts from the ban of the section entering into an agreement of the type specified in the proviso but does not exempt conduct of unions in the construction industry which is proscribed by the provisions of section 8(b) (4) (A) of the Act (as the third proviso under section 8(e) (which is deleted from the above quotation) does for the unions in the garment industry). Petitioner says that "the proviso merely saves from the ban of section 8(e) limited voluntary agreements restricting the business relations of employers in the construction industry." In sum, Petitioner argues that the unfair labor practice of which the charging party complains consists in the calling of a strike as a means of enforcing the inclusion of the questioned clause in the new agreement.
From the evidence presented before me, I make the following findings of fact:
1. The Respondent, The Essex County and Vicinity District Council of Carpenters and Millwrights of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization as defined in section 2(5) of the National Labor Relations Act, 29 U.S.C. A. § 152(5).
2. The complainant before the Board, Associated Contractors of Essex County, Inc. is an employer as defined by section 2(2) of the Act.
3. Council has acted and is authorized to act in behalf of employees (as defined by section 2(3) of the Act) of members of Association within the area generally comprising Essex County, New Jersey, in conducting collective bargaining negotiations, and entering into and performing collective bargaining agreements with Association.
4. Association has conducted and is authorized to conduct, in behalf of its members, who are employers engaged in industry affecting commerce and operating within the Essex County, New Jersey area, collective bargaining negotiations with Council, and the execution and performance of collective bargaining agreements with Council relating to the employment of members of Council in building construction and other related operations conducted by members of Association.
5. Members of Association maintain their places of business and conduct their operations within this District. They purchased goods and materials from outside of the State of New Jersey for use in construction projects within the State valued in excess of $50,000 during 1961, and during the same period performed services and supplied materials outside of the State of New Jersey in excess of a million dollars in value.
6. On and prior to April 19, 1962, there was in force and effect between Association and Council a written collective bargaining agreement which became *935 effective June 1, 1959 (although dated September 1959), and by its terms was to continue to midnight on May 31, 1962 "and thereafter from year to year" unless either party notified the other in writing at least three months prior to May 31, 1962 of termination or modification of the agreement.
7. Included among the provisions of the foregoing contract was Article XVIII, containing provisions in section 1 thereof as quoted supra (page 2 of this opinion).[1]
8. In February 1962, in accordance with Article 6 of the then existing agreement, Carpenters served upon Association written specifications of their demands for provisions to be embodied in a new agreement to supercede the existing agreement. On April 19, 1962, Association submitted to Council its written demands for the new agreement, and invited Council to commence negotiations of the respective demands on and after April 23, 1962. No reference to the language of Article 18 of the old contract was contained in the written demands submitted by either party to the other.
9. Commencing on April 25, 1962, meetings were held by the respective bargaining committees of the parties to the old contract for the purpose of negotiating the demands of both parties for the new agreement. Article 18 of the old contract was not discussed at the meeting of April 25th, nor at a subsequent meeting held for a similar purpose on May 31, 1962.
10. At another meeting of the negotiators, held on June 1, the discussion did include references to the provisions of Article 18, in the course of examining the language of the contract, article by article. At that meeting the representatives of Association objected to the inclusion in the prospective new agreement of a portion of the language of Article 18 of the old agreement, as quoted above. Council's negotiating committee insisted that this language be retained.
11. At the conclusion of the negotiations between the respective bargaining *936 committees on June 1, the negotiators could not achieve a meeting of the minds on wages and certain other provisions, and notice was given by the representatives of Council to the bargaining committee of Association that a strike would be called on Monday, June 4, 1962, which commenced on that date.
12. On June 11, a meeting was held by representatives of the respective negotiating parties, upon the invitation of an official representative of United Brotherhood of Carpenters and Joiners of America, AFL-CIO, the International organization with which Council is affiliated, at which meeting economic demands, and the language of Article 18 were further discussed, without achievement of any agreement between the parties.
13. Further negotiations were held between the bargaining committees at another meeting which commenced on June 19th and continued into the early morning hours of June 20. Only economic issues were discussed at that meeting, and at its termination an agreement was reached which justified Council's committee in believing that all matters in difference between the negotiators had been finally resolved. Council was induced by this belief to terminate the strike on June 20.
14. A short form of interim agreement, embodying the terms of the agreement reached by the bargaining representatives on June 20 was prepared by the attorney for Council and submitted to Association on June 22, 1962. Upon receipt of this draft of short form agreement, Association caused to be drafted a plenary contract which was thereupon submitted to the attorney for Council for approval and execution. The latter draft contained, inter alia, a provision or provisions rendering the wage increases, which had been agreed upon, effective on and with June 20th. Council objected, and insisted upon June 2 as the commencement date. Thereafter Council submitted a further draft of agreement providing that the wage increases should become effective on June 2, and including the language of Article 18 of the old contract to which Association had objected. Council demanded that its draft of agreement be executed, under threat of calling a strike of its members working on construction projects upon which certain members of Association were then engaged.
15. A meeting of the negotiators was held on June 23, 1962, at which the commencement date for the wage increases, a provision limiting the time for a non-union employee to join the union, and the wage status of foremen were discussed. Article 18 was also a subject of the discussion at that meeting, and the representatives of Association flatly refused to agree to its inclusion in the new agreement.
16. At a further meeting of the representatives of the negotiating parties, held on July 19th at the office of the attorney for Council, the proposed language of Article 18 was again discussed and the representatives of Council insisted upon its inclusion in the new contract. Upon Association's rejection of this request, Council threatened a new strike, which commenced on July 23, 1962, and which still continues.
17. During the negotiating conferences, by June 4, 1962, new collective bargaining agreements, in form proposed by Council, were executed by 50 employer-contractors engaged in the building construction industry in the Essex County area, including three contractors who are or were members of Association. To the date of the hearing before me on the present petition, approximately 146 similar collective bargaining agreements had been executed by construction contractors with Council, which covered approximately 900 carpenter-employees.
18. The strike which commenced on July 23, 1962 affected only 4 (out of a total of 50) contractor-members of Association, and one of these four subsequently signed a form of new collective bargaining agreement, conforming to the requirements of Council, which resulted in a termination of the strike as to that *937 contractor. Of the carpenter employees represented by Council, only 23 persons employed by 3 contractor-members of Association were on strike at the conclusion of the hearing on the return of the order to show cause in this case.
19. In 1960 the carpenters struck on a hospital construction job in Newark, New Jersey, invoking the contract clause here in question, because the general contractor had subcontracted a portion of the work to a subcontractor employing workers belonging to a union not recognized by the Carpenters. No unfair labor charge was brought by Association against Carpenters on that account, and that strike was settled by the parties forthwith.
20. Council construes the questioned clause as permitting a strike for non-union condition only "to the extent legal."
21. Article 19 of the agreement provides that nothing contained therein is intended to be in conflict with any law, and that if conflict be found the law shall prevail and the agreement shall be deemed amended to conform with such law.
DISCUSSION
This Court has jurisdiction under section 10(l) of the Act, to entertain the petition of the Regional Director for a temporary injunction.
The Regional Director contends that the strike called by Council, which commenced July 23, 1962 and still persists against three members of Association, is an unfair labor practice within the meaning of the language of section 8(b) (4) (i) (ii) (A) of the Act, as amended September 14, 1959 by PL 86-257, Title II, § 201(e), Title VII, §§ 704(a)-(c), 705 (a), 73 Stat. 525, 542, 545. More specifically, it is the contention of the Petitioner that the respondent labor organization has engaged and is engaging in a strike having as an object thereof forcing Association to enter into an agreement prohibited by subsection (e) of section 8 of the Act, as amended. Subsection (e) (supra) makes unlawful the entry into an agreement between a labor organization and an employer "whereby such employer * * * agrees to cease * * * doing business with any other person," and renders any such agreement previously or thereafter entered into unenforceable and void to that extent. However, the same subsection (e) expressly provides that nothing contained in that subsection "shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, * * *."
There appears at the outset a remarkable inconsistency between the allegations of the Petition for injunction under section 10(l) and those of the Complaint of the charging party to the Board, of which a copy is annexed to the Petition. The charging party's complaint was filed with the Board on June 4, 1962. It alleges that "Since on or about June 1, 1962 and at all times thereafter, the * * * labor organization has engaged, induced or encouraged employees of employer members of the Associated Contractors of Essex County, Inc. and employees of the other employers, to engage in a strike or a refusal in the course of their employment to perform services for any of the employer members of the Associated Contractors of Essex County, Inc.; and threatened, coerced, or restrained said employers; and object thereof being to force said employers to enter into an agreement which is prohibited by Section 8(e)." The foregoing allegations find no support in the evidence before me.
The Petition of the Regional Director charges that, in support of Respondent's demand for inclusion of Article 18 in the collective bargaining agreement under negotiation, Respondent called a strike on July 20, 1962, and, since on or about July 23, 1962, has been engaged in such a strike; and that an object of the strike which was threatened on July 20 and commenced on July 23, was to force the Association to enter into an agreement prohibited by section 8(e) of the Act. Therefore, says the Board, that strike *938 constitutes a violation of section 8(b) (4) (i) (ii) (A) of the Act.
The strike referred to in the complaint of the charging party as having commenced on June 1, 1962, actually commenced on June 4, 1962, and it was amicably settled and terminated on June 20, 1962. It was not until the Association refused, on July 20th, to execute a form of collective bargaining agreement which contained Article 18, that the strike which the Petitioner seeks to restrain commenced, and that was on July 23, 1962. However, for the purposes of this opinion, I treat the strike which commenced on July 23, 1962 as related to that complained of by the charging party which commenced on June 4, 1962. See National Licorice Co. v. N. L. R. B., 1940, 309 U.S. 350, 369, 60 S.Ct. 569, 84 L.Ed. 799; N. L. R. B. v. Fant Milling Co., 1959, 360 U.S. 301, 79 S.Ct. 1179, 3 L.Ed.2d 1243.
It is strongly urged by Respondent that the refusal of the Association to enter into a collective bargaining agreement containing Article 18 was not in good faith, but was employed in an attempt to obtain concessions from respondent respecting its economic demands, after such demands had been agreed upon by the Association's bargaining committee. Cf. N. L. R. B. v. Truitt Mfg. Co., 1956, 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027. Indeed the exclusion of any part of Article 18 from the new contract was not among the written demands submitted in behalf of the Association for bargaining purposes. However, the good faith issue, if it exists, is of secondary concern in this case, because I find from the evidence that the strike which the Petitioner seeks to have enjoined was not and is not an unfair labor practice within the meaning of the statute upon which the charging party and the Petitioner base their contentions to the contrary.
The contentions of the Petitioner pose three questions:
(1) Does the language which Council insists upon having included in the new collective bargaining agreement relate to contracting or subcontracting of construction work to be done at the site of the construction?
(2) If the language does so relate, does its inclusion in the collective bargaining agreement constitute an unfair labor practice?
(3) Is the employment of a strike to force the inclusion of the disputed language in the new agreement an unfair labor practice within the meaning of the statutory language relied upon by the Petitioner?
While this Court is called upon only to determine whether or not the Board has reasonable cause to believe that an unfair labor practice exists, if, as a matter of law it conclusively appears that such an unfair labor practice is non-existent, this Court must deny the injunctive relief petitioned for. In determining whether there is any basis for believing that an unfair labor practice exists, we are bound by the provisions of the 1959 amendment to the Taft-Hartley Act, which became effective on November 13 of that year. That amendment added to section 8 a new subsection designated as (e). That new subsection declared it to be an unfair labor practice for an employer and a union to enter into an agreement whereby the employer promised to cease doing business with any other person and declared that any such agreement would be unenforceable and void. However, the same subsection (e), contains a proviso that nothing contained in subsection (e) applies to an agreement between parties in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction. The provisions of Article 18 to which the Association objects and upon which the Respondent insists constitute a portion of an agreement between parties in the construction industry relating to contracting or subcontracting of work to be done at the site of the construction. Therefore, the clause in question is a perfectly lawful provision and consequently its inclusion does not constitute an unfair labor practice, nor render the proposed agreement *939 unenforceable. A further effect of the 1959 amendment to the Act was a modification of subsection 8(b) (4) (A) of the original Act by substituting, for the language proscribing a strike having as an object the forcing of an employer to cease doing business with any other person, language proscribing a strike having as an object the forcing of an employer to enter into an agreement proscribed by subsection (e). Since subsection (e) of the amended Act by its terms expressly excepts a contract such as that with which we are here concerned, the strike to force the inclusion of the clause in the contract is, in my opinion, not an unfair labor practice. The employment of coercion (strike) to secure the inclusion of a lawful clause in a collective bargaining agreement is no more an unfair practice than would be the employment of similar pressure to obtain the inclusion of a higher wage rate in such an agreement. 29 U.S.C.A. § 163; N. L. R. B. v. International Rice Milling Co., Inc., 1951, 341 U.S. 665, 672, 71 S.Ct. 961, 95 L.Ed. 1284.
The language in dispute does not constitute a "hot cargo" clause. See Schauffler v. Brewery and Beer Distributor Drivers, D.C.Pa.1958, 162 F.Supp. 1, at page 10. As is indicated in its catchline (see footnote 1 supra), Article 18 relates to Strikes, Lockouts and Arbitration. The parties agree that there shall be no cessation of work for any reason except for a non-union condition or failure to make required payments to the pension fund and/or welfare fund. The term "non-union condition" is therein defined in the language which is the present bone of contention, as a situation in which "employees are employed without a collective bargaining agreement on any construction work which is normally performed by employees working under a collective bargaining agreement with a union * * *." This language in effect would require the contractors to exclude non-union employees from the construction job site. If such non-union employees are permitted to work at the site, it is stipulated that employees bound by the proposed agreement may refuse to work, and "to the extent legal" the Union may request employees to leave their jobs. In short, the inclusion of the critical language would permit employee members of Council to refuse to work alongside of non-union employees at any job site, without thereby violating the provisions of the agreement.
Among the authorities upon which Petitioner relies to support his contention that the existing strike constitutes an unfair labor practice are Local 1976, United Brotherhood of Carpenters, etc. v. N. L. R. B., 1958, 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186; N. L. R. B. v. Local 47, International Brotherhood of Teamsters, etc., 5 Cir. 1956, 234 F.2d 296; Kennedy for and on Behalf of N. L. R. B. v. Construction, etc. Laborers, etc., D.C.Ariz.1961, 199 F.Supp. 775; and Construction etc. Laborers, etc. v. Independent Contractors Association, 7/26/62, 137 NLRB No. 149, 31 LW 2083 (8/7/62).
Local 1976, supra, is frequently referred to as the "Sand Door" case, and dealt with the effect of "hot cargo" provisions in collective bargaining agreements. In that case, the collective bargaining agreement between the Union and two general contractors engaged in constructing a hospital, contained a provision that "workmen shall not be required to handle non-union material." Members of the Local refused to hang doors manufactured by a non-union supplier. The distributor of the doors (Sand), filed a complaint with the N. L. R. B. charging the Union with an unfair labor practice by reason of its concerted refusal to hang the doors, and calling of a strike by reason of the contractor's use thereof. It was the object of that strike to force the contractor to cease doing business with the supplier of the doors. The Board issued a cease-and-desist order against the Union which was enforced by the Court of Appeals, 9 Cir., 241 F.2d 147. On certiorari the Supreme Court affirmed the judgment of the Court of Appeals enforcing the cease-and-desist order of the *940 Board. In reaching its conclusion, the Supreme Court construed the language of § 8(b) (4) (A) as it then existed (before the amendment of 1959), and concluded that despite the existence of the contractual provision in the master agreement permitting employees thereunder to refuse to handle non-union goods, that provision could not be used by the Unions as a defense to a charge of inducing employees to strike or refuse to handle goods for objectives proscribed by the Act. The language of the statutory proscription, as it then existed, 29 U.S.C.A. § 158(b) (4) (A), provided that "it shall be an unfair labor practice for a labor organization or its agents * * * to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is: (A) forcing or requiring any employer * * * to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, * * * or manufacturer, or to cease doing business with any other person; * * *." The 1959 amendment completely changed the language of subdivision (A) of section 158 (b) (4), by making it an unfair labor practice for a labor organization to engage in a strike, an object of which is "(A) forcing or requiring any employer * * * to enter into any agreement which is prohibited by subsection (e) of this section; * * *." However, subdivision (B) of the same section in the 1959 amendment incorporates (and supplements) the language previously contained in subdivision (A) of the old Act. In the petition presently under consideration, however, no reference is made to subdivision (B) and the charge relates only to subdivision (A).
I am not unmindful of the legislative history of the Labor-Management Act of 1959 to be found in the Conference Report No. 1147, U.S.Code Cong. and Adm. News, 86th Cong., First Sess., 1959, at page 2511, relating to "hot-cargo agreements," and discussing the effect of the "Sand Door" case, supra, upon the provisions of section 8(e) of the Act. The Conference committee therein points out that the proviso relating to contracting or subcontracting of work at the site of construction "does not exempt from section 8(e) agreements relating to supplies or other products or materials shipped or otherwise transported to and delivered on the site of the construction. The committee of conference does not intend that this proviso should be construed so as to change the present state of the law with respect to the validity of this specific type of agreement relating to work to be done at the site of the construction project or to remove the limitations which the present law imposes with respect to such agreement. Picketing to enforce such contracts would be illegal under the Sand Door case * * *. To the extent that such agreements are legal today under section 8(b) (4) of the * * * Act, as amended, the proviso would prevent such legality from being affected by section 8(e). The proviso applies only to section 8(e) and therefore leaves unaffected the law developed under section 8(b) (4). * * *"
The Sand Door case, upon careful perusal, does not, in my opinion, disclose support for the contention that the presently pending strike constitutes an unfair labor practice under the Act, either before or since the 1959 amendment. The very first sentence of the opinion in Sand Door (357 U.S. 93, 78 S.Ct. 1011,) points out that it dealt with hot cargo provisions in collective bargaining agreements and raised the question whether such provisions constituted a defense to a charge against a Union of an unfair labor practice under section 8(b) (4) (A) as it read prior to the 1959 amendment. There was there involved only a question of secondary boycott, which is not a subject under consideration in the case at bar. Sand Door did not hold that members of a labor organization, in negotiating a collective bargaining *941 agreement with their employers, might not employ a strike as a means of forcing the employers to include in the agreements a provision that members of the Union would not be forced to work upon construction projects alongside of non-union employees of subcontractors thereon. The opinion in Sand Door states (at p. 105, 78 S.Ct. at 1019) that: "The freedom of choice for the employer contemplated by § 8(b) (4) (A) is a freedom of choice at the time the question whether to boycott or not arises in a concrete situation calling for the exercise of judgment on a particular matter of labor and business policy. Such a choice, free from the prohibited pressures whether to refuse to deal with another or to maintain normal business relations on the ground that the labor dispute is no concern of his must as a matter of federal policy be available to the secondary employer notwithstanding any private agreement entered into between the parties." We are not here confronted with any question as to freedom of choice in such connection, and it is very obvious that the Sand Door case relates to what is now 8(b) (4) (B) and not to 8(e) or 8(b) (4) (A), as it is now written.
A petition similar to that presently before this Court was presented to Judge Wright in Lebus, Regional Director, etc. v. Local 60 United Association of Journeymen, etc. (Plumbers), whose decision of April 14, 1961 is reported in D.C., 193 F.Supp. 392. The dispute which precipitated the proceeding before the Board in connection with which the Regional Director there sought a preliminary injunction, was the decision of a general contractor to have two of his own pipe fitter employees, who were members of the respondent Union, install cast iron pipes and pumps rather than to let out the work to a plumbing contractor in compliance with the preference of the Union. Respondent insisted that it was immaterial to it whether a union or a non-union subcontractor was selected for the work, but the Regional Director charged that the respondent's picketing of the job site was designed to force the general contractor to enter into a prohibited "hot cargo" agreement in violation of section 8(b) (4) (A) and compel him to assign work to one craft in preference to another, in violation of section 8(b) (4) (D) of the Act, as amended. In considering the 8(b) (4) (A) charge, Judge Wright's opinion states (commencing at page 392) that:
"There is no showing whatever that the Union has ever demanded from Binnings (the general contractor) an agreement whereby the contractor would obligate himself to use only union subcontractors. The Union expressly denies any such intent and it cannot be inferred from the circumstances. On the contrary, whatever may have been its original motive, before this proceeding was initiated the Union had publicly stated its willingness to accept a non-union subcontractor for the disputed work.
"But, even if this was one of the objects of its activity, there is no violation of the Taft-Hartley Act involved. For, as already noted in LeBus v. International Union of Operating Engineers, etc., D.C.E.D.La., 188 F.Supp. 392, 396, note 5, § 8(b) (4) (A) only condemns coercive action `forcing or requiring any employer * * * to enter into any agreement which is prohibited by subsection (e) of this section,' and the cited subsection expressly exempts from the general ban on so-called `hot cargo' clauses `an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work.' 29 U.S.C.A. §§ 158(b) (4) (A) and 158(e). There is no merit in the N.L.R.B.'s argument that the quoted proviso of subsection (e) merely sanctions voluntarily entering into a `hot cargo' agreement in the construction *942 industry but does not lift the ban on coercive measures designed to force such a stipulation from an employer. Whatever the wisdom of the policy, the clear text of section 8(b) (4) (A) denies the union its traditional weapons only where it would use them to secure an illegal agreement, and neither § 8(e), which `shall not apply' to such an agreement, nor any other provision, condemns the so-called `subcontractor clause' in bargaining contracts. As the N.L.R.B. itself emphasizes, the Conference Report with regard to the proviso to § 8(e) dealing with such agreements says it was `not intended * * * [to] change the existing law with respect to judicial enforcement of these contracts or with respect to the legality of a strike to obtain such a contract,' and, while either implication might be read in this language, the fact is that striking to obtain a subcontractor agreement was not illegal when the Taft-Hartley Act was amended in 1959. Local 1976, United Brotherhood of Carpenters, etc. v. National Labor Relations Board (Sand Door) 357 U.S. 93, 78 S.Ct. 1011, 2 L.Ed.2d 1186, * * *, had merely held that such an agreement could not be `enforced' through a prohibited secondary boycott, but it did not condemn other lawful activity directed to persuading the employer to enter into that type of stipulation. Nothing in the original Taft-Hartley law, or in its legislative history, indicates an intent to ban such activity and there is no ground for holding that conduct illegal. It follows that the charge under § 8(b) (4) (A) is without merit." (Italic emphasis taken from text.)
On June 6, 1961 Judge Kilkenny of the District of Arizona decided Kennedy, Regional Director, etc. v. Construction, Production and Maintenance Laborers Union, etc., D.C., 199 F.Supp. 775. In that case the Regional Director had petitioned the District Court for a temporary injunction pending the final disposition of a complaint before the Board on charges made by Independent Contractors Association that the defendant Construction Union was engaging in unfair labor practices within the meaning of §§ 8(b) (4) (i) (ii) (A) and (B), and 8(b) (7) (C) of the Act as amended in 1959. The sections cited are referred to by Judge Kilkenny as the "hot cargo," "organizational picketing" and "secondary boycott" segments of the Act, respectively. The District Court opinion discloses that a general contractor in the construction business in Phoenix, Arizona (Colson) was engaged in commerce as defined in the Act, upon certain projects including one referred to as the Yellow Front Project. Representatives of the respondent Union demanded recognition as representatives of Colson's employees and attempted to compel Colson to enter into a contract with the Unions represented by the respondent whereby it would be necessary that all subcontractors employed by Colson would abide by the terms of the Arizona Master Labor Agreement. That Agreement provided that if a contractor should subcontract construction work, the terms of the Master Agreement should extend to and bind that subcontracted work and that the subcontract should contain provisions requiring the subcontractor to comply with the terms of the Master Agreement. It was the contention of the Regional Director in that case that the terms of the Master Agreement, if applied to subcontractors, would force the general contractor to cease doing business with his subcontractors if they failed to comply with the Master Agreement. The picketing at the Yellow Front Project of Colson displayed signs stating that it was the general contractor who was being picketed and that its object was the organization and representation by the Carpenters' Local of the carpenters employed at the site. In discussing the "hot cargo" charge, Judge Kilkenny reviewed the legislative history of the section upon which the charge was predicated *943 and concluded that while the petitioner's contention was sound to the extent that Congress did not intend to change the rule of the "Sand Door" case, petitioner was "urging a separate violation of the 1959 `hot cargo' legislation under the provisions of (A) (e). It is quite obvious that Congress, when enacting (A) intended to proscribe only those agreements which were prohibited by subsection (e). This is the direct mandate of the legislation. Subsection (e) expressly excepts from the scope of its prohibitions those building and construction contracts and subcontracts such as here involved. The language is so clear and unequivocal that there is no reason to invoke the ordinary rules of statutory construction, nor for that matter any particular reason to use or invoke the Congressional history of the legislation." Judge Kilkenny refers with approval to Judge Wright's decision in the Plumbers' Local 60 case (supra) (193 F.Supp. 392), as rejecting the contention urged by the petitioner in the case then before him (Judge Kilkenny). The latter concludes as follows:
"While I do not fully agree with some of the language used by Judge Wright, I am convinced of the soundness of his ultimate conclusion. Petitioner has failed to show a prima facie violation of section (A)."
Judge Kilkenny did, however, find that the Board had reasonable cause to believe that the "organizational picketing" and the "secondary boycott" charges were sustainable and granted the injunction with respect to those labor practices, but not to the so-called "hot cargo" charge.
After Judge Kilkenny's decision, the Board proceeded with its investigation of the complaint of the charging party, and a majority of the Board made a cease-and-desist order which issued on July 26, 1962, and is reported in 137 NLRB No. 149 (31 LW 2083 of 8/7/62). That order directed the respondent Local to cease and desist from, inter alia, engaging in a strike with an object of forcing Colson "to enter into any agreement which is prohibited by section 8(e)." In reaching its conclusion, the Board's majority decision has this to say respecting the provisions of section 8(e) of the Act as amended:
"Reading section 8(e) together with section 8(b) (4) (A) in the light of the aforementioned statements by Senator Kennedy and Representative Bardan we conclude that the construction exemption in section 8(e) was not intended to remove from the reach of section 8(b) (4) picketing and other proscribed conduct which is designed to secure such contracts as are before us in this case."
The conclusion of the majority of the Board in the Local 383 case was reached because, as the language of its decision clearly states:
"If Respondent, by its picketing and oral demands, sought to have Colson sign the Master Agreement containing the clause quoted in the margin (the clause provided that the terms of the agreement should extend to and bind construction subcontractors) this contract, by its very terms, would have compelled Colson to cease doing business with * * * its nonunion subcontractors, if they would not comply with the contract's provisions. All parties recognize that this was the necessary effect of Colson's signing the Master Agreement and the Respondents made it plain to Colson that it would be expected to adhere to the contract and transfer its work to contractors who would comply with its provisions. * * * Once executed, the Master Agreement would have precluded Colson from dealing with subcontractors who would not abide by its terms and it was intended, we find, that Colson would implement the contract and cease doing business with the above mentioned nonunion subcontractors. Picketing in these circumstances was held to be for an object of forcing an employer to cease doing business *944 within the meaning of section 8(b) (4) (A) of the Act, prior to the 1959 amendments. * * *
"While the old Section 8(b) (4) (A) became section 8(b) (4) (B) by virtue of the 1959 amendments, it was not otherwise changed to the extent pertinent here. * * *
"Under all the circumstances of this case, and particularly in view of our holdings in similar cases decided under section 8(b) (4) (A) of the Act before the 1959 amendments, the retention of that section's language in the present section 8(b) (4) (B) as explained above and the strongly declared Congressional purpose to prohibit the use of secondary pressure and economic force by Unions to secure an objective such as Respondents sought by its picketing herein, we must find that Respondents' picketing of Colson violated section 8(b) (4) (i) and (ii) (A) and (B) of the Act."
Petitioner urges that this Court should recognize the construction of section 8(e) expressed by the Board in the foregoing language because "the construction of a new statute by the agency administering it is entitled to `peculiar weight'" (citing Norwegian Nitrogen Products Co. v. United States, 1933, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796); but the cited opinion also states "that administrative practice does not avail to overcome a statute so plain in its commands as to leave nothing for construction" (p. 315, 53 S.Ct. p. 358). I respectfully reject as a precedent here the Board's conclusion in Colson and Stevens that the agreement there in question was "prohibited by Section 8(e)" of the Act for the simple reason that the agreement presently in question is expressly excepted from the prohibition of that section by the proviso thereof upon which the Carpenters here rely. Moreover, the clause in dispute expressly limits the Union, in requesting employees under the agreement to leave jobs where a non-union condition exists, "to the extent legal." And Section 2 of Article 18 would render the existence of such a non-union condition a matter for arbitration. The case before me is, in my opinion, factually parallel with the situation which confronted Judge Wright in 193 F.Supp. 392, and with that dealt with by Judge Kilkenny in disposing of the section 8(b) (4) (A) charge in 199 F.Supp. 775.
It is my conclusion, based upon the evidence which has been produced before me, and as a result of my construction of the provision of the Act upon which the charging party bases its unfair labor practice complaint, that the portion of the language of Article XVIII, section 1, to which Association objects and which Council insists upon having included in the new collective bargaining agreement is valid, and would be enforceable under the provisions of section 8(e) of the Act as amended. I also conclude that the strike which has been called by Respondent of the carpenter members who are employees of the three remaining "holdout" contractor members of the Association, is a legal means for the enforcement of such inclusion. The Act protects the right of employees to strike in support of their demands. 29 U.S. C.A. § 163.
I further conclude that the inclusion of the language of the clause referred to relates to contracting or subcontracting of construction work to be done at the site of the construction projects of Association members within the meaning of the proviso contained in section 8(e) of the amended Act.
I determine that neither the inclusion of the language in question, nor the employment of a strike to force such inclusion is an unfair labor practice within the meaning of section 8(b) (4) (A) of the Act as amended.
Since there appears to be no basis upon which the Board may properly conclude that the charged unfair labor practice exists, the Board's petition for preliminary injunction is denied.
*945 This opinion shall constitute my findings of fact and conclusions of law, as required by F.R.Civ.P. Rule 52(a), 28 U.S.C.
Let an order in compliance herewith be presented.
NOTES
[1] The complete text of Article XVIII is as follows:
"ARTICLE XVIII Strikes, Lockouts and Arbitration.
"Section 1. All disputes or complaints of whatsoever character, except jurisdictional disputes covered in Article XVII (Jurisdictional Disputes), if not adjusted by the subordinates involved, shall be referred to a joint committee of the Union and the Association for settlement. The decision of such committee shall be final and binding, If such committee is unable to agree on the subject in dispute, it shall, as soon as possible, be arbitrated by an Arbitrator designated by the New Jersey State Board of Mediation and the decision of the Arbitrator shall be final and binding. Cost of the Arbitrator shall be equally shared by the parties. Either party may request such arbitration without resort to the aforesaid Joint Committee. No cessation of work shall take place for any reason except for non-union condition or failure to make required payments to the Pension Fund and/or Welfare Fund. A non-union condition shall prevail when employees are employed without a collective bargaining agreement on any construction work which is normally performed by employees working under a collective bargaining agreement with a Union affiliated with the Building Trades Department of the AFL-CIO. In such event it shall not be deemed a violation of this Agreement for employees hereunder to individually refuse to work on the job site where such non-union condition exists. To the extent legal, the Union may request employees hereunder to leave such jobs.
"Section 2. Should any Employer violate this Agreement, such violation shall be immediately submitted to the Joint Committee or the Arbitrator above referred to. Said Committee shall meet within 48 hours and proceed forthwith to make a thorough investigation, consider all the facts and evidence presented and thereupon to render a decision. If the Employer is found to have violated this Agreement by the Joint Committee or by the Arbitrator, then such Joint Committee or the Arbitrator, as the case may be, shall order an appropriate adjustment and the Association shall, to the extent and in the manner permitted by applicable law, designate the employees for the work covered hereunder, on all jobs of the Employer for one (1) year. Any violation of this section shall render this Agreement void as to the Employer violating same." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262975/ | 207 F.Supp. 700 (1962)
VILLAIN & FASSIO E COMPAGNIA INTERNAZIONALE DI GENOVA SOCIETA RIUNITE DI NAVIGAZIONE, S.P.A., as owner of the MOTOR VESSEL ANGELA FASSIO, Libelant,
v.
The TANK STEAMER E. W. SINCLAIR, her engines, boilers, etc., and Sinclair Refining Company, Respondent (and Cross-Suit).
United States District Court S. D. New York.
August 2, 1962.
*701 *702 Ehrich, Stock, Valicenti, Leighton & Holland, by Albert D. Jordan, Robert Nicol and Gordon W. Paulsen, New York City, for libelant.
Burlingham, Underwood, Barron, Wright & White, by Stanley R. Wright, and Edward L. Wyckoff, New York City, for respondent.
EDELSTEIN, District Judge.
This is a consolidated cause arising out of a collision between the motor vessel ANGELA FASSIO and the tanker E. W. SINCLAIR on the morning of December 3, 1959, in the Delaware River. The ANGELA FASSIO, owned by libelant, Villain & Fassio E. Compagnia Internazionale Di Genova Societa Riunite Di Navigazione, S.p.A. (Villain & Fassio), was built in 1956. She is 492 feet long, 62 feet abeam, of 7016 gross tons, and powered by 5500 h. p. diesel motors. At the time of the collision her drafts were about 12' 1" forward and 16' 9" aft. The E. W. SINCLAIR, owned by respondent Sinclair Refining Company (Sinclair), is a tanker built in 1942. She is 520 feet long, 72 feet abeam, of 10,907 gross tons and powered by a 6000 h. p. turbine. On the day of collision, her drafts were approximately 31 feet forward and 30' 6" aft.
On the trial, the only really substantial dispute as to the facts concerned the nature and timing of certain signals sounded by the FASSIO. The chronicle of this collision is fairly well established by the evidence.
On the fateful morning, the ANGELA FASSIO, inbound from New York to Philadelphia under the command of Captain Giovanni Zustovich, picked up a Delaware River pilot at 6:45 a. m. at the Pilot Station. She proceeded up the river until fog was encountered at about 9:00 a. m. near Buoy 42. Believing that it was dangerous to continue up the river, the master and pilot made preparations to turn to starboard out of the *703 channel in order to anchor. By 9:20 a. m. the FASSIO was properly and lawfully anchored in the fog off Arnold Point, approximately 250 meters east of the Liston Range of the Delaware River channel. She was anchored 0.4 of a mile northwest of Buoy 42 to three shots of chain (45 fathoms) on a heading of 150° true, directly into a flood current of about 1½ knots then running up channel in a northwest (330° true) direction. Visibility in the area at that time was limited to 100 yards due to the dense fog prevailing. The captain and watch officer remained on the bridge while the pilot went below to rest. A double anchor watch, consisting of the ship's carpenter and an able-bodied seaman, was posted on the bow. From the time of anchoring to the time of collision, the fog bell signal prescribed by the Inland Rules, 33 U.S.C. § 191, 33 U.S.C.A. § 191 (1958), was sounded continuously by the anchor watch.
Sometime before the collision, the chief officer of the FASSIO, then standing on the starboard wing of the bridge, reported to the captain that he thought he heard a distant whistle signal. Almost immediately thereafter, the watch officer reported a target on the radar screen. At what time this happened, as well as the timing of all the subsequent events, is vigorously disputed by the SINCLAIR. Resolution of these questions of fact is difficult in view of the conflicting testimony. But the course of events is clear even if the precise moment when each act took place is not. For the moment, the narrative will proceed using the timing urged by the FASSIO.
When these two reports were given to the captain, approximately twenty minutes before the collision, he remained on the wing of the bridge for a minute or two, listening for a further signal. Hearing nothing, he relieved the watch officer at the radar screen. The radar with which the FASSIO was equipped was a Decca model, in good working order, which had been set on a three mile range. Calibration of the radar had been checked by visual comparisons the prior evening and that same morning. Captain Zustovich observed the target to be 2.2 miles distant and approaching on the easterly edge of the channel. By observing the approaching target's movement over a three-minute period, he computed its speed to be twelve knots or better. Continuing his radar observations, the captain correctly determined that the approaching target was a ship moving at high speed on the extreme easterly edge of the channel.
As the captain continued to observe the oncoming vessel he became apprehensive. He knew that the fog was present around Buoy 42, having encountered it only a half hour earlier, and knew that visibility was limited to 100 yards. He was aware that the limit of range of a fog bell was about 0.3 of a mile. He had no way of knowing whether the other vessel had radar.[1] Thus, he was concerned lest his presence and position *704 were not known to the other vessel. He considered the possibility that the approaching vessel might intend to anchor due to the fog, as he himself had done earlier. In any event, he knew that the current was setting in somewhat of an easterly direction from the channel toward his vessel. He could not be certain that the moving vessel was not slightly to the east of the channel. Based upon all these factors and the high speed of the approaching vessel, Captain Zustovich was concerned that his bell would not be heard in time to prevent a collision. Fearful that a danger of collision existed, he decided to give a signal, supplementary to his bell, to warn the approaching vessel of his presence and position.
When the approaching vessel was a mile away, according to his radar observations, the captain personally sounded the international "R" signal (a short blast of one second, a long blast of five seconds, and a short blast of one second). He observed that the ship's clock mounted in the forward bulkhead of the bridge showed the time as 9:44 plus a few seconds. When the approaching vessel was 0.5 of a mile distant, near Buoy 42, and continuing to approach with apparently undiminished speed, the captain ordered the chief officer to sound the "R" signal again. The watch officer observed the ship's clock to show 9:47 at the time the second signal was sounded.
Here there is a slight discrepancy in the evidence. At the trial, the captain testified that shortly after the second whistle signal was sounded he saw the target of the approaching ship merge with the target of Buoy 42 on the radar screen and almost immediately lost the image of the ship in the "sea return." This is a bright disc or spot in the center of the radar screen caused by the reflection of the radar waves from the waters near the vessel. In his nautical journal, the captain recorded that the approaching vessel's pip merged with Buoy 42 a moment before he ordered the sounding of the second "R" signal. I do not believe that it makes any difference whether the pip merged with the image of the buoy a moment before or a moment after the signal sounded. Suffice it to say that the second signal was made at about the time the SINCLAIR was at Buoy 42.
After the second signal was sounded, Captain Zustovich went to the starboard wing of the bridge and ordered the anchor watch to "intensify to the maximum" the ringing of the fog bell. The captain and his officers remained on the starboard wing of the bridge until, some three minutes later, the E. W. SINCLAIR came out of the fog at observably high speed and struck the ANGELA FASSIO. The time of the collision, according to the clock aboard the FASSIO was 9:50 a. m.
On the SINCLAIR, meanwhile, events were proceeding apace. The E. W. SINCLAIR, inbound to Philadelphia on a coastwise voyage from Texas with a full cargo of 16,000 tons of Bunker "C" heating fuel, was under the command of Captain Richard E. Dutson. She arrived at the Pilot Station shortly after the FASSIO and picked up her pilot, Francis Reardon, shortly before 7:00 a. m. The vessel then proceeded up channel in clear weather with visibility extending up to twelve miles. She was proceeding at a sea speed of 13.3 knots. A freighter, which later proved to be the ANGELA FASSIO, was observed by the captain and pilot approximately four miles ahead of the SINCLAIR. She was proceeding rapidly up the channel and not much attention was paid to her. Nor was any effort made to keep track of her.
About half way between Ship John Light and Buoy 42 fog was observed approximately two miles ahead in the vicinity of Buoy 42. Discussing the situation, the captain and pilot decided that they would make Buoy 42, and that if the fog was dense after entering it, the SINCLAIR would anchor north of Buoy 42. Accordingly, the engines were put on standby, the chief mate was ordered to stand by the anchor, a lookout was *705 posted on the bow and fog signals were commenced. The order to the engine room was for the purpose of bringing the ship's speed from sea speed to maneuvering speed. The order is regularly given approximately ten minutes before intended maneuvers in order to enable the engine room personnel to adjust the engines and boilers so as to be able to undertake maneuvers involving changes of speed. The effect of the order, when accomplished, was to reduce the engine revolutions from 88, yielding a sea speed of about 13 knots to 66 revolutions, yielding about 10 knots.
It is at this point in the narrative that the timing of the various acts is disputed. The engine maneuvers of the SINCLAIR were recorded in the Engine Room Bell Book. The book is kept in the regular course of business by the engine room personnel, who immediately record all orders which are received. They are not influenced by what is transpiring above decks, nor are they concerned with the reasons for any particular order. The entries in the bell book conflict in some respects with the testimony of the captain and pilot and with some of the entries made in the deck logs. The entries in the latter documents, unlike those contained in the Engine Room Bell Book, were not made simultaneously with the event. I find that the Engine Room Bell Book constitutes the best evidence of the engine maneuvers and their timing, and it is so accepted.[2]
Counsel for the SINCLAIR, recognizing the inherent trustworthiness of the bell book entries, now also agrees that they provide the best evidence of what occurred on the day in question. It is not surprising, however, that he places a different interpretation on the entries contained therein. Before attempting to resolve the different theories as to the timing of the events, we shall continue the narrative according to the version urged by the SINCLAIR.
About the time the SINCLAIR entered the fog, Buoy 42 was sighted close *706 at hand on her starboard side. The testimony from the SINCLAIR was that just at that time a signal consisting of three short blasts was heard from ahead. The captain and the pilot knew that the direction and distance of whistle signals heard in fog can be misleading. They were unable to determine the distance of the signal. Nevertheless, the captain and the pilot positively placed the direction of the signal as coming from ahead. Believing that the signal they heard was a backing signal, they assumed that a southbound vessel was in the channel with her engines going astern. The testimony was that the pilot then ordered the engines stopped and ordered a turn of 20° right rudder. Those in charge of the SINCLAIR testified that shortly thereafter they heard a second group of three blast signals, similar to the first, and the pilot immediately ordered full speed astern. Moments later, the SINCLAIR sighted the FASSIO, but it was too late to avoid the collision.
The SINCLAIR collided heavily with the anchored ANGELA FASSIO. The fluke of the starboard anchor and flare of the starboard fo'c'sle of the SINCLAIR struck the starboard side of the FASSIO approximately at the forward end of her No. 1 hold, raking and tearing the steel plates and frames of the starboard side of the FASSIO to the after part of her No. 3 hold, a distance of approximately 180 feet. The SINCLAIR, with her engines full astern, came to rest immediately alongside of and parallel to the anchored FASSIO. The time of collision was recorded on the FASSIO at 9:50 a. m. and recorded on the SINCLAIR as 9:47 a. m.
The FASSIO's theory is that the SINCLAIR recklessly proceeded through the fog at high speed, and she ignored whatever signals she heard and that her 20° right turn out of the channel was for the purpose of anchoring due to the dense fog. SINCLAIR's theory is that she turned right onto a collision course in response to an erroneous and misleading signal from the ANGELA FASSIO. Although some of the facts are sharply disputed, the principles of law governing this case are clear.
A vessel properly at anchor, as was the FASSIO, is entitled to the highest degree of privilege. In a collision between a moving vessel and an anchored vessel, the anchored vessel is presumed to be innocent. "[T]here is not only a presumption in her favor, by the fact of her being at anchor, but a presumption of fault on the part of the other vessel, which shifts the burden of proof upon the latter." The Oregon, 158 U.S. 186, 197, 15 S.Ct. 804, 39 L.Ed. 943 (1894). "Such presumption can be wholly overcome only by proof that the moored vessel was solely at fault, that the moving vessel was without fault, or that the collision resulted from an inevitable accident. Carr v. Hermosa Amusement Corp., Ltd., 9 Cir. 1943, 137 F.2d 983; The Clarita and The Clara, 23 Wall. 1, 23 L.Ed. 146; The Oregon, 158 U.S. 186, 15 S.Ct. 804, 39 L.Ed. 943." United Fruit Co. v. Mobile Towing & Wrecking Co., 177 F.Supp. 297, 301 (S.D. Ala.1959); The Cananova, 297 F. 658 (E.D.Pa.1923); Griffin, Collision § 145 (1949). The SINCLAIR has not rebutted the presumption of fault on her part. On the contrary, the evidence conclusively shows that she was at fault for proceeding through the fog at an immoderate rate of speed.
Article 16 of the Inland Rules, 33 U.S.C. § 192 (1958), 33 U.S.C.A. § 192 provides:
"Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions."
Although each case must depend upon its own facts and circumstances, definitions of "moderate speed" in fog are not wanting. "What is moderate speed under such circumstances is a rate of speed not in excess of that which will permit a vessel to stop within the distance she can see another vessel with which she may be in danger of collision." The Tuxedo, 77 F.2d 354 (2d Cir., 1935); The *707 Nacoochee, 137 U.S. 330, 339, 11 S.Ct. 122, 34 L.Ed. 687 (1890); The Colorado, 91 U.S. 692, 702, 23 L.Ed. 379 (1876). The rule is stated not only in terms of the range of visibility but also in terms of requiring the vessel to be able to stop before a collision occurs. Furthermore, the moderate speed provision requires that the vessel slacken speed before entering a fog bank, "because otherwise she could not comply with the rule that requires her to be going at `moderate speed' the moment she is in it." The City of Alexandria, 31 F. 427, 431 (S.D.N.Y.1887); The Munalbro, 280 F. 224, 226 (D.Mass.1922); Donnell v. Boston TowBoat Co., 89 F. 757, 761 (1st Cir. 1898), cert. denied, 172 U.S. 648, 19 S.Ct. 884, 43 L.Ed. 1182 (1899).
No matter what faults she attempts to attribute to the FASSIO, the SINCLAIR cannot avoid the fact that her speed was excessive. This is indicated by the time it took her to traverse the distance of 4.3 miles between Ship John Light and the point of collision. This was accomplished in twenty minutes, making an average speed of 12.9 knots, as compared with her sea speed of 13.3 knots. And during this time, half this distance was covered after her engines had been ordered to maneuvering speed. Furthermore, the SINCLAIR's speed was computed by Captain Zustovich based upon his radar observations. As the SINCLAIR came out of the fog her bow wave was also observed by those on the FASSIO as indicating a speed of about 10 knots, and she closed the distance of visibility in seconds. Notwithstanding that her engines were going full astern at the moment of impact, the SINCLAIR raked down the side of the FASSIO for a distance of approximately 180 feet with such force that she tore through the steel plates and steel frames of the FASSIO. The evidence bears out the conclusion that the SINCLAIR was travelling at about 10 knots through the water. Although visibility was only about 100 yards, it would have taken the fully loaded SINCLAIR, while travelling at that speed, between 2000 and 3500 feet (0.4 to 0.7 of a mile) to come to a standstill after an emergency full astern order was given. Under the circumstances prevailing on the morning of the collision, the SINCLAIR's speed was clearly excessive and constituted a statutory fault in violation of Article 16 of the Inland Rules. 33 U.S.C. § 192 (1958), 33 U.S.C.A. § 192.
The ANGELA FASSIO charges the SINCLAIR with yet another fault with respect to her maneuvers on hearing a whistle signal from the fog. The second paragraph of Article 16 of the Inland Rules, 33 U.S.C. § 192 (1958) 33 U.S. C.A. § 192 provides as follows:
"A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over."
There is no dispute over the fact that the SINCLAIR turned to starboard at some point. The FASSIO contends, however, that this turn was not made in response to any signal, that the engines were not stopped, and that the purpose of the turn was to proceed to anchor. The SINCLAIR urges that her turning maneuver was made in response to a three blast signal from the FASSIO which was heard aboard the SINCLAIR just as she passed Buoy 42. It is here that a sharp conflict exists over the facts. Although I am not at all persuaded by the timing urged by the SINCLAIR, I shall assume her version for purposes of resolving the question of fault for the turning maneuver.
The SINCLAIR urges that the moment the signal was heard when the vessel was near Buoy 42, her captain and pilot assumed that it came from ahead. It indicated to them that a vessel was under way in the channel with her engines going astern. Since there is no cross traffic in the channel, they assumed that the signal they heard came from a southbound vessel. They further *708 assumed that such a vessel with her engines going astern would tend to pivot her stern to port bringing her over onto the SINCLAIR's side of the channel. Thus, the SINCLAIR's captain and pilot assumed that the safest maneuver was to get out of the channel. They preferred to risk a grounding rather than a collision. They testified that the engines were stopped and a 20° right rudder was ordered.
Although there is no absolute rule barring a change of course before the position of the other vessel is ascertained with certainty, this statement is subject to qualification. "A vessel in fog, hearing the signal of another vessel from such a direction as to involve risk of collision, should not alter helm blindly, nor, above all, should she try to make an alteration of helm take the place of proper speed control." Griffin, Collision, § 129 at 324 (1949). In The Vindomora, [1891] A.C. 1, 5, cited by SINCLAIR, Lord Herschell indicated that "in each particular case you must look to see what the circumstances were, and inquire in each particular case, were there circumstances existing which justified the manoeuvre executed, or which prevented that manoeuvre from being a wrong manoeuvre?"
Under the circumstances existing in this case, there is certainly substantial doubt as to the propriety of the SINCLAIR's maneuver. The assumptions upon which she seeks to justify it are questionable. Her captain and pilot assumed that the vessel which was apparently forward of her beam was southbound. They discounted the possibility that she might be northbound because they had not seen another vessel going north. But they had seen the FASSIO heading north earlier in the morning. Merely because the FASSIO had been proceeding up channel rapidly in clear weather did not justify the SINCLAIR in ignoring the possibility that the fog had slowed her down. Merely because the SINCLAIR chose to speed through the fog was no warrant for assuming other vessels would fail to heed the Rules and moderate their speeds. They also discounted the possibility that the signal might have come from a vessel that was maneuvering to anchor or from a vessel that was maneuvering to leave an anchorage. Furthermore, the assumption that a backing vessel's stern will swing to port was supported by a reference to Crenshaw, Naval Shiphandling, 445 (2d ed. 1960). This treatise indicates that the proposition is correct when a vessel is moving from a position dead in the water or moving with little way on. "[B]ut when proceeding Ahead, the conflicting forces may reduce the Side Force markedly or even reverse it. There may be cases where a single-screw ship has a tendency to veer to the Right when moving ahead." Ibid.
Before a helm action is taken in fog, there must be a determination of the other vessel's position which is more than a mere surmise or speculation. Given the prevailing conditions of fog and the known propensity of fog to distort sounds so that determination of position, distance and course is uncertain, The City of New York, 147 U.S. 72, 84, 13 S.Ct. 211, 37 L.Ed. 84 (1893), the SINCLAIR was not warranted in assuming that the vessel she heard was in any particular place or on any particular course. The Celtic Monarch, 175 F. 1006 (9 Cir. 1910). "Her blind alteration of course hard right to starboard, on a mere guess that she might thus avoid collision was clearly a fault * * *." Afran Transport Co. v. The Bergechief, 274 F.2d 469, 472 (2d Cir. 1960); see Griffin, Collision § 129 (1949). The cases cited by SINCLAIR to justify her maneuver do not excuse her. In The Vindomora, supra, the Court's refusal to lay down a hard and fast rule prohibiting course changes was premised upon "a sufficient indication of the position of the other" vessel. [1891] A.C. at 9. In The Umbria, 166 U.S. 404, 17 S.Ct. 610, 41 L.Ed. 1053 (1897), the Court recognized that a change of helm is not a fault in every case. Under the facts of that case, the Court found sufficient justification for the IBERIA's change of course. *709 And the gross fault of the UMBRIA was such that the Court was unwilling to attribute a fault to the IBERIA which would require her to share the damages. In The Lepanto, 21 F. 651, 658 (S.D.N.Y. 1884), the court indicated that the sound heard came from "a precise direction." Moreover, the exoneration from fault for a course alteration was conditioned on the change being "accompanied by the order to stop and reverse at full speed * * *." 21 F. at 659. Thus, although course changes in fog are not condemned universally, the situations where the master's judgment to alter course is approved comprehend circumstances where the position and course of the other vessel are ascertained and where proper speed is maintained. See Griffin, Collision 326-27 (1949) and cases cited.
Surely, the more prudent course for the SINCLAIR would have been to take off her way and come to a stop in the water before maneuvering. This would have required the engines to be put full astern. But because of the speed at which she was moving, it would have taken her a minimum of four ship lengths to stop, a distance concededly beyond the range of her visibility. Upon hearing a signal from out of the fog she was faced with a dilemma; to reverse engines and stay in the channel while trying to stop, or to take her chances to the right of the channel. Generally, a master will not be charged with a fault for a reasonable judgment which he makes in a moment of peril. See Green v. Crow, 243 F.2d 401, 403 (5th Cir. 1957); Petition of Socony Vacuum Transp. Co., 93 F.Supp. 718, 727 (S.D. N.Y.1950). But this is only the case where the master is put into a position of peril not of his own making. The SINCLAIR's dilemma here is clearly attributable to her excessive speed. For purposes of this analysis, we may even disregard the question of what signal the FASSIO sounded. It is apparent that the SINCLAIR was concerned less with its character than with its direction.[3] Had she heard the "R" signal or a danger signal instead of the three blast backing signal she claims to have heard, it is reasonably probable that her actions would have been the same. She heard a signal forward of her beam and apprehended a collision with a vessel presumed to be in front of her. Her maneuver to the right ensued. If in fact her turn was made in response to a signal, it was made because her excessive speed left her no alternative. Her helm order at the speed she was travelling in fog was clearly dangerous. Had the SINCLAIR been travelling at the moderate speed which the Rules require, she could easily have stopped and ascertained the presence of the signalling vessel. And if she made a judgment to turn, she could have stopped upon sighting the FASSIO, had her speed been moderate.
Counsel for the SINCLAIR argues that the court should be guided by the probabilities in determining the truth where the facts are in dispute. He contends that it is improbable that a fully loaded tanker would be guilty of maneuvering through the fog at a rate of speed in violation of the Inland Rules. The facts, however, conclusively prove that the SINCLAIR was proceeding at a speed in excess of that demanded by the Rules. "The fact that the rule is *710 more honored in the breach than in the observance, merely means that people are usually willing to take chances rather than submit to the galling necessity of poking about in a fog * * *." Anglo-Saxon Petroleum Co., Limited, of London, England v. United States, 222 F. 2d 75, 78 (2d Cir.), rehearing denied, 224 F.2d 86 (2d Cir. 1955). In addition to her statutory fault of excessive speed, the SINCLAIR is also chargeable with the fault of failing to navigate with caution.
Where the fault of the moving vessel is clear, as it is here, she is solely liable for colliding with an anchored vessel, unless she can show with equal clarity that the accident was caused by the fault of the anchored vessel. The Oregon, supra; The Newburgh, 130 F. 321 (2d Cir. 1904); see The Virginia Ehrman, 97 U.S. 309, 315, 24 L.Ed. 890 (1878). Since the faults of the SINCLAIR are "sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel." The City of New York, supra, 147 U.S. at 85, 13 S.Ct. at 216. She must prove a fault on the part of the FASSIO, and that the fault contributed to the collision. But even if this be proved, the best that SINCLAIR can hope for is a decree for divided damages, for her own navigation was hardly free from fault. Nevertheless, with what little grace can be mustered under the circumstances, the SINCLAIR attempts to persuade the court that the FASSIO should be held for the entire damage. The SINCLAIR charges that the FASSIO was at fault in sounding an improper whistle signal, in failing to ring the fog bell, in failing to maintain a proper lookout and in failing to slack the anchor chain.
Before deciding whether the signal made by the FASSIO was improper, it is necessary to resolve the conflict over what signal she did sound. The SINCLAIR urges that it was a three blast backing signal. In discussing the faults of the SINCLAIR, I accepted, for purposes of argument, that the FASSIO sounded three short blasts and that this was what the SINCLAIR heard. I find as a fact, however, that the signal sounded by the FASSIO was the "R" signal, one short, one long, and one short blast. Counsel for the SINCLAIR, in arguing that the signal was three short blasts, urges that it is improbable that Captain Zustovich counted off the seconds in sounding the signal. I find that he did. The court observed the captain when he gave his testimony at the trial and was impressed with his truthfulness. It is entirely credible that he counted off the seconds in sounding the signal and that he remembered the time when he sounded the first "R" signal. The details surrounding this collision have been seared indelibly in his recollection. His testimony was corroborated by that of Officer Branca, whom I found also to be a credible witness.
The question of whether the FASSIO was at fault in sounding the "R" signal can be broken down into two parts: (1) Was the master justified in sounding any supplementary signal and (2) was his choice of the "R" signal improper?
As a properly anchored and privileged vessel, the FASSIO was subject only to the specific requirement that the fog bell be rung. 33 U.S.C. § 191(d), (1958) 33 U.S.C.A. § 191(d); see The Oregon, supra. But had she done nothing more, her conduct certainly would have been questioned under the General Prudential Rule, 33 U.S.C. § 221 (1958), 33 U.S.C.A. § 221.[4] Where a vessel apprehends danger and does nothing within her power to avoid or mitigate *711 a collision, she is hardly discharging her duty to take the precautions required by the special circumstances of the case. See Griffin, Collision § 157 at 371 (1949); cf., Chesapeake & O. R. Co. v. Cleveland Tankers, Inc., 121 F.Supp. 830, 834 (E.D.Mich.1954). The master of the FASSIO, based upon his radar observations and the prevailing conditions of fog, apprehended danger. He considered the speed of the SINCLAIR, her position on the extreme easterly edge of the channel, the set of the current, the possibility that the SINCLAIR would anchor as he had done, and that the distance within which his fog bell could be heard would not provide adequate warning to the other vessel at the speed she was travelling. See Petition of Socony Vacuum Transp. Co., supra, 93 F. Supp. at 734, 736. The master's prudent decision to sound a supplementary signal was not a fault.
The only fog signal provided for by the Inland Rules for vessels at anchor is the fog bell. 33 U.S.C. § 191(d) (1958), 33 U.S.C.A. § 191(d). The International Rules do provide, however, for a supplementary signal of the character sounded by the FASSIO. 33 U.S.C. § 145m(c)(iv) (1958), 33 U.S.C.A. § 145 m(c)(iv). And The Great Lakes Rules, by amendment in 1948, now require the "R" signal for vessels at anchor in fog. 62 Stat. 82 (1948), 33 U.S.C. § 271(e) (1958), 33 U.S.C.A. § 271(e). Although no case has been cited, nor has one been found, which specifically approved the "R" signal in inland waters, the use of supplementary signals has been sanctioned when danger of collision is apprehended. See The City of Alexandria, supra, 31 F. at 430; The Merchant Prince, 10 Prob.Div. 139 (1892); United States v. Woodbury, 175 F.2d 854, 861-62 (1st Cir. 1949). Petition of Clyde-Mallory Line, A 110-104, S.D.N.Y., May 20, 1937 (summary reported at 1937 Am. Mar.Cas. 837); cf. Union Shipping & Trading Co. v. United States, 127 F.2d 771, 773 (2d Cir. 1942). Both expert witnesses testified that supplementary signals are commonly used when prudent seamanship requires. Under the circumstances prevailing on the day of collision it cannot be said that the master of the FASSIO was at fault for sounding the "R" signal. It is a signal known to mariners and was known to the captain and pilot of the SINCLAIR. The signal provided, to those who would hear and heed it, the information that there was a vessel at anchor in the fog.
Counsel for the SINCLAIR argues that the sounding of the "R" signal was an unauthorized departure from the Inland Rules. 33 U.S.C. § 212 (1958), 33 U.S.C.A. § 212.[5] The cases cited do not bear out this contention. The Pennsylvania, 86 U.S. 125, 22 L.Ed. 148 (1873) did involve a misleading signal. But the fault was found because the barque did not give the required statutory signal and substituted an equivalent which was in fact misleading. In The G. K. Mellon, 30 F.2d 238 (2d Cir. 1929), a tug was held at fault for failing to sound regulation fog signals and her last minute alarm was held not to excuse her. No mention of supplementary signals is made. Similarly, in The Southway, 2 F.2d 1009 (E.D.N.Y. 1924), the employment of a substitute instead of the required signal was condemned. And in The Minnesota, 189 F. 706 (S.D.N.Y.1911) use of the horn instead of the prescribed whistle was found to be a fault. Counsel's quotations from Farwell, The Rules of the Nautical Road 173 (1954) and Knight, Modern Seamanship 377-78 (1960) similarly offer him little support. They do nothing more than describe the differences between the Inland and International Rules. Although Knight recognizes the availability of a danger signal *712 as a supplementary signal, neither treatise indicates a specific prohibition of the "R" signal under the circumstances of this case.
Assuming that the sounding of the supplementary signal was a departure from the Rules, it was one that was justified by the special circumstances here prevailing. 33 U.S.C. § 212 (1958), 33 U. S.C.A. § 212. SINCLAIR argues that any departure from the Rules is likely to cause confusion and increase the likelihood of collision. The case cited in support, Afran Transport Co. v. The Bergechief, supra, held it a fault to give a port to port passing signal in fog when not in sight of the other vessel. "Such a breach of the rules is bound to cause confusion and increase the probability of a collision." 274 F.2d at 472 (emphasis added). Although departures from the Rules to give supplementary signals may not be approved as a general practice, there may be circumstances where it becomes necessary to do so under the General Prudential Rule. 33 U.S.C. § 221 (1958), 33 U.S.C.A. § 221; Union Shipping & Trading Co. v. United States, supra, 127 F.2d at 773; United States v. Woodbury, supra, 175 F.2d at 861-62. Moreover, Article 27 of the Inland Rules specifically recognizes departures for special circumstances. 33 U.S.C. § 212 (1958), 33 U.S.C.A. § 212.
SINCLAIR contends further that if any supplementary signal was to be sounded, the FASSIO should have sounded a danger signal instead of the "R" signal.[6] The expert witnesses concurred that supplementary signals are regularly sounded and that whether or not to do so is a question of judgment. SINCLAIR now seeks to impugn the judgment of Captain Zustovich. Even if the master of the FASSIO is chargeable with an error of judgment, which I find he is not, it cannot be raised to the level of a fault on the facts of this case. "Where the master of a vessel, placed in a situation of peril not of his making, has, acting within the bounds of reason, done that which at the time and under the stress and strain of the moment seemed to be the best thing to do, he will not be charged with fault by second guessing after the event." Green v. Crow, supra, 243 F.2d at 403; The Maggie J. Smith, 123 U.S. 349, 355-56, 8 S.Ct. 159, 31 L.Ed. 175 (1887); The Queen Elizabeth, 122 F. 406, 409 (2d Cir.), cert. denied, 190 U.S. 560, 23 S. Ct. 855, 47 L.Ed. 1184 (1903). His actions are "not to be too freely criticised by those who navigating from the witness chair after the event may think that another course might have been better." The Gulfstar, 136 F.2d 461, 465 (3d Cir. 1943).
Even giving the SINCLAIR the best of all the arguments concerning the propriety of the supplementary signal would not require the FASSIO to share the damages. Sounding this supplementary signal here would be, at best, a passive or minor fault, and would come within the major-minor fault principle. See The City of New York, supra, 147 U.S. 72, 13 S.Ct. at 216, 37 L.Ed. 84; The Great Republic, 23 Wall. 20, 35, 90 U.S. 20, 35, 23 L.Ed. 55 (1874); The Europe, 190 F. 475 (9th Cir. 1911); The Lord O'Neill, 66 F. 77 (4th Cir. 1895); Gilmore & Black Admiralty, 402-04 (1957). The gross faults of the SINCLAIR so flagrantly and heavily outweigh any passive fault on the part of the FASSIO that in this case it is particularly apt to say that "the interests of justice are best served by condemning the more culpable vessel completely." Compania De Maderas De Caibarien, S. A. v. The Queenston Heights, 220 F.2d 120, 123 (5th Cir.), cert. denied, 350 U.S. 824, 76 S.Ct. 52, 100 L.Ed. 736 (1955).
After the close of the evidence, SINCLAIR obtained leave to amend the pre-trial order to reinstate certain claims of fault against the FASSIO. The claimed fault of the FASSIO in failing to ring her fog bell is unsupported by the evidence. I find that she did *713 ring her bell as required by the Rules, 33 U.S.C. § 191(d) (1958), 33 U.S.C.A. § 191(d). I also find that the charge that the FASSIO failed to maintain a proper lookout is unsupported by the evidence. SINCLAIR further contends that the master was at fault for failure to recall the pilot to the bridge when he apprehended danger. No such duty or requirement has been shown by SINCLAIR. At the trial, counsel indicated that this was a question of law. He has failed to support this position. The case cited, Union Shipping & Trading Co. v. United States, 127 F.2d 771, 795 (2d Cir.1942), does not bear out his contention. I find no fault on the part of the master of the FASSIO in this respect.
SINCLAIR's final argument in attempting to shift the responsibility for this collision onto the FASSIO is that the latter was at fault in failing to slack her anchor chain. The record is almost entirely barren of any mention of slackening the anchor chain. And in any event the SINCLAIR has failed to show that there was any impropriety in failing to slack chain under the circumstances of this collision. The anchored vessel, though privileged, has the same duty as any other vessel to avoid collisions when it is within her power to do so. Any duty to pay out more anchor must depend upon the circumstances; i. e., whether the vessel has the time and opportunity to do so. See The Europe, supra, 190 F. at 479; Griffin, Collision § 157 (1949). The cases cited by SINCLAIR are not apposite. The Ciudad de Reus, 185 F. 391 (2d Cir.1911), involved vessels at anchor which were dragging on their chains. The statements there made do not bear on this case. In The Ailsa, 76 F. 868, 874 (S.D.N.Y.1896), aff'd 86 F. 475 (2d Cir.,), cert. denied, La Bourgagne, 172 U.S. 646, 19 S.Ct. 883, 43 L.Ed. 1180 (1898), the court found that the anchored vessel should have slacked chain when the oncoming vessel was sighted visually, and the court was persuaded that there was sufficient time for the collision to have been thereby averted. That is not the case at bar, for here there were but seconds from sighting to collision. The SINCLAIR has not demonstrated, and I am not persuaded, that the collision would have been avoided had the FASSIO slacked chain. The better view is that stated in P. Dougherty Co. v. United States, 168 F.2d 464, 466 (2d Cir.1948), where the court refused to hold that the anchored vessel "when in extremis was under any duty to try such a doubtful expedient." Thus, I find no fault with the FASSIO for failing to slack her chain.
Under the foregoing analysis of this case, it was not necessary to resolve all the disputed questions of timing raised by the parties. For even accepting the timing of the FASSIO's signals as urged by the SINCLAIR, I have found SINCLAIR at fault. However, in order that the record be complete, the court will indicate its findings on the question of timing. I find that the timing of the signals as urged by the FASSIO is correct. The witnesses for the FASSIO were wholly credible and their testimony is accepted. Moreover, it is corroborated by the Engine Bell Book of the SINCLAIR.
Counsel agree that the Bell Book constitutes the best evidence with respect to the SINCLAIR's engine maneuvers and the times at which they were made. That exhibit shows that the order to place the engines on maneuvering speed was received at 9:35; that the first stop order was given at 9:47; that full astern was ordered at 9:47½; and that two emergency full astern orders were given at 9:48. Although it is apparent that the clocks on the SINCLAIR and the clocks on the FASSIO were showing different times, counsel for the SINCLAIR now attempts to adopt the 9:50 collision time of the FASSIO in order to make the SINCLAIR's engine room record conform to SINCLAIR's theory of the accident. But on the SINCLAIR, the collision was recorded by her officers as occurring at 9:47.
The credible testimony is that when SINCLAIR was one mile from the FASSIO, *714 Captain Zustovich sounded the "R" signal. This occurred six minutes before the collision. Three minutes later, a second signal was sounded. This is corroborated by the Bell Book which shows no engine order until 9:47 SINCLAIR time, seconds before the collision. Moreover, if the SINCLAIR timing were analyzed in detail, it would be seen that it was physically impossible for the vessel to traverse the distance from Buoy 42, the point where SINCLAIR claims to have reacted to the FASSIO's signal, in the span of time claimed. What was in the minds of the captain and pilot of the SINCLAIR which motivated them to maneuver as they did will remain forever in the realm of conjecture. But what is clear is that the SINCLAIR was careless and reckless and is solely at fault for the collision with the ANGELA FASSIO.
The final issue for disposition concerns the grounding of the E. W. SINCLAIR. After the collision, the SINCLAIR disengaged by going astern. She dragged along the FASSIO's anchor chain and the FASSIO facilitated her movement by letting out some more anchor chain. When the SINCLAIR was clear she was facing west, toward the channel. She kept backing to the east and then passed up the port side of the FASSIO. After drifting and maneuvering for awhile, the SINCLAIR eventually anchored about 1,000 yards east of the channel and a mile north of where the FASSIO still lay at anchor. There was no obstruction which prevented the SINCLAIR from maneuvering closer to the deeper water near the easterly edge of the channel. The pilot and master were merely concerned with getting clear of the FASSIO. Rather than maneuver toward the channel they chose the shallower water, preferring to go aground rather than risk encountering any channel traffic. The SINCLAIR was subsequently found to have gone aground.
The SINCLAIR claims that the grounding resulted from the collision and that the FASSIO is liable for the damage sustained by the SINCLAIR. The FASSIO claims that the grounding resulted from intervening acts of negligent navigation on the part of the SINCLAIR. She claims that the SINCLAIR should have anchored in deeper water near the channel and that the errors of judgment made in choosing an anchorage in shoal water were unconnected with the slight damage to her fo'c'sle which she sustained in the collision. Since the SINCLAIR has been found solely at fault for the collision and the FASSIO has been found to be without fault, I do not see how the FASSIO can be charged with responsibility for the grounding unless she did something subsequent to the collision which caused the SINCLAIR to go aground. No such argument has been made. Thus, even if the grounding resulted from the collision, the FASSIO cannot be held at fault for the grounding since she was not responsible for the collision. Indeed, whatever damage was sustained by the SINCLAIR due to her grounding was proximately caused by her own fault.
One final matter requires comment. After the trial of this action had been concluded and post-trial briefs submitted, counsel for the SINCLAIR moved to reopen the case to take the testimony of the oiler of the SINCLAIR who was on duty on the day of the collision. Oral argument was heard on the motion and a transcript was prepared as part of the record in this case. The motion to reopen was denied after argument.
Generally, under the admiralty practice, after a hearing is concluded, the case may be reopened and further proof received upon a proper showing and in furtherance of justice. See De Souza v. Dollar S. S. Lines, 292 F. 490 (W.D.Wash.1923). A reopening, however, will not be granted to admit further evidence where there is no showing that competent evidence will be produced. See The Bainbridge, 199 F. 404 (9th Cir.1912). Nor will it be permitted where the moving party might have offered the evidence in his main case but failed to do so. See The Persiana, 158 F. 912 (S.D.N.Y.1907). Oversight is *715 not a ground for reopening a case. See The Francis Wright, 9 Fed.Cas. p. 692 (No. 5044) (S.D.N.Y.1874), aff'd., 105 U.S. 381, 26 L.Ed. 1100 (1881). In order for a case to be reopened for the introduction of new evidence, the evidence must in fact be newly discovered, and must be material to the issues in the case. See Taylor v. Crain, 125 F.Supp. 314 (W.D.Pa.1954), reversed on other grounds, 224 F.2d 237 (3d Cir.1955). "After a case has been closed, whether or not it should be reopened is within the sound discretion of the trial court. Philadelphia & Trenton R. R. Co. v. Stimpson, 14 Pet. 448, 39 U.S. 448, 10 L.Ed. 535. Though it may be permitted in a proper case, it has been called a `pernicious practice'. Missouri Pac. Ry. Co. v. Oleson, 8 Cir., 213 F. 329. Where a party has not shown diligence in procuring a witness, the reopening of the case may be denied. Cincinnati, N. O. & T. Ry. Co. v. Cox, 6 Cir., 143 F. 110." Reconstruction Finance Corp. v. Commercial Union, 123 F.Supp. 748, 750 (S.D.N.Y.1954). The standards for the exercise of the court's discretion are the same under the Admiralty Rules and the Civil Rules. See Neville v. American Barge Line Co., 218 F.2d 190 (3d Cir. 1954); see generally 6 Moore, Federal Practice, 3722-28 (2d ed.).
The motion could have been denied simply on the face of the moving papers. Neither counsel's argument nor his offer of proof presented anything to persuade the court to exercise its discretion. It was not claimed that the prospective witness would give newly discovered evidence. His testimony would have been cumulative at best. Counsel had ample opportunity to avail himself of this witness, either in person or by deposition. I found not even a scintilla of merit to this application and accordingly it was denied.
In conclusion, it is clear that the E. W. SINCLAIR was guilty of two statutory faults. Her speed of 10 knots through the water (11½ knots over the ground) was excessive and a violation of Article 16 of the Inland Rules. 33 U.S.C. § 192 (1958), 33 U.S.C.A. § 192. Her navigation after hearing whistle signals forward of her beam from a vessel whose position was not ascertained was not cautious and constitutes a further violation of Article 16. The SINCLAIR has failed to rebut the presumption of fault which arises out of a collision between a moving vessel and an anchored vessel. The Oregon, supra. Moreover, having twice violated a statutory rule, the E. W. SINCLAIR had the burden of proving not only that her faults did not cause the collision, but that they could not have contributed to causing the collision. The Pennsylvania, supra. She has not sustained this burden. Indeed, her excessive speed and improper maneuvers were the direct cause of the collision and the damage suffered by the ANGELA FASSIO. At best, the SINCLAIR has succeeded in doing no more than raise a slight doubt as to the management of the FASSIO. See The City of New York, supra. I conclude that the FASSIO was not at fault. While the sounding of a supplementary signal by the FASSIO in addition to the prescribed fog bell did not succeed in avoiding the collision, it did not contribute to the collision. Sounding the supplementary signal, although not provided for specifically in the Inland Rules, is not prohibited by the Rules and was not a violation of the Rules. It was a proper exercise of prudent seamanship under the special circumstances prevailing. 33 U.S.C. §§ 212, 221 (1958), 33 U.S.C.A. §§ 212, 221.
Respondent, Sinclair Refining Company is responsible for the damages sustained by the ANGELA FASSIO. Libelant, Villain & Fassio, is not responsible for the damages sustained by the SINCLAIR, either as a result of the collision or the grounding. Villain and Fassio is entitled to a decree dismissing the libel of Sinclair Refining Company with costs. Villain & Fassio is also entitled to a decree on its libel against Sinclair Refining Company for the amount of its damages with interest and costs.
*716 The subject matter of this action and the parties thereto are all within the admiralty jurisdiction of this court. The foregoing opinion shall constitute the Findings of Fact and Conclusions of Law in accordance with Admiralty Rule 46½, 28 U.S.C.A.
Let a decree be entered accordingly.
NOTES
[1] The SINCLAIR was also equipped with radar. Her radar, however had failed after leaving Houston on this trip and was inoperative at the time of the collision. Under the circumstances of this case, no fault is chargeable to the SINCLAIR because her radar was inoperative, nor has the FASSIO urged this as a fault.
With the ever increasing use of radar at sea, it is becoming more and more a factor in cases arising out of collisions. The courts have not yet formulated definite rules requiring the use of radar. But if a vessel is equipped with properly functioning radar, there is an affirmative duty to use it in or near a low visibility area. See Afran Transport Co. v. The Bergechief, 274 F.2d 469, 474 (2d Cir. 1960) and cases cited; White Stack Towing Corp. v. Bethlehem Steel Co., 279 F.2d 419, 423 (4th Cir. 1960); Annot., 82 A.L.R.2d 764 (1962). In Afran Transport, the Court stated its view that the case of The T. J. Hooper, 60 F.2d 737 (2d Cir.), cert. denied, 287 U.S. 662, 53 S.Ct. 220, 77 L.Ed. 571 (1932), "shows which way the wind blows" with respect to the eventual establishment of a rule requiring radar. 274 F.2d at 474. If such a rule were now in existence, the failure of the radar on the SINCLAIR would have been an issue bearing on fault.
[2] Counsel for the FASSIO prepared a chart which compares the entries made in the Engine Bell Book with the entries made in the Deck Bell Book and Deck Log. The chart was admitted into evidence without objection as Exhibit 26. It is herewith reproduced.
E. W. SINCLAIR RECORDS
Comparison of Times Noted
for Particular Entries
Engine Bell Deck Bell Deck
Entry Book Book Log
Arrival Overfalls 0630 0630 0630
Full AheadPilot Reardon aboard 0653 0653 0653
Standby 0935 0937 0937
Engines stop 0947 0944
Full Astern 0947½ 0946 0945
Full Astern 0948
Full Astern 0948
Collision with Angela Fassio 0947 0947
Engines Stop 0950 0950½ 0950½
Full Astern 0951 0954
Full Astern 0952
Stop Engines 0958 0958
Slow Ahead 0958½ 0958
Full Astern 0959 0958½
Stop Engines 1001 1001
Slow Ahead 1001½ 1001½
Full Astern 1002 1002½
Stop Engines 1005 1004½
Slow Ahead 1005½ 1005
Stop 1018 1017½
Let Go Anchor 1019 1019
[3] This is borne out by Captain Dutson's testimony. In response to questions as to whether the signal might have come from a vessel maneuvering to anchor, the captain replied that such a possibility did not occur to him. His interpretation of what he heard was based upon the direction from which the sound came (SM 155-56, 159). Furthermore, if in fact, it was a backing signal which motivated the SINCLAIR to maneuver, those aboard her should also have assumed that a third vessel was present since the Rule provides that the backing signal is to be given when vessels are in sight of each other. 33 U.S.C. § 213 (1958), 33 U.S.C.A. § 213. Although the captain's testimony is somewhat unclear as to whether he thought the signals were addressed to his vessel or not, it is clear that he was galvanized into action by the direction from which he thought the signals came (SM 155-59).
[4] Article 29 of the Inland Rules, 33 U.S.C. § 221, (1958) 33 U.S.C.A. § 221 provides:
"Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case."
[5] Article 27 of the Inland Rules, 33 U.S.C. § 212, (1958) 33 U.S.C.A. § 212, provides:
"In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger."
[6] Yet the master of the SINCLAIR admitted that if he heard an "R" signal he would treat it the same way he would a danger signal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262992/ | 207 F.Supp. 500 (1962)
FARRELL LINES, INCORPORATED, Libelant,
v.
The S/S BIRKENSTEIN, her engines, boilers, tackle, apparel, etc., and The Tug Pauline L. Moran, her tackle, engines, boilers, apparel, etc., and North German Lloyd (Nord. Deutcher Lloyd), Moran Towing and Transportation Company, Inc., and Tug Agnes A. Moran, Inc., Respondents.
NORDDEUTSCHER LLOYD, as owner of the s/s Birkenstein, Impleading Petitioner,
v.
The TUG PAULINE L. MORAN, her engines, boilers, etc., Moran Towing and Transportation Company, Inc., and Tug Agnes A. Moran, Inc., Respondents-Impleaded.
United States District Court S. D. New York.
July 20, 1962.
*501 *502 George W. Sullivan, New York City (Stapleton, Flynn & Lilly), New York City, for libelant.
MacDonald Deming and Charles S. Haight, Jr. (Haight, Gardner, Poor & Havens), New York City, for respondent-impleading petitioner North German Lloyd (Nord. Deutcher Lloyd).
Eugene Underwood and Robert A. Feltner, New York City (Burlingham, Underwood, Barron, Wright & White), New York City, for respondents-impleaded The Tug Pauline L. Moran, Moran Towing and Transportation Company, Inc., and Tug Agnes A. Moran, Inc.
FRIENDLY, Circuit Judge (sitting by designation).
Farrell Lines, Incorporated, owner of a pier at the foot of 33d Street in Brooklyn, N. Y., fronting on Gowanus Bay, brought this libel against the M/V Birkenstein and the tug Pauline L. Moran in rem and North German Lloyd, a West German corporation, hereafter NGL, owner and operator of the Birkenstein, and Tug Agnes A. Moran, Inc., and Moran Towing and Transportation Company, Inc., New York corporations, the former being the owner and the latter the operator of the Pauline L. Moran, in personam. The libel sought recovery for damages caused to the pier by the Birkenstein while the latter was being maneuvered by a Moran pilot with the assistance of the Pauline during the afternoon of February 23, 1961. The Birkenstein and North German Lloyd denied fault but also asserted that if there was any, it lay at the door of the Moran defendants whom they impleaded. As might be expected, the latter claimed innocence on their own part and fault on that of the Birkenstein. The trial was expedited by the cooperation of the proctors, and their briefs have been pointed and helpful.
At the opening of the trial proctors for the three interests announced a settlement whereby Farrell Lines released all the defendants in consideration of $42,500, paid by NGL without prejudice to the Court's ultimate determination of its rights against the Moran defendants; Moran agreed to the reasonableness of the amount. Since the Birkenstein suffered no physical damage, the sole issue became where the cost of this settlement and of another compromise reached by NGL, relating to a personal injury claimant on the pier, should ultimately fall.
There is less disagreement as to the facts than is usual in a collision case probably due to the circumstance that only one flotilla was in motion. At this point I make the following findings; I shall make additional ones in the course of the subsequent discussion:
1. The Birkenstein is a motor vessel of 5,798 gross tons, 3,350 net tons, 498'1" in length, and 60'4" in extreme breadth. She has a single righthanded screw. Her slowest speed is 5.3 knots. She is equipped with a Raytheon 10-centimeter Model 1402, 16-inch scope, radar. Her draft on the day in question was 15'6" forward and 17'6" aft.
2. The Birkenstein is one of a number of freighters operated by NGL into New York harbor. She and the other NGL freighters regularly dock at Prospect Terminal (also called Continental Piers) near the upper end of Gowanus Creek in Brooklyn.
3. The entrance to Gowanus Creek is through Gowanus Bay, which lies northeast of the Bay Ridge Channel. Gowanus Bay is some 750 yards long from 35th Street to 27th Street; Gowanus Creek, from 27th Street to the Prospect Terminal, is some 840 yards long. Between the 35th St. pier and Erie Basin, Gowanus Bay is about 400 yards wide; at the 33d St. pier it narrows to about 300 yards. Gowanus Creek is about 100 yards wide.
4. Moran Towing and Transportation Co., Inc. and NGL were parties to a Towing Contract. Under this contract, a *503 printed form, Moran agreed "to furnish tugs for, and to attend to, all the towage requirements at the Port of New York" of all NGL vessels, at stipulated rates per tug for base periods and for additional time. The contract contained the following clause:
"PILOTAGEWhen the captain of any tug furnished to or engaged in the service of assisting a vessel which is making use of her own propelling power, goes on board such vessel, or any other licensed pilot goes on board such vessel, it is understood and agreed that such tug captain or licensed pilot becomes the servant of the owner of the vessel assisted in respect to the giving of orders to any of the tugs furnished to or engaged in the assisting service, and in respect to the handling of such vessel, and neither those furnishing the tugs and/or pilot, nor the tugs, their owners, agents, charterers, operators or managers shall be liable for any damage resulting therefrom."
5. The practice of the parties was that NGL's New York agent, United States Navigation Co., would advise Moran of the name of an arriving vessel, her estimated arrival time, and the pier to which she was to proceed. NGL did not specify the number or characteristics of the tugs to be furnished. The practice was for Moran to furnish at least two tugs, sometimes three. There was no general practice that the tugs so furnished would be equipped with radar. Some 71% of Moran's New York harbor tugs have radar; all have radio-telephone. The radar generally used on Moran tugs is the RMCA Model CR 103 3-centimeter set.
6. On February 22, 1961, NGL's New York agent advised Moran that the Birkenstein was expected at Ambrose Light at 13:00 on the following day, would proceed to Quarantine, and would then dock at Pier 3, Prospect Terminal.
7. The Birkenstein anchored at Quarantine on February 23, 1961, at 14:50 and departed for the inner harbor at 16:10. There is some variation in the estimates of visibility at the time of her departure from Quarantine; it seems likely that this was approximately one mile probably less rather than more.
8. As the Birkenstein proceeded up the harbor, visibility worsened. Chief Officer Weisskopf testified that as she passed Anchorage 21-B at the entrance to Bay Ridge Channel, visibility was 400 meters. By the time the Birkenstein came opposite Bush Terminal, visibility had so decreased that the officers on her bridge could hardly see the bow 250' off. During the passage from Quarantine the Birkenstein was using her radar; this was functioning perfectly.
9. About 15:30 Moran's despatcher instructed the Pauline L. Moran that she was to meet the Birkenstein if the vessel left Quarantine. About 17:00 the despatcher advised that he thought the Birkenstein had left Quarantine and that the Pauline was to go out and get her and bring her into Prospect Terminal. He also advised that the James Moran was clearing the berth and that when the James was through with this, it would come out and help the Pauline dock the Birkenstein.
10. The Pauline L. Moran is a Diesel-electric powered tug with 1200 horsepower. She is 100.2' long; her gross tonnage is 211. She had no radar, as was apparent by inspection from the bridge of the Birkenstein. Her crew consisted of captain Cray, chief officer Smith, a deckhand, a cook, an engineer, and an oiler.
11. The Pauline had proceeded to a position off Pier 4, Bush Terminal Docks, when she heard a whistle which she thought came from the Birkenstein. The Pauline went out to find the vessel and did, first seeing her at a distance of 150' to 200'. The Pauline landed alongside to starboard, put a line up and put Cray aboard. This was at 17:16. Before leaving, Cray ordered Smith to put a line up in the first chock forward of the Birkenstein's bridge and to await further orders. The Pauline's engines were stopped. Smith took over command of *504 the Pauline and the deckhand manned the lines. No one was posted on the bow.
12. Cray went immediately to the bridge of the Birkenstein. The others there were Captain Conrad, the Sandy Hook pilot, chief officer Weisskopf, officers' assistant Koepke at the engine telegraph, second officer Stindt at the radar, a helmsman, and a bridge lookout. Third officer Goldenstein, carpenter Meyer and another lookout were on the bow.
13. There are some differences, although not real contradictions, in the testimony as to the conversation when Cray reached the bridge. Conrad recalled only telling Cray the ship's draft, the range at which the radar was set, that the engines were stopped, "and where we intended to go", and asking which pier was ready. Cray's recollection was that he and Conrad "discussed the weather conditions, advisability of proceeding further, or any such action as he would care to take I would be glad to assist him in doing so"; Cray said he "only outlined the possibilities". He "made no recommendation" since "any action would have been hazardous". Cray testified that the master made the decision to proceed. Although Cray's version may be somewhat on the pat side, I see no sufficient reason to disbelieve him; indeed, the master's own testimony suggests that he then had no thought of doing anything other than to proceed to the pier unless someone strongly advised against it.
14. Cray's first engine order on the Birkenstein, at 17:20, was "dead slow ahead." His course was along Bay Ridge Channel toward the entrance to Gowanus Bay and then into the Bay; entering the Bay would require a change from 35° 40° to 55° 65°.
15. Shortly before Cray boarded, Stindt had put the Birkenstein's radar on the 1-mile range. For a time the radar continued to work well; Stindt made reports to the master and to Cray. But "the more we came to Gowanus Channel, the more the narrows came together * * *. It was everything filled, we couldn't see the entrance." Such a loss of useful functioning by a Model 1402 radar when a vessel is entering a narrow body of water with metal buildings on either side is not uncommon; this is known as the side-lobing effect. To attempt to overcome that effect it is desirable to reduce the volume or "master-gain" and also to turn the STC gain control counter-clockwise. Admittedly Stindt did the former. But he testified on deposition that he "increased the S.T.C. gain", and it is disputed whether by this he meant that he turned the control counter-clockwise, as he should have done, or clockwise. If it were necessary to resolve this, I would find, reading the entire testimony in context, that he meant he had acted to decrease sensitivity of the receiver and thus had turned the control counter-clockwise. Such adjustments of the controls are not uniformly successful even when correctly performed; Stindt's did not succeed.
16. Stindt testified on direct examination that he reported the loss of a useful radar picture to the master and to Cray "at once". However, I read his cross-examination to say that the report was made only after his efforts to improve the picture by adjusting the controls had failed, a span of perhaps two minutes.
17. As soon as Stindt's report was received, the engines were ordered stopped. This was at 17:24. Cray and Conrad looked at the radar screen; both found that the channel entrance could not be distinguished. Conrad refused to let the Birkenstein go further into Gowanus and wanted to drop anchor at the nearest safe place; Cray said that there was too much congestion to anchor where the ship lay and that she would have to go further out. Conrad placed this conversation immediately before the failure of the radar; I find it more consistent with the known facts that it occurred immediately thereafter.
18. There is a dispute as to what, if any, helm orders were given. Conrad testified that Cray, believing the Birkenstein must first go to starboard in order to turn, ordered a starboard rudder, and that the helmsman answered, announcing every 10° of the turn, until a time came *505 when Cray ordered the helm to port. Weisskopf corroborated this to the extent of testifying that he heard the helmsman calling off the degrees "70, 80 degrees, and 90 degrees", that he went into the wheelhouse to see what was going on, and that he protested to the captain. Cray said his last order to the helm, prior to the time with which we are now dealing, was to come from 50° or 55° to starboard to 65°. In view of conclusions that I have reached on other aspects of the case, it is unnecessary for me to determine whether, as NGL alleges, Cray wrongly ordered the rudder hard to starboard, whether, as Moran alleges, the helmsman wrongly took such action on his own, possibly misunderstanding Cray either of which would constitute a fault attributable to the Birkenstein, or whether the rudder was not put so far to starboard at all. What is clear is that the vessel's head dropped off to starboard, a phenomenon explicable by her loss of steerageway.
19. Immediately after the Birkenstein's engines were stopped, Cray ran over to the starboard wing of the bridge, ordered Smith to shift the Pauline forward and make fast, and then directed the Pauline to "come ahead half a speed, then full speed ahead".
20. About this time third mate Goldenstein called from the bow of the Birkenstein, "There is something approaching the ship. It looks like a roof." The engines were ordered half astern, at 17:27, and slow astern at 17:27½, and were stopped at 17:28. Meanwhile, at 17:27 the collision with the pier occurred. Cray testified that at some time he had ordered the starboard anchor dropped whether such an order was given and, if so, whether it was before or after collision, cannot and, on the view I take of the case, need not be determined. If it was given, it was not transmitted. The carpenter, on the bow of the Birkenstein, acting on his own, let go of the starboard anchor. This fell on the pier.
As noted at the outset, the Birkenstein and her owner and operator, proclaiming their own innocence, level numerous claims of fault against the Pauline and her owner and operator, whereas the latter respond in kind. The parties are also in controversy whether if both sets of interests were faulted, the share of the Moran interests would be 75% (as NGL contends), 33 1/3 % (as Moran contends), or 50% (for which neither contends). The latter issue, interesting as it is, does not arise unless Moran is found to be liable to the Birkenstein and NGL; if not, the loss, paid by the Birkenstein, doubtless because of the "presumption" of negligence when a moving ship collides with a shore installation, Wilmington Ry. Bridge Co. v. Franco-Ottoman Shipping Co., 259 F. 166, 168 (4 Cir.1919), must lie where it has fallen. Although the discussion uses terms such as "fault" and "negligence" as to Moran, these are convenient shorthand for "breach of warranty of good workmanship" the essence of NGL's claim, as its brief makes clear.
NGL levels the following specifications of fault against Moran, all of which are alleged to fall outside the pilotage clause, the validity of which NGL does not dispute:
"1. Moran furnished only one tug to assist the Birkenstein into Gowanus Bay, and failed to call for the assistance of a helper tug when its need was apparent.
"2. Moran improperly positioned the Pauline L. Moran alongside the Birkenstein.
"3. Moran failed to recommend to the master of the Birkenstein that the passage of Gowanus Bay and Creek should not be attempted under the circumstances prevailing.
"4. Moran was at fault, and the tug Pauline L. Moran unseaworthy, because she lacked radar.
"5. The tug Pauline L. Moran had no lookout."
Considering items 1 and 4 to be the most serious, I shall first deal with items 2, 3 and 5.
Improper positioning of the Pauline.
*506 NGL's claim is that, before boarding the Birkenstein, Cray should have ordered the Pauline to the Birkenstein's starboard bow. Assuming without deciding that an erroneous order given the tug before boarding the assisted vessel is outside the pilotage clause, the claim assumes a degree of prescience that Cray was not required to attain. Of course, if he had known before boarding that the first service to be required of the tug would be to turn the Birkenstein sharply to port, he should have placed the Pauline on the starboard bow, where she could best do this as, indeed, he conceded. However, he could not know at that time what course of action would be decided. The Pauline had come amidships to put Cray aboard. In that position she could be used to push the Birkenstein away from the piers, as well as to kill headway or for backing, and she was in the best possible position for receiving orders or for communicating with the Moran office and other Moran tugs. Even if there was undue delay by Cray in later ordering the Pauline to the starboard bow, which I do not find, that would be within the pilotage clause.
Failure to recommend against proceeding.
It does seem to a layman that planning to sail the Birkenstein nearly a mile up a narrow bay and channel, with visibility only some 200', was a hazardous business. This view is reinforced by the frank admission of NGL's radar expert, in answer to a question from the Court, that "the average officer would realize that with this type radar on that ship that he is pushing it to the very limit of his [sic] capabilities in that spot, and if he is able to use it, he is fortunate." On the other hand, Moran cannot be blamed for anything done before it became involved, and by that time the Birkenstein was in a position where any course of action had its hazards. Staying where she was or a return to Anchorage 21B would have involved the danger of collision with other vessels, whose presence in the area was attested by the blowing of fog signals. If she anchored where she was, there was no telling when the fog would lift. Proceeding to Anchorage 21B would have required a 180° turn or a course passing Erie Basin, either of which involved distances greater than to the Prospect Pier although neither entailed the navigational hazards of a narrow channel and the danger of loss of useful pictures on the radar screen. While, particularly with the inestimable benefit of hindsight, going to the Anchorage would seem to have been the wiser course, its superiority has not been shown to be so evident that Cray can be found to have been negligent in not making a positive recommendation to the master, who was quite familiar with the topography of Gowanus Bay and Creek and the traffic likely to be encountered there and had better knowledge of the reliability of the ship's radar than Cray.
Moreover, if Cray was at fault as claimed, the fault was within the pilotage clause. NGL does not dispute this would have been so if visibility had been, say, 500' when Cray boarded the Birkenstein but had suddenly decreased to 200' while he was getting to the bridge and talking things over with the master; its claim is that under the circumstances here he should have made up his mind before going "on board such vessel." This places the duty of decision too early; there was no reason why Cray should have formulated a fixed view until he had all the facts. Moreover, his failure to formulate a view was without consequence; what mattered was what he did when he boarded the Birkenstein. If Cray then neglected to make sound recommendations, it was a failure, after he went on board, "in respect to the handling of such vessel," and thus within the pilotage clause.
Lack of a lookout by the Pauline.
NGL's contention as to lack of a lookout on the Pauline fails to take proper account of the varying capacities in which tugs serve. When a tug is operating independently, as in The Supply No. 4, 109 F.2d 101 (2 Cir.1940), and Moran Towing & Transp. Co. v. United States, *507 80 F.Supp. 623, 629 (S.D.N.Y.1948), she may well have the same duty to maintain a lookout as any other vessel. When she is in charge of a flotilla of barges, she is bound to maintain a lookout where he can look out, whether on the tug or on one or more of the barges if they are obscuring the view; that is the lesson of The Madison, 250 F. 850 (2 Cir.1918); Martin Marine Transp. Co. v. Jakobson & Peterson, Inc., 135 F.2d 325 (2 Cir. 1943); and Gulf Oil Corp. v. The Socony No. 16, 162 F.2d 869, 870 (2 Cir.1947). But NGL has cited no decision that a tug which is merely assisting a vessel in docking must maintain a lookout; in such cases the responsibility would seem to lie on the assisted vessel, which in this instance is the leader of the flotilla just as the tug is when it has barges in tow. With Cray on the Birkenstein, Smith in the wheelhouse and the deckhand at the lines, none of the above-deck crew of the Pauline was available to act as a lookout. Yet there is no contention, as there was in Moran Towing & Transp. Co. v. United States, supra, see 46 U.S.C. A. § 223, that the Pauline was under-manned; Smith's testimony that the Pauline's was the normal crew for a tug was uncontradicted. Hence I do not reach the issue whether, if the absence of a lookout on the Pauline had been a fault, she could meet the heavy burden of negating the possibility of a causal relation, The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874).
Failure to furnish a second tug.
This contention has several facets; although certain of them seem at first to be plausible, analysis shows each to have a fatal flaw.
As previously indicated, it was undisputed that the Birkenstein was never docked with less than two tugs and sometimes with three. It was equally undisputed that the tugs did not normally reach the Birkenstein at the same time. The evidence is not so clear as to where the second tug would join. Captain Conrad testified that the second tug usually arrived "near the entrance of Gowanus Channel * * * sometimes inside, sometimes outside," and that he inquired as to its non-arrival shortly before the Birkenstein's radar picture became useless. Weisskopf placed the usual rendezvous "between Bay Ridge and the entrance to the Gowanus Channel". Cray testified that normally the second tug would join "in the mouth of Gowanus Channel"outside if the second tug had been working outside Gowanus, inside if she had been working in the channel. There is also some dispute what "entrance" and "mouth" mean. In answer to a question from the Court, Cray identified the "mouth" as an elliptical area whose horizontal axis would run from Erie Basin to the 33d Street pier. Conrad placed the "entrance" off the 35th Street pier. The uncertainty may well be due to the fact that the second tug was not thought of primarily as an aid to navigation but rather as an aid to docking. Cray testified "two tugs are used to dock the Birkenstein because of the slip and piers that they use. It is a very congested area. The piers are narrow; there are always lots of barges; quite a bit of traffic in Gowanus Canal, and it expedites the job to have a second tug available."
NGL contends, relying on Publicker Industries, Inc. v. Tugboat Neptune Co., 171 F.2d 48, 49 ( 3 Cir.1948); American South African Line, Inc. v. Sheridan & Company, Inc., 1936 A.M.C. 287 (E.D. Pa.1935); Gypsum Queen v. Tug Peerless, 1953 A.M.C. 2071 (E.D.Va.1953); and People of State of California v. The Jules Fribourg, 140 F.Supp. 333 (N.D. Calif.1956), that undertaking a docking operation without providing the number of tugs needed for reasonable safety in the light of foreseeable hazards is a breach of the warranty of workmanlike operation implied in the towage contract and falls outside the pilotage clause. Moran answers that there was no evidence that under normal conditions two tugs were needed to assist the Birkenstein in navigating a bay 300 yards wide, or even a channel which, at its narrowest point, was five times as wide as her breadth. I accept that answer so far *508 it it goes under normal conditions, the need for a second tug, as Cray testified, was rather for the docking at the pier, from which the Birkenstein was still far away, and certainly not for the navigation of the Bay where the accident occurred.
NGL responds that, whatever the nature of the need, there was a custom or practice with respect to a second tug, which had become in effect a term of the contract and on which it justifiably relied. However, NGL has failed to show, by a preponderance of evidence, a custom that the second tug would rendezvous at least as far to the southwest as the area opposite the 35th St. pier; I accept Cray's testimony, which, indeed, is rather corroborated by Conrad's, that the practice was not that well defined. Moreover, the Birkenstein had not yet reached 35th St. at 17:24 when her engines were stopped. Stindt testified she was still below 35th St. at the time, and this checks with Conrad's estimate of the place where Cray boarded and the undisputed facts of speed and time. Neither can Moran be held liable, on a similar theory, on the sole basis of the James' failure to appear during the three minutes between the stopping of the engines and the collision; the Birkenstein was still below the northeastern rim of the "ellipse" within which, on Cray's testimony, the rendezvous commonly took place.
Although I have accepted Moran's position that its obligation of workmanlike performance did not require it to furnish a second tug simply for navigation of Gowanus Bay under normal conditions, conditions on February 23 were not normal, as Moran knew. Before his second conversation with the Pauline, about 17:00, Moran's despatcher was aware that visibility at Quarantine was only 1/10th of a mile and Cray, on the Pauline, knew just how bad the weather was in Gowanus Bay. A second tug would thus have surely been a desirable aid to the navigation of the Birkenstein through the Bay under the circumstances. There is thus force in another facet of NGL's claim, namely, that under the particular circumstances of February 23, Moran ought to have provided a second tug at a time sufficiently preceding the accident to have prevented it, even though this involved greater effort than was required under normal conditions. However, particularly because of the pilotage clause, it is not enough to say that "Moran" should have done something different than it did; it is necessary to determine who in "Moran" failed and when.
One possible basis of liability would be that Moran's despatcher should have instructed Cray not to undertake the navigation of Gowanus Bay under the conditions prevailing without having the James Moran actually at hand or at least being certain that she or some other tug, in addition to the Pauline, would be available by the time the Birkenstein reached 35th Street, where the Bay narrows and radar difficulties might be anticipated. It is now easy to see that things would have been better if the despatcher had urged greater expedition by the James or, if that was not possible, had summoned another tug, which was not engaged in clearing the slip as the James had to be, or had ordered Cray not to go beyond a certain point without a second tug although, as previously indicated, this last course, too, had its dangers. However, the Towing Contract does not indicate by its terms that Moran undertook so heavy an obligation and the record is barren of evidence of any custom or practice that the despatcher, or Moran's head office generally, assumed, or was required by express or implied warranty to assume, responsibility for such detailed supervision of docking operations of which supposedly competent masters and tug captains were in charge.
A more plausible variation is that Cray, before leaving the Pauline, ought to have bound himself not to proceed, or not to proceed beyond a certain point, without a second tug, or at least ought to have done something more to get the James on the scene than merely to rely on the despatcher's report, made around 17:00, that the James would come down when she had finished clearing the slip. I have little difficulty in concluding that *509 Cray was not negligent in failing to bind himself as to his course of action before boarding the Birkenstein, even if such a non-feasance be assumed to fall outside the pilotage clause. Nothing would have been gained by self-preclusion at so early a stage; it was better to postpone decision until Cray could talk things over with the master and others on board moreover, as indicated above, what mattered was what Cray did, not what he had decided or failed to decide to do. The close question relates to his failure to do something about the James while the radio-telephone on the Pauline was so readily at hand. But here again one must steel one's self against the temptation to substitute hindsight "in the peace of a quiet chamber", Hellenic Lines, Ltd. v. Brown & Williamson Tobacco Corp., 277 F.2d 9, 13 (4 Cir.), cert. denied, 364 U.S. 879, 81 S.Ct. 168, 5 L.Ed.2d 102 (1960), for the prospect facing a tug captain in Bay Ridge Channel on a foggy winter afternoon. Cray had no reason to doubt that the James would appear where second tugs normally had in the past; when he left the Pauline, he did not know what course of action the Birkenstein would take; conditions, although bad, were not so bad that the second tug was needed immediately and in all events; and the Pauline's radio-telephone could still be used, with only a few seconds' delay, by oral communication between the Birkenstein's bridge and Smith. Doubtless Cray thought the best single thing to do was to get to the Birkenstein's bridge just as fast as he could; apart from the problem of causation discussed below, I cannot say that was so wrong a decision as to constitute a breach of Moran's warranty of good workmanship.
There remains the contention that, once Cray had boarded the Birkenstein, he should still have made certain of the availability of the James before proceeding up Gowanus Bay or, not having done that, should have stopped the Birkenstein when a second tug did not appear. The alternative contention is rather clearly lacking in force. In fact, the Birkenstein was stopped at the channel mouth; in any event negligent failure to stop her sooner would be within the pilotage clause. The primary contention has greater merit. We are dealing now with a time when Cray knew that the navigation of the channel was to be attempted, and he ought to have known the presence of a second tug would help. Still the case is not quite like People of State of California v. The Jules Fribourg, where the pilot, misjudging the strength of the tide, wholly failed to order a second tug which he admitted he would have ordered if he had judged aright. The James was not that essential and Cray thought she was coming in any event. Moreover, there is no proof that a telephone call would have gotten the James or any other tug to the scene soon enough to help; the record is remarkably vague with respect to the orders to and the movements of the James. Hence, in order to meet this problem of causation, NGL's argument has to be not merely that Cray should have called for help but that he should not have allowed the Birkenstein to proceed beyond a certain point until he could be certain the James or some other tug would meet her outside the channel mouth. But even if we should assume arguendo that Cray's failure to do something more about getting a second tug was outside the pilotage clause even though the failure occurred while he was on the Birkenstein, the accident was caused not by that failure but by his decision to allow the Birkenstein to go ahead without being sure another tug would meet her outside the mouth, and this constitutes action "in respect to the handling of such vessel" within the pilotage clause. If the alternative ground of decision in the Fribourg case, 140 F.Supp. at 340, should be to the contrary, and I am not at all sure that it is, I would not be able to agree with it.
It may be said that the foregoing is equivalent to holding that although Moran's conduct may have been negligent under the circumstances when viewed with ordinary vision, it ceases to be so when examined under a microscope. The *510 answer is that Moran's over-all obligations under the Towing Contract were to assist the docking, not to manage it; that, accordingly, if something more should have been done than was done, the failure must have been by some person; and that when I examine the behavior of the various persons, as the pilotage clause requires, I find that NGL's case against Moran hinges on a fault by Cray proceeding without assurance of the second tug that comes within it.
Lack of radar on the Pauline.
NGL's final claim is that the Pauline was unfit for her assignment because she was not equipped with radar. Much of the expert testimony was directed to whether, as claimed by NGL, there is an essential difference in types of radar equipmentwith the Raytheon Model 1402 10-centimeter set superior for work at sea and the RMCA Model CR 103 3-centimeter set superior at close range, so that the radar of an ocean going vessel requires supplementation by a tug's. I find this particular contention not to have been established.
However, that does not end the matter. Just as two eyes are better than one, so are two radars, particularly in view of the evidence that two radars of the same model, both operated properly, might respond differently under the same conditions. Of course, this is necessarily subject to the qualification that the second radar would not be working under conditions that would render it useless. Moran contended exactly such would be the case with a radar in proximity to the side of a steel ship. Although the evidence showed that this would be a seriously impairing factor, it did not go to the point of excluding all possibility of usefulness in radar on a tug assisting in the docking of a ship.
Although I thus cannot find that a radar on the Pauline might not have helped, the undoubted limitation on the usefulness of a tug's radar under such conditions greatly impairs the case that there is a duty to have one. NGL relies on Judge Learned Hand's famous opinion in The T. J. Hooper, 60 F.2d 737, 740 (2 Cir.), cert. denied, Eastern Transportation Co. v. Northern Barge Corp., 287 U.S. 662, 53 S.Ct. 220, 77 L.Ed. 571 (1932), holding tugs liable to their tow for a failure to carry radio receiving sets, although "there was no custom at all as to receiving sets; some had them, some did not; the most that can be urged is that they had not yet become general," and on Judge Medina's prophecy, in Afran Transport Co. v. The Bergechief, 274 F.2d 469, 474 (2 Cir.1960), "that a rule requiring radar, subject to some limitations and qualifications, will sooner or later be formulated." If this were a case in which the Pauline on a journey of her own down Gowanus Bay had damaged another ship or a shore installation, or, as in The T. J. Hooper, had lost barges she had in tow, and lack of radar was proved to have been a cause, she might well be faulted on that score; such a case would indeed remind of The T. J. Hooper, in which Judge Hand imposed a standard of conduct beyond any practice that had become truly general where it was evident that the practice ought to become so. See also Mr. Justice Holmes in Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 47 L.Ed. 905 (1903). However, in such cases, the tug's radar would have been the only eye available. A duty to supply an eye does not inevitably carry with it a duty to supply what would here be a second one, especially when the second would have only limited usefulness and would be needed only in the abnormal event that the dominant vessel got into a position where her own eye became useless and the second eye might also be. Hence any obligation to equip the Pauline with radar did not attach to her in the role of an assisting tug; if Moran preferred to avoid the added cost of radar for a vessel which was largely engaged in that activity and take its chances on liability for lack of one when she was not, that was a choice Moran was free to make.
It is true that, if the Pauline had been carrying a radar for purposes of navigation when operating independently or towing barges, the radar would *511 have been on hand on the fateful afternoon. But that is not decisive for two reasons, either sufficient. One is the serious doubt whether a radar on the Pauline would have served any really useful purpose unless another crew member had been on hand to scan it. Here, as on the issue as to a lookout, account must be taken of the limited personnel complement of a harbor tug and of the reduction inevitably effected in that when the tug master boards the assisted vessel a factor also not without relevance to the question of duty discussed above. To be sure the evidence does not exclude the possibility that a radar could be placed where the chief officer could view it at times when he was awaiting an order, but NGL had the burden of showing that this was a feasible procedure and did not sustain it. Yet I am unwilling to find that an assisting tug must not only have a radar but an extra crew member to man it as well. The other reason is the established proposition that breach of duty to one class of persons does not give rise to a claim by another class even though performance of the duty to the first class would have prevented the loss suffered by the second. Gorris v. Scott, L.R. 9 Exch. 125 (1874); Garland v. Boston & M. R. R., 76 N.H. 556, 86 A. 141, 46 L.R.A.,N.S., 338 (1913); Lang v. New York Central R. Co., 255 U.S. 455, 41 S.Ct. 381, 65 L.Ed. 729 (1921); Irwin Savings & Trust Co. v. Pennsylvania R. R., 349 Pa. 278, 37 A.2d 432 (1944); American Law Institute, Restatement of Torts 2d, Tentative Draft No. 4, § 281(b) & comment c. Although examples of this rule are generally in tort, the same principles must be a fortiori applicable when, as here, the claim sounds in contract and the claimant could so easily have made its own law by stipulating for whatever aids to safety it thought needed.
Accordingly the claims of the Birkenstein and NGL for indemnity for amounts paid or payable as a result of the accident are dismissed. If a form of decree cannot be agreed, let it be settled on notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263198/ | 31 Cal.App.4th 1387 (1995)
37 Cal. Rptr.2d 765
THE PEOPLE, Plaintiff and Respondent,
v.
THEODORE FLYNN, Defendant and Appellant.
Docket No. B075000.
Court of Appeals of California, Second District, Division Four.
January 31, 1995.
*1389 COUNSEL
Patricia G. Bell, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Jaime L. Fuster and Raymund F. Robles, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VOGEL (C.S.), J.
Theodore Flynn appeals from the judgment entered following a jury trial that resulted in his conviction of assault with a deadly *1390 weapon (Pen. Code, § 245, subd. (a)(1))[1] and court findings that he had suffered three prior serious felony convictions (§ 667, subd. (a)). He was sentenced to prison for a total term of eighteen years, comprised of a three-year middle term on his assault conviction, plus three consecutive five-year terms for the prior serious felony enhancements.
ISSUE PRESENTED
Appellant contends the three prior serious felony enhancements must be stricken because the current offense is not a serious felony under section 1192.7, subdivision (c)(8). We find the trial court properly found the current offense to be a serious felony under subdivision (c)(23) of that section and affirm the judgment.
FACTUAL STATEMENT
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 [26 Cal. Rptr.2d 23, 864 P.2d 103]), the evidence established on August 8, 1992, in the early afternoon, Chinh Tran was standing in the cashier's line at the Arco gas station near East Imperial Highway when appellant approached and asked for money. Tran, who did not know appellant, replied he had no money. When Tran returned to his car, another man was pumping gas for him. Tran sat in the driver's seat and looked for change to give the man. As Tran looked towards his passenger, Thang Van Pham, appellant stabbed Tran on his left side towards the back of his rib cage. Pham saw appellant pull out the knife after the stabbing. Tran turned and saw appellant holding a knife about three feet away. The police recovered a small folding knife from appellant. Tran was in the hospital for three days.
Appellant presented no affirmative defense.
DISCUSSION
1. Serious Felony Established Under Section 1192.7, Subdivision (c)(23)
(1) Appellant contends the trial court found the serious felony to be established under subdivision (c)(8) of section 1192.7, and that such finding was precluded by the lack of a true finding on the great bodily injury (GBI) allegation (§ 12022.7). We find no merit to his contention.
The amended information alleged appellant personally inflicted great bodily injury within the meaning of section 12022.7, which caused the *1391 charged offense to be a serious felony within the meaning of subdivision (c)(8) of section 1192.7. The jury found this allegation to be not true. A true finding in this regard, however, is not a prerequisite to a determination that the charged offense is a serious felony under section 1192.7.
Section 12022.7 pertains to the establishment of the GBI enhancement. It is subdivision (c) of section 1192.7 which lists the categories of "serious felonies" for the purpose of imposing a prior serious felony enhancement under section 667, subdivision (a). (People v. Equarte (1986) 42 Cal.3d 456, 461 [229 Cal. Rptr. 116, 722 P.2d 890].) These two provisions overlap to the extent subdivision (c)(8) of section 1192.7 lists a "`serious felony'" as "any [] felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, ..." Accordingly, a finding of GBI under section 12022.7 necessarily renders the offense a serious felony under subdivision (c)(8) of section 1192.7.
However, the converse is not true. The absence of a finding under section 12022.7 does not mean the charged offense is not a serious felony under subdivision (c) of section 1192.7. The charged offense may still be a serious felony if the prosecution proves the existence of any of the other categories in subdivision (c). Equarte held the trial court was entitled to find the charged offense to be a serious felony under subdivision (c)(23) of section 1192.7, even though that subdivision was not alleged in the information, where the prosecution proved the defendant's "personal use" of such a weapon. (People v. Equarte, supra, 42 Cal.3d at pp. 459, 460, 465, 467.)
Moreover, the trial court was entitled to base its finding of a serious felony on the evidence presented at trial and was not bound by the jury's not true finding on the GBI allegation because the issue of whether appellant suffered the prior serious felony convictions was bifurcated from the trial on the charged offense and the GBI allegation.[2] (People v. Equarte, supra, 42 Cal.3d at p. 467.)
Contrary to appellant's assertion, the trial court did not base its finding of a serious felony on subdivision (c)(8) of section 1192.7. It did refer to that *1392 subdivision. However, viewed in context, it is clear that the court found the offense, instead, to be a serious felony under subdivision (c)(23) ("any felony in which the defendant personally used a dangerous or deadly weapon"). After noting the jury made no GBI finding, the court found a serious felony based on the fact appellant used a knife to injure the victim. It did not address whether the victim suffered great bodily injury or serious injury as the result of the stabbing.
Ample evidence presented at trial supports this finding. (People v. Elmore (1990) 225 Cal. App.3d 953, 957 [275 Cal. Rptr. 315].) An eyewitness saw appellant pull out the knife after the stabbing. The victim saw appellant holding the knife immediately after the stabbing, and a knife was found on appellant when he was apprehended. There was no evidence to suggest anyone other than appellant wielded the knife. (See People v. Equarte, supra, 42 Cal.3d at pp. 460, 467.) Accordingly, to invalidate the finding on the basis the court inadvertently referred to subdivision (c)(8) of section 1192.7 instead of subdivision (c)(23) would improperly elevate form over substance. (People v. Thomas (1987) 43 Cal.3d 818, 830-831 [239 Cal. Rptr. 307, 740 P.2d 419]; see also People v. Menius (1994) 25 Cal. App.4th 1290, 1293-1295 [31 Cal. Rptr.2d 15] [obvious inadvertent misstatement by trial court as to wrong subdivision of applicable statute does not vitiate effort to impose enhancement]; People v. Scott (1994) 229 Cal. App.3d 707, 715-716 [280 Cal. Rptr. 274] [even a reference to a wrong statute may be immaterial]; People v. Schultz (1965) 238 Cal. App.2d 804, 808 [48 Cal. Rptr. 328] [inadvertent misstatement reversing order of guilty and innocence verdicts].)
2. Absence of Subdivision (c)(23) Allegation Not Denial of Due Process
(2a) Appellant also contends a serious felony finding under subdivision (c)(23) of section 1192.7 is precluded for the reason the information expressly alleged subdivision (c)(8) and no mention was made of subdivision (c)(23). We disagree. The absence of any reference to that particular subdivision is not controlling. Equarte expressly upheld a serious felony finding under subdivision (c)(23) although the information contained no allegation that the defendant had personally used a dangerous or deadly weapon in the charged offense. (People v. Equarte, supra, 42 Cal.3d at pp. 459, 467.)
We are cognizant that Equarte did not involve a reference to any specific provision of section 1192.7, subdivision (c), and that it based its holding on the fact that the defendant's failure to demur waived any uncertainty concerning which specific category under subdivision (c) of section 1192.7 the prosecution was relying upon to prove the serious felony. (42 Cal.3d at pp. 459, 466-467.) We also acknowledge Equarte stated: "We do not suggest *1393 that where an information charges that an offense qualifies as a serious felony by virtue of a specific subdivision of section 1192.7, the prosecution is free to change its theory at trial and attempt to sustain the enhancement on the basis of a different subdivision. In light of the clarification provided by [People v.] Thomas [(1986) 41 Cal.3d 837 (226 Cal. Rptr. 107, 718 P.2d 94)] and the present decision, we trust that in the future the prosecution will afford defendants adequate notice of the specific subdivision or subdivisions of section 1192.7 on which it is relying to establish that both the current and prior offenses are serious felonies for purposes of section 667." (Id. at p. 467, fn. 13.)
We conclude that Equarte did not hold a prior serious felony enhancement must be reversed in all instances where the prosecution proves a serious felony under a specific provision of subdivision (c) of section 1192.7 other than the one expressly pleaded in the information. The pivotal inquiry is whether the defendant had notice of the undesignated serious felony category and, if not, whether he nonetheless had an opportunity to defend.
Equarte holds that the defendant is entitled to notice of the factual basis underlying the serious felony allegation rather than the precise subdivision designation. (People v. Equarte, supra, 42 Cal.3d at p. 465.) "It is the specific factual allegations of a pleading which determine what offenses are charged.... An accusatory pleading must likewise allege each fact required for imposition of an enhanced term." (People v. Shoaff (1993) 16 Cal. App.4th 1112, 1117-1118 [20 Cal. Rptr.2d 464], citations omitted.)
At the trial on the enhancements appellant acknowledged he was aware that the prosecution charged the current offense as a serious felony under the theory of personal use of a deadly weapon but argued that the word "personally" was not pleaded and there was no specific finding of personal use of the knife by the jury.[3] As discussed, ante, the absence of a jury finding in this regard is of no import since a court trial was held on the enhancements. Moreover, we conclude that the pertinent pleading sufficiently apprised appellant that the prosecution intended to proceed under *1394 subdivision (c)(23) of section 1192.7, i.e., he "personally used a dangerous or deadly weapon."
The amended information alleged appellant committed "an assault upon [Tran] with a deadly weapon, to wit, a knife, and by means of force likely to produce great bodily injury[,]" and that appellant "personally inflicted great bodily injury upon [Tran]."
(3) An offense under section 245, subdivision (a)(1) is committed when the accused "commits an assault upon the person of another with a deadly weapon ... or by any means of force likely to produce great bodily injury[.]" Because the disjunctive is employed "the two acts mentioned in Penal Code section 245 must be treated separately." (People v. Ramos (1972) 25 Cal. App.3d 529, 538 [101 Cal. Rptr. 230].) However, only the single act of assault with a deadly weapon is charged where, as here, the offense is alleged in the conjunctive. In such instance the phrase "by means of force likely to produce great bodily injury" simply describes the manner in which the weapon is used and serves to explain why it thereby constitutes a deadly weapon. In other words, the allegation of assault with a deadly weapon, to wit, a knife, and by means of force likely to produce great bodily injury placed appellant on notice that he was charged with committing the assault by wielding a knife with force likely to produce great bodily injury. (See People v. Herd (1963) 220 Cal. App.2d 847, 850 [34 Cal. Rptr. 141] ["Although not an inherently deadly weapon, a knife becomes such when used in such a manner as to cause severe bodily injury."].) Appellant was also placed on notice that he was charged with personally using the knife because it was further alleged that he personally inflicted great bodily injury.[4]
(2b) We conclude that reversal of a serious felony enhancement is not required where the prosecution's change in the theory underlying the *1395 charged serious felony does not deprive the defendant of an opportunity to defend against this change. In the present case appellant makes no claim of prejudice resulting from the prosecution's reliance on its theory based on subdivision (c)(23) of section 1192.7. The record in fact reveals appellant was not deprived of the opportunity to defend against this theory. The amended information alleged appellant committed the assault with a deadly weapon, to wit, a knife, and with personally inflicting great bodily injury. Appellant thus knew he would have to show that he did not personally use a knife in defending against the allegations of the amended information, which was filed before the impanelment of the jury. Accordingly, appellant was fully cognizant of the factual basis underlying the prosecution's theory that the current offense was a serious felony within the meaning of subdivision (c)(23) ("defendant personally used a dangerous or deadly weapon") of section 1192.7. His burden was in no way increased or otherwise altered by reason of his having to defend against a charge of personal use of the knife since the uncontroverted evidence disclosed no accomplice. (See People v. Equarte, supra, 42 Cal.3d at pp. 460, 467.) The enhancements are therefore valid. (People v. Thomas, supra, 43 Cal.3d at pp. 830-831.)
DISPOSITION
The judgment is affirmed.
Epstein, Acting P.J., and Hastings, J., concurred.
Appellant's petition for review by the Supreme Court was denied May 10, 1995.
NOTES
[1] All future section references are to the Penal Code.
[2] Both the clerk's transcript and the reporter's transcript reflect on January 13, 1993, after the jury retired to deliberate, appellant waived the right to a jury trial on the prior conviction allegations. On a related matter, however, there is an apparent inconsistency between the clerk's transcript and the reporter's transcript. According to the clerk's transcript, on January 11, 1993, prior to impanelment of the jury, appellant's motion to bifurcate the trial on the prior conviction allegations was granted. The reporter's transcript fails to disclose any ruling on the motion. We deem the clerk's transcript to be the correct recital of the record in this regard. (See, e.g., People v. Smith (1983) 33 Cal.3d 596, 599 [189 Cal. Rptr. 862, 659 P.2d 1152]; People v. Ritchie (1971) 17 Cal. App.3d 1098, 1103 [95 Cal. Rptr. 462]; In re Evans (1945) 70 Cal. App.2d 213, 216 [160 P.2d 551].)
[3] In this regard the record reveals appellant acknowledged "for a 245 to be a serious felony, ... there [has to be] a finding of personal use of a deadly weapon or great bodily injury allegation for there to be a finding. There doesn't have to be [a] 12022(B) enhancement. What there does have to be is some sort of showing that the knife or whatever the deadly weapon is [] an element of the offense. [¶] How they do that is in the charging documents by saying so and so committed an assault with a deadly weapon, to wit, a knife on so and so on a certain occasion. That's how the case that we tried was pled." His complaint in this regard was simply the word "personally" was not pleaded and proved.
The prosecutor argued the fact the word "personally" was not pleaded in the information does not preclude a finding of "serious felony" under subdivision (c)(23) because under Equarte the court could base its finding of personal use from the evidence, which in this case conclusively showed the only person who could have used the knife was appellant.
Appellant stated he wanted to preserve the issue for appeal and asked "the court not to find it as a serious felony since there was no [true finding on the GBI allegation] and certainly there was no finding, specific finding of personal use of the knife."
When the court noted there was no GBI finding, appellant responded, "That's correct. And so it's a serious felony [on] just personal use of a deadly weapon." He then stated he would submit it but asked "the court to hold it as a non-serious offense, since this would not support [a] 667 [enhancement]."
[4] As discussed, ante, whether appellant has notice of the factual basis underlying the serious felony is determined by the specific allegations of the accusatory pleading. (People v. Shoaff, supra, 16 Cal. App.4th at pp. 1117-1118.) Accordingly, the trial court's misreading of the amended information as actually alleged is of no legal import. The amended information alleged "[o]n or about August 8, 1992, in the County of Los Angeles, the crime of ASSAULT GREAT BODILY INJURY AND WITH DEADLY WEAPON, in violation of PENAL CODE SECTION 245(a)(1), a Felony, was committed by THEODORE FLYNN, who did willfully and unlawfully commit an assault upon Chinh Tran with a deadly weapon, to wit, a knife, and by means of force likely to produce great bodily injury." The court, however, read the amended information to the jury as follows: "on or about August 8, 1992, in the County of Los Angeles, the crime of assault with great bodily injury and/or with a deadly weapon in violation of Penal Code section 245(a)(1), a felony, was committed by Theodore Flynn who did willfully and unlawfully commit an assault upon Chinh Tran, last name is T-r-a-n, with a deadly weapon, to wit, a knife and/or by means of force likely to produce great bodily injury." (Italics added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263219/ | 893 A.2d 858 (2006)
M & D PROPERTIES, INC., a Corporation, Appellant
v.
The BOROUGH OF PORT VUE, a municipal corporation.
Commonwealth Court of Pennsylvania.
Argued January 31, 2006.
Decided February 28, 2006.
*860 Samuel J. Pasquarelli, Pittsburgh, for appellant.
Patricia L. McGrail, White Oak, for appellee.
BEFORE: SMITH-RIBNER, Judge, COHN JUBELIRER, Judge, and LEAVITT, Judge.
OPINION BY Judge LEAVITT.
Appellant, M & D Properties, Inc. (M & D), appeals from a judgment entered on July 26, 2005, by the Court of Common Pleas of Allegheny County (trial court) on a non-jury verdict in favor of the Borough of Port Vue (Borough). At issue in this case is the reasonableness of garbage collection fees assessed by the Borough against an apartment complex owned and operated by M & D. We affirm.
The facts in this case are undisputed. The Borough's ordinance requires that all domestic refuse accumulated upon any property within the Borough be collected and removed by the Borough or an approved independent contractor. BOROUGH OF PORT VUE, PA., ORDINANCE ch. 20, part 1, § 101 (1949) (ORDINANCE); Reproduced Record at 33a (R.R. ___). Since 1991, the Borough has contracted with a private garbage hauler to perform that function. The Borough selects its garbage hauler by publicly advertising the terms, conditions and contract specifications and selecting the lowest bid from among those submitted by interested service providers. At all times relevant to the instant action, the fee charged by the Borough to owners of real estate for the collection of garbage was $105 per family unit, per year. This charge is levied per family regardless of whether they reside in a single family home, a multi-family home or an apartment building.[1]
M & D owns and operates the Westwood Apartments, an apartment complex located in the Borough consisting of nine separate buildings and 72 single-family units. The residents of the Westwood Apartments are responsible for depositing their trash into one of three dumpsters located within the complex. Pursuant to its contract with the Borough, the Borough's garbage hauler collects the refuse from the dumpsters two times per week.[2] In accordance with Section 107.1.B of the Ordinance, the Borough levied, and M & D paid, the annual trash collection fee of $105 for each of the 72 units in the Westwood complex.
M & D filed a civil action complaint in 1993 raising various constitutional challenges *861 to the Ordinance and alleging that the Borough's annual trash collection fee for 1991, 1992 and 1993 was "arbitrary, irrational, unreasonable, confiscatory, and not related to the Borough's incurred costs of collection of trash." R.R. 8a. In support of its claim, M & D offered bids it obtained from two private trash haulers for collection of garbage at the Westwood Apartments. The lowest of the two proposals was from Blackburn Sanitation, a Waste Management Company, which quoted M & D a price equivalent to $45.83 per unit, per year for two collections per week. The second proposal, from Kelly Run Sanitation, Inc., indicated a price of $47.67 per unit, per year for the same service. M & D also alleged in its complaint that the Borough wrongfully denied M & D a discount for pre-paying the trash collection fee and certain exemptions from the fee for long-term vacancies at the Westwood Apartments. M & D requested damages on the foregoing claims.
The trial court, by Judge Joseph Jaffe, found in favor of M & D on all of its claims and entered judgment in its favor in the amount of $46,797.12. The Borough filed a motion for post-trial relief, which was granted, and the case was reassigned to Judge Cynthia Baldwin for a de novo non-jury trial.
Based on the stipulated facts submitted by the parties, Judge Baldwin rendered a verdict in favor of M & D on the issues of credit for prepayment of the garbage collection fee and the vacancy exemptions.[3] Judge Baldwin found that M & D failed to sustain its burden of proof that the Borough's trash collection fee was unreasonable and, accordingly, found in favor of the Borough on that issue. M & D filed post-trial motions, which were denied, and judgment was entered on the trial court's verdict on July 26, 2005. M & D now appeals.
M & D raises two issues on appeal: (1) the trial court's verdict was not supported by the evidence and is contrary to law, and (2) the trial court erred in finding that M & D failed to sustain its burden of proving that the trash collection fee is unreasonable.[4]
M & D argues, first, that the trial court's verdict that the Borough's trash collection fee is reasonable is not supported by the evidence. M & D posits that the evidence dictates the opposite conclusion. M & D relies principally on a comparison between the Borough's fee of $105 per unit, per year and the proposals from two independent contractors to provide trash collection service to the Westwood Apartments on an annualized, per unit basis of $45.83 and $47.67. M & D contends that because the Borough's fee is more than twice that proposed by the private haulers it is unreasonable under Section 1202(11) of The Borough Code, Act of February 1, 1966, P.L. (1965) 1656, as amended, 53 P.S. § 46202(11).[5] M & D *862 also contends, relying on the Borough's financial records attached to the parties' Stipulations of Fact, that the Borough realized a profit of $170,380, or 41% above its actual cost, in providing trash collection service for 1994, 1995 and 1996. M & D avers that the Westwood Apartments constitute 4% of the 1,700 dwelling units in the Borough, whereas the fees assessed against Westwood represent 7.5% of the Borough's total trash collection revenue. Based upon the foregoing arguments, M & D contends that our Supreme Court's decision in Ridley Arms, Inc. v. Township of Ridley, 515 Pa. 542, 531 A.2d 414 (1987), is controlling.
In reviewing M & D's claims, we are mindful that fees charged by a municipality for services rendered are proper if they are reasonably proportional to the costs of the regulation or the services performed. National Properties, Inc. v. Borough of Macungie, 141 Pa.Cmwlth. 342, 595 A.2d 742, 745 (1991). A municipality may not use its power to collect fees for a service as a means of raising revenue for other purposes. Id. at 745-746. The party challenging the reasonableness of a fee bears the burden of proving it is unreasonable. Id. at 746.
We address, first, M & D's principal argument that the Borough's annual fee of $105 per dwelling unit is unreasonable when compared to the fees proposed by the two private trash haulers for the same service. We agree with the trial court that the evidence submitted does not support M & D's conclusion that the fees are unreasonable. The Borough's fee covers more than just the contractual payments to its designated trash hauler. The fee also includes overhead expenses borne by the Borough for personnel, billing, collection, regulation, inspection and enforcement costs. Any assessment of the reasonableness of the Borough's $105 fee must take into account whether the fee is "reasonably proportional" to all of the costs associated with trash collection, not just one part of those costs. The same is true with respect to M & D's contention that the Borough realized a 41% profit above its actual cost in providing refuse collection services.[6] In short, the evidence presented by M & D failed to provide a complete financial picture, and the trial court properly found that M & D failed to sustain its burden of proving that the Borough's fee was unreasonable.[7]
*863 M & D relies heavily on our Supreme Court's decision in Ridley Arms, Inc. as support for its argument that the Borough's trash collection fee is unreasonable. Specifically, M & D points to the Court's finding that the payment of approximately $58,000 to a municipality "for the performance of services which can be, and actually were provided by the private sector for approximately $23,000, less than half the amount charged by government, is not `reasonable,' and is therefore a violation of [T]he First Class Township Code [Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. §§ 55101-58502]." Id. at 549, 531 A.2d at 417.[8]Ridley Arms, Inc. is distinguishable from the instant case in two key respects. First, the Township of Ridley conceded that its actual cost per unit for collecting refuse from apartment complexes ranged from $19.99 to $30.00 during the relevant time period, whereas it charged a refuse collection fee of $70.00 per unit. Id. at 549 n. 6, 531 A.2d at 417 n. 6. In the present case the Borough made no such concession that it was levying a revenue-generating surcharge. Second, Ridley Arms paid a private contractor $22,929 for trash removal in addition to paying the township $58,156.67 in fees pursuant to the refuse collection ordinance. Id. at 546, 531 A.2d at 416. M & D did not pay a fee to the Borough for services which "actually were provided by the private sector" for half the cost. In light of these factual distinctions, we disagree with M & D's assertion that Ridley Arms, Inc. compels the conclusion that the Borough's trash collection fee is per se unreasonable.
In its second issue on appeal, M & D contends that the trial court erred in its determination that M & D failed to sustain its burden of proof. M & D submits that it met its burden once it established "through competent evidence that it was more likely than not that the Borough's fees were unreasonable." Appellant's Brief at 19. At that point, M & D argues, the burden should have shifted to the Borough to establish that its fee was reasonable.
We agree with the trial court that M & D's failure to cite any legal authority for its shifting burden analysis is fatal to its position. It is also contrary to the decisional law of this Court stating that "[t]he party challenging the reasonableness of the fee bears the burden of proving it is unreasonable." National Properties, Inc., 595 A.2d at 746 (citing Hill v. Borough of Dormont, 90 Pa.Cmwlth. 10, 494 A.2d 15 (1985) and Phillips v. Borough of Folcroft, 44 Pa.Cmwlth. 83, 403 A.2d 194 (1979)). The burden does not shift to a municipality to prove that a challenged fee is reasonable; it always remains the burden of the challenger to show that the fees are unreasonable.
For the foregoing reasons, we affirm the judgment of the trial court entered on July 26, 2005.
ORDER
AND NOW, this 28th day of February, 2006, the judgment entered in the Court of Common Pleas of Allegheny County on *864 July 26, 2005, in the above-captioned matter, is hereby AFFIRMED.
NOTES
[1] Section 107 of the Ordinance ("Service Fees") provides:
1. Residential Premises. The residences of the Borough are hereby divided into fair and reasonable types according to their structure and use for the purpose of garbage, rubbish and trash accumulation. The owner and/or tenant of each residential dwelling situate within the Borough, including, but not limited to, apartment buildings and individual units in apartment buildings situate within the Borough, shall use the garbage, rubbish and trash disposal service as provided by the Borough and shall pay service fees as hereinafter provided for the use of such collection and disposal facilities:
A. For one (1), two (2) or multiple family dwellings, the service fee shall be one hundred dollars ($100.00) per year, per family.
B. For apartment buildings, the service fee shall be one hundred dollars ($100.00) per year, per unit.
ORDINANCE § 107; R.R. 34a. Although the Ordinance currently prescribes an annual fee of $100 per unit, the parties have stipulated that the fee was $105 per year, per unit at all times relevant to this litigation. R.R. 28a.
[2] By contrast, garbage is collected from single and multi-family dwellings within the Borough once per week, from individual curbside containers.
[3] M & D was ultimately awarded $3,280.44 for prepayment credits wrongfully withheld by the Borough, and $3,364.28 for wrongfully withheld vacancy exemptions. Amended Nonjury Verdict, July 11, 2005. Neither party has raised any challenge to these awards.
[4] This Court's standard of review of a verdict following a non-jury trial is limited to determining whether the findings of the trial court are supported by competent evidence and whether the trial judge committed error in the application of law. Stonehedge Square Ltd. Partnership v. Movie Merchants, Inc., 454 Pa.Super. 468, 685 A.2d 1019, 1022 (1996). Additionally, findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as a verdict of a jury and will not be disturbed absent an error of law or abuse of discretion. Id.
[5] Section 1202(11) of The Borough Code provides as follows:
The powers of the borough shall be vested in the corporate authorities. Among the specific powers of the borough shall be the following, and in the exercise of any of such powers involving the enactment of any ordinance or the making of any regulation, restriction or prohibition, the borough may provide for the enforcement thereof and may prescribe penalties for the violation thereof or for the failure to conform thereto:
* * *
(11) Removal of garbage and other refuse material. To make regulations for the care and removal of garbage and other refuse material, including the imposition and collection of reasonable fees and charges therefor.
53 P.S. § 46202(11) (emphasis added).
[6] M & D's profit analysis is based upon the Borough's stipulated garbage fund revenues for 1994, 1995 and 1996. M & D's original complaint, however, filed on March 5, 1993, averred that the collection fee was unreasonable "[f]rom January 1, 1991 through the present time." R.R. 8a. Although we reject M & D's theory for the reasons stated above, we note that there is no evidence of record regarding the Borough's revenues for 1991 to 1993, the time period placed at issue by M & D.
[7] M & D also asserts that the Westwood Apartments represent 4% of the number of dwelling units in the Borough, but that the fees assessed against Westwood constitute 7.5% of the Borough's total revenue for trash collection. In arriving at those percentages, M & D presumes that there are a total of 1,700 dwelling units in the Borough. In the same section of its brief, however, M & D acknowledges that the total number of dwelling units in the Borough "must be in excess of 1700." Appellant's Brief at 14. We cannot overlook this obvious discrepancy in the basis for M & D's calculations. Again, we note our agreement with the trial court that M & D failed to offer competent evidence in support of its ultimate claim that the Borough's fee is unreasonable.
[8] The operative provision of The First Class Township Code at issue in Ridley Arms, Inc. is essentially the same as Section 1202(11) of The Borough Code which governs the present case in that they both require "reasonable fees and charges." See supra note 5. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332178/ | 127 S.E.2d 778 (1962)
258 N.C. 58
Thomas Jefferson JENKINS
v.
ATLANTIC COAST LINE RAILROAD COMPANY.
No. 306.
Supreme Court of North Carolina.
October 31, 1962.
*779 R. S. Langley, Kinston, Robert D. Wheeler, Grifton, for plaintiff, appellant.
Bland & Freeman, By W. Powell Bland, Goldsboro, Wallace & Wallace, By F. E. Wallace, Jr., Kinston, for defendant, appellee.
HIGGINS, Justice.
The record does not disclose the legal ground upon which the trial judge based the nonsuit. The judgment must be sustained, however, if the evidence fails to show the defendant's negligence or does affirmatively show the plaintiff's contributory negligence as a matter of law. Carter v. Atlantic Coast Line R. R., 256 N.C. 545, 124 S.E.2d 561. In passing on the sufficiency of the evidence to survive the motion for nonsuit, we must resolve all conflicts in the testimony in the plaintiff's favor. Assuming the trial court concluded, therefore, the evidence presented a jury question on the issue of the defendant's negligence, nevertheless the plaintiff's own evidence shows his contributory negligence as a matter of law. If, as his own witness testified, the view south along the track was obstructed, he knew about the obstruction. Reason is not suggested why he did not proceed one block further north along the highway which paralleled the railroad track and cross at the Seventh Street crossing as his witness Dickerson did on this same occasion. Dickerson was also hauling gravel from the same dump to the same delivery point for the same employer.
The evidence does not even suggest the plaintiff stopped to look or listen, but apparently trusted to blind luck and ran into the train. The noise of an engine pulling a 10-wheel truck, weighing 23 tons, should be enough to put the driver on guard not to rely solely on a whistle or a bell, especially at train time. The driver failed to use any sort of reasonable precaution for his own safety. His negligence appears as a matter of law. "It is the prevailing and permissible rule of practice to enter judgment of nonsuit in a negligence case, when it appears from the evidence offered on behalf of the plaintiff that his own negligence was the proximate cause of the injury or one of them." Godwin v. Atlantic Coast Line R. R., 220 N.C. 281, 17 S.E.2d 137. See also, Carter v. Atlantic Coast Line R. R., supra; Arvin v. McClintock, 253 N.C. 679, 118 S.E.2d 129; Irby v. Southern Ry. Co., 246 N.C. 384, 98 S.E.2d 349, 70 A.L.R. 2d 1.
For the reasons assigned, the judgment entered in the court below is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332107/ | 127 S.E.2d 234 (1962)
257 N.C. 658
W. E. SCOTT, M. M. Scott, J. E. Scott, G. L. Scott, Mary S. Davis, Katherine S. McPherson, Gertie S. Brickhouse, Elsie S. Copeland, Julius Twiddy, Robert Twiddy and Wesley S. Twiddy
v.
Cora JACKSON, Raymond Davis, Courtney Sikes, Edward Davis, Melvin Davis, Elizabeth D. Hanback, Luther Davis, Jr., Charles Davis, Nellie D. Paisley, Philip Davis, George Randolph, Jr., Vivian B. Bray, Mary R. Bowden, Ethel R. Boone, Gaston Williams, Lena W. Forehand, Wiley Williams, Hyacinth S. Holton, Lucille S. Edwards, Annie Mae G. Etheridge, Doris W. Burgess, Bethel W. Sawyer and Margaret W. Ferebee.
No. 28.
Supreme Court of North Carolina.
September 19, 1962.
*235 John H. Hall, Elizabeth City, for plaintiffs-appellees.
E. Ray Etheridge, Elizabeth City, for defendants-appellants
RODMAN, Justice.
William Randolph died in 1931. His will dated 19 March 1927 was probated in Pasquotank County.
Ethel Mae Stafford died intestate in 1961. She never had a child. Plaintiffs are her heirs at law.
William Randolph never had a child. Defendants are his heirs at law.
Polly S. Randolph, widow of William, died in 1946.
The rights of the parties are determined by the interpretation given to Items Two and Three of the will of William Randolph. They read as follows:
"ITEM TWO. I give, devise and bequeath unto my beloved wife for and during the term of her natural life, all of my property of whatever kind and wherever situated, consisting of real, personal and mixed property and choses in action. The personal property to be used by her for her support and maintenance and if necessary, to sell any part of the said personal property to pay off any indebtedness that I may owe at my death
"ITEM THREE. I give and devise unto Ethel Mae Stafford, who is my wife's niece and who has been reared and maintained by us since she was six years of age, after the death of my wife, all of my real estate, and such of my personal property as my wife shall not have disposed of or used during her life time to her and her heirs in fee simple, and in the event that the said Ethel Mae Stafford should die without leaving any issue or the issue of such then I devise such of my real estate to go to my heirs."
Plaintiffs, to support their assertion of title, say the word "children" should be substituted for the word "heirs" at the end of the third item so that the clause of defeasance would read: "in the event that the said Ethel Mae Stafford should die without leaving any issue or the issue of such then I devise such of my real estate to go to my children."
If the will should be so read, plaintiffs are the owners of the land, because, testator never having had children, there was never anyone who could qualify as the ultimate devisee. Hence the condition over *236 would necessarily fail. Elmore v. Austin, 232 N.C. 13, 22, 59 S.E.2d 205; Lide v. Mears, 231 N.C. 111, 120, 56 S.E.2d 404.
To support their contention that the word "children" must be substituted for the word "heirs" at the end of Item Three of the will, plaintiffs rely on G.S. § 41-6.
It is, we think, apparent this statutory provision can have no application to the facts of this case. This is true for two reasons: First, the statute applies only when the conveyance is to the heirs of a living person. Here the contingent and ultimate beneficiaries could not be the heirs of a living person because nothing was given prior to the death of William Randolph, the devisor. The instant Ethel Mae Stafford acquired an interest in the lands the heirs of William Randolph were readily ascertainable. Perrett v. Bird, 152 N.C. 220, 67 S.E. 507. This is not a case of nemo est haeres viventis. The converse of the picture here presented resulting in a different conclusion was presented to this Court in Thompson v. Batts, 168 N.C. 333, 84 S.E. 347.
Second, testator had no children when his will was executed. The devise to Ethel Mae Stafford would have been defeated by the subsequent birth of issue to devisor. G.S. § 31-5.5. To hold that a word deliberately chosen by a devisor should not be given its customary and accepted meaning, but a word of limited meaning should be substituted, thereby invalidating the will solemnly executed, would not give effect to testator's intention, but would do violence thereto.
Ethel Mae Stafford was given a fee defeasible. When she died never having borne a child her estate terminated. Title then vested in defendants, the then heirs at law of William Randolph. Ziegler v. Love, 185 N.C. 40, 115 S.E. 887; Kirkman v. Smith, 174 N.C. 603, 94 S.E. 423; 175 N.C. 579, 96 S.E. 51; Burden v. Lipsitz, 166 N.C. 523, 82 S.E. 863; Elkins v. Seigler, 154 N.C. 374, 70 S.E. 636.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332253/ | 106 Ga. App. 626 (1962)
127 S.E.2d 679
SIMS
v.
HOFF.
39560.
Court of Appeals of Georgia.
Decided September 6, 1962.
Rehearing Denied September 25, 1962.
*627 James L. Moore, for plaintiff in error.
T. J. Long, Ben Weinberg, Jr., contra.
RUSSELL, Judge.
1. Special grounds 1 and 2 of the amended *628 motion for new trial except to certain instructions of the trial court to the general effect that the defendant's pleaded allegation that the plaintiff was negligent in operating his motor scooter in an unsafe condition and without proper brakes was an allegation of negligence per se, in which connection he pointed out the pertinent provisions of Code Ann. § 68-1701 (a) and Code Ann. § 68-1715 (a) (2) requiring efficient and serviceable brakes and making it a misdemeanor for any person to drive a vehicle in an unsafe condition or without such brakes.
(a) It is first contended that it was argumentative and prejudicial for the court to charge that a violation of the statute in question was a misdemeanor, a matter not pertinent to the issues of this case. While it is true that the punishment provided for an infraction of the law is not relevant to the issues in a civil case, and may even be prejudicial, yet the fact that a violation of law has been committed is both relevant and material, and the law relative thereto is presumed to be the common knowledge of the citizenry. "The omission of specific acts of diligence prescribed by statute, or by a valid municipal ordinance, is negligence per se, and the court may so instruct the jury." Central R. &c. Co. v. Smith, 78 Ga. 694 (1) (3 S.E. 397). This is true whether or not a criminal penalty is exacted on conviction of the violation. Teague v. Keith, 214 Ga. 853 (1) (108 SE2d 489). "An act prohibited by a penal statute, and which might be negligence as a matter of law, is not negligence unless its commission is in violation of some duty owing, under the circumstances, by the person committing the act to another person, and is capable of having a causal connection with the injury inflicted." Etheridge v. Guest, 63 Ga. App. 637, 640 (12 SE2d 483). "When any specific act or dereliction is so universally wrongful as to attract the attention of the lawmaking power, and this concrete wrong is expressly prohibited by law or ordinance, a violation of this law, a commission of the specific act forbidden, is, for civil purposes, correctly called negligence per se." Platt v. Southern Photo Material Co., 4 Ga. App. 159, 163 (60 S.E. 1068). The judge properly charged that under the Code sections referred to the petition alleged negligence per se and he did not, in connection therewith, so emphasize the penal sanctions involved as to "cause the jury to believe that the act of *629 plaintiff riding the motor scooter was a misdemeanor," as contended.
(b) It is further contended that the charge was not authorized by the evidence, for the reason that the only evidence that the plaintiff did not have proper brakes on his motor scooter comes from the testimony of a police officer who stated that the plaintiff told him immediately after the collision that he had no brakes on his motor scooter and could not stop. Proof of such an admission by a party opponent has a value beyond that of its use for impeachment purposes; it is evidence of negligence upon which a verdict may be based. Faulkner v. Brown, 92 Ga. App. 602 (89 SE2d 583); Code § 38-403; Green, Ga. Law of Evidence, § 233. The charge was not error for any reason assigned.
2. Error is also assigned on the following portion of the charge: "If a witness should be successfully impeached, that is to say, if it is proven to the satisfaction of the jury that such witness is not worthy of belief, in that event it would be the duty of the jury to disregard the testimony of such witness entirely unless it be corroborated by other credible and unimpeached evidence, direct or circumstantial." Substantially identical language was held proper in Holston v. Southern R. Co., 116 Ga. 656 (3) (43 S.E. 29), citing Smith v. State, 109 Ga. 479 (2) (35 S.E. 59). The latter case points out that the assignment of error was not full or fair because the charge of the court included, in addition to the language set out there similar to that excepted to here, other instructions to the effect that although testimony is introduced for the purpose of impeachment, the jury have the right to believe the witness's testimony if they find he spoke the truth. Here the court charged in the immediate connection: "Where an effort has been made to impeach a witness, it is for the jury to determine whether or not such effort has been successful. . . The credibility of witnesses is a matter exclusively for the jury. It is for you to determine the weight and credit that should be given to the testimony of each and all of the witnesses." To the same effect see Atlanta &c. R. Co. v. Hudson, 2 Ga. App. 352, 354 (58 S.E. 500); Haynes v. Phillips, 69 Ga. App. 524 (26 SE2d 186) and citations. None of these *630 cases contains the vice inherent in Black & White Cab Co. v. Cowden, 64 Ga. App. 477 (13 SE2d 724) and Purvis v. Atlanta Northern R. Co., 136 Ga. 852 (2) (72 S.E. 343), which is that a court should not so charge on impeachment of witnesses as to leave the jury with the impression that mere proof of contradictory statements previously made is such an impeachment of the witness as to place the duty on them of disregarding his testimony, regardless of whether the contradictory statements were subject to some reasonable explanation, such as that they were an honest mistake. Where the court charges that the contradictory statements are such as pertain "to matters relevant to his testimony and to the case" the charge is not error for failing to state further that the testimony must be material. Kuttner v. Swanson, 59 Ga. App. 818 (2 SE2d 230). The charge on impeachment was without error.
3. The third special ground assigns error on (a) the court charging the substance of a stipulation between opposing counsel which is not contended to have been inaccurate in any particular, and (b) on another portion of the charge as being "unsound and erroneous because such violations or conduct of the plaintiff were negligent and the approximate cause of the plaintiff." As to the plaintiff, who is the complainant, the assignment of error shows neither error nor injury.
4. The remaining special ground is abandoned. Concerning the general grounds of the motion for a new trial, the evidence showed without dispute that the plaintiff, traveling west, was approaching a through intersection on a motor scooter behind an automobile making a right turn, and that the defendant, traveling south on the intersection street, stopped at the intersection and then made a left turn into it. The parties suffered a head-on collision within the intersection. The plaintiff was thrown to the pavement on the left side of the street, and the motor scooter was found approximately on the center line or slightly to its left. Whether the plaintiff was in fact on the left side of the street in the path of oncoming traffic at the moment of collision because he was attempting to pass a line of automobiles waiting for the first car to make its turn, or whether the defendant was negligent in cutting across the intersection into *631 the path of the plaintiff who was traveling on a street which had the right of way, was a question for the jury under contradictory testimony, and the jury resolved the question in favor of the defendant.
The trial court did not err in overruling the motion for a new trial.
Judgment affirmed. Carlisle, P. J., and Eberhardt, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1336267/ | 131 S.E.2d 601 (1963)
259 N.C. 531
Dewey C. SWANEY
v.
PEDEN STEEL COMPANY.
No. 523.
Supreme Court of North Carolina.
June 14, 1963.
*606 T. Lacy Williams, J. Ruffin Bailey, Raleigh, Miller and Beck, Asheboro, for defendant-appellant.
McLendon, Brim, Holderness & Brooks by Hubert Humphrey, Greensboro, Wilson & Clark, Monroe, for plaintiff-appellee.
SHARP, Justice.
Was the foregoing evidence sufficient to go to the jury on the alleged negligence of the defendant and, if so, does plaintiff's evidence establish his contributory negligence as a matter of law? These are the two questions for decision.
The defendant, as the designer and fabricator of the truss which collapsed during erection, was under the duty to exercise reasonable care not only to furnish a framework which would sustain the load it was intended to carry after erection, but which would also withstand the ordinary stresses to which it would be subjected during *607 erection by methods reasonably to be anticipated. If a negligently designed truss were furnished, a workman on the construction job was within the foreseeable zone of danger and, if it proximately caused him injury, the designer would be liable under the principle which imposes liability upon a manufacturer who puts into circulation a product which, if not carefully made, is likely to cause injury to those who lawfully use it for its intended purpose. Person v. Cauldwell-Wingate Co., 2 Cir., 176 F.2d 237; Williams v. Charles Stores Co., Inc., 209 N.C. 591, 184 S.E. 496; Tyson v. Long Manufacturing Co., 249 N.C. 557, 107 S.E.2d 170, 78 A.L.R. 2d 588; Gwyn v. Lucky City Motors, Inc., 252 N.C. 123, 113 S.E.2d 302; Wyatt v. North Carolina Equipment Co., 253 N.C. 355, 117 S.E.2d 21; International Derrick & Equipment Co. v. Croix, 5 Cir., 241 F.2d 216.
The general rules of law applicable to the question of defendant's alleged negligence have been stated in the following sections of the Restatement, Torts:
"A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel lawfully or to be in the vicinity of its probable use for bodily harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design." § 398. He is also liable if he supplies a "chattel for another's use knowing that the chattel is unlikely to be made reasonably safe before being put to a use which the supplier should expect it to be put," § 389.
"One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so." § 388. This section applies to "the manufacturer of a chattel which he knows to be, or to be likely to be, dangerous for use," § 394.
When defendant delivered the truss and the columns which were to support it to the Edenton Street Methodist Church job, it knew that steel erectors like the plaintiff would attempt to hoist and set the truss on the perpendicular columns. Its engineer who designed the truss was the one who knew, or should have known, both its strength and the erection stresses its bolts would be required to withstand. These were matters beyond the knowledge and ability of an ordinary steel erector to divine. Unless the truss had been so obviously defective that an erector of ordinary prudence would not have attempted to erect it, Newton was justified in assuming that it could be erected in the customary way. Ryan v. Fenney & Sheehan Bldg. Co., 239 N.Y. 43, 145 N.E. 321, 41 A.L.R. 1; Johnson v. West Fargo Mfg. Co., 255 Minn. 19, 95 N.W.2d 497; International Derrick & Equipment Co. v. Croix, supra; Babylon v. Scruton, 215 Md. 299, 138 A.2d 375. If the defendant knew, or in the exercise of proper care should have known, that the design of the truss made it unsafe to attempt erection by the usual and ordinary methods, it was the defendant's duty to warn Newton of these facts. It does not contend that it gave any information or instruction with reference to erection. Defendant contends that Newton attempted the erection in an unusual manner and that it cannot be held liable for an injury which *608 occurred from a use it could not reasonably have anticipated. Lemon v. Buchan Lumber Co., 251 N.C. 675, 111 S.E.2d 868; Anno: Products LiabilityBuilding Supplies, 78 A.L.R. 2d 696, 701; International Derrick & Equipment Co. v. Croix, supra.
The evidence in this case, although conflicting, was sufficient for the jury to find (1) that Newton attempted to erect the truss in the customary manner and in a way which defendant should reasonably have anticipated; (2) that in designing the truss, defendant's engineer did not take into account the stresses of erection and that the deadweight of the truss itself, without the weight of the two men on it, would have caused the bolts to shear; and (3) that the steel erectors had no way of knowing its weakness unless informed of it by defendant which failed to perform this duty.
If the jury found these facts against the defendant the conclusion that its negligence was at least a proximate cause of plaintiff's injury necessarily followed. The jury exonerated Newton of any negligence proximately causing injury to the plaintiff, and no assignment of error challenges the trial on that issue.
We come now to the question of plaintiff's contributory negligence, the defense upon which defendant relies most heavily. It contends that when plaintiff rode the load upward to attach the truss to the upright columns he was guilty of contributory negligence as a matter of law because (1) riding the load was so obviously dangerous it was plaintiff's duty to refuse to obey the order to do so and he assumed all the risks incident thereto when, instead of refusing, he knowingly placed himself in a position of danger; and (2) in riding the load, plaintiff violated both a standard safety rule of the industry incorporated in the North Carolina Building Code and a regulation of the Department of Labor having the force of law.
Defendant did not specifically plead any of the safety rules upon which it now depends. However, in its brief, it relies upon § 18 of Article XXV of the Rules and Regulations Governing the Construction Industry issued by the Department of Labor and the American Standard Safety Code for Building Construction, No. A10.2-1944, approved June 7, 1944 by the American Standards Association which, it contends, § 914 of the North Carolina Building Code incorporated. The General Assembly has given the North Carolina Building Code the force of law. Therefore, the National Electrical Code which it incorporated with the approval of the legislature also has the force of law. G. S. § 143-138; Lutz Industries v. Dixie Home Stores, 242 N.C. 332, 88 S.E.2d 333; Drum v. Bisaner, 252 N.C. 305, 113 S.E.2d 560; Jenkins v. Leftwich Electric Co., 254 N.C. 553, 119 S.E.2d 767.
However, this Safety Code for Building Construction which defendant stresses so forcibly and from which it purports to quote in the brief, is not referred to anywhere in the North Carolina Building Code. § 914 refers to two other named publications, neither of which has been filed with the Secretary of State as required by G.S. § 143-195. Apparently they relate to specifications for the design, fabrication and erection of structural steel itselfnot rules safeguarding steel erectors. Furthermore, this Safety Code for Building Construction was not offered in evidence at the trial nor would it have been competent if offered. Sloan v. Carolina Power & Light Co., 248 N.C. 125, 102 S.E.2d 822.
North Carolina is in accord with the majority view that advisory codes which have not been given compulsory force by the legislative body, whether issued by governmental agencies or voluntary safety councils, are not admissible in evidence in civil actions. Sloan v. Carolina Power & Light Co., supra; 38 Am. Jur., Negligence, § 170; Anno.: EvidenceSafety Codes75 A.L.R.2d 778; 1962 Cumulative Supplement to 20 Am. *609 Jur., Evidence p. 175, addenda to footnote 8, p. 815 of the Text. For a discussion of the problem, see the article entitled "The Role of Administrative Safety Measures in Negligence Actions," 28 Texas Law Review 143.
Defendant introduced in evidence the following sections from the "Rules and Regulations Governing the Construction Industry" issued by the Department of Labor under G.S. § 95-11:
"No employee shall be allowed to ride at any time upon any material elevator or hoist. Nor shall they be permitted to ride upon the sling, load, hook, ball or block of any derrick or crane or in the bucket of any hoist, except when deemed necessary for making repairs or oiling overhead sheaves; provided that this section shall not apply to stacks or caissons nor to the dismantling of hoist, derricks, cranes and towers." Article XXV, § 18. (Hereinafter referred to as Rule 18)
"Every employee shall use all safeguards and safety appliances or devices furnished for his protection and shall be responsible for carrying out all rules and regulations which may concern or affect his conduct." Article II, § 1.
The charge of the court is not in the record, but presumably these rules were received as evidence tending to establish contributory negligence on the part of the plaintiff. The defendant received whatever benefit was to be derived from the introduction of these rules and assigns no error with reference to their use. It now contends they establish plaintiff's contributory negligence as a matter of law. This contention is untenable.
The legislature has not given the rules governing the construction industry promulgated by the Department of Labor the same force of law which it gave the North Carolina Building Code. G.S. § 143-138, which ratified and adopted the Building Code of 1953, made any violation of its provisions a misdemeanor and therefore, negligence per se in any civil action instituted by a person who has sustained injuries proximately caused thereby. However, the legislature imposed no criminal penalty for a violation of the Department of Labor's construction regulations. G.S. § 95-13 provides that if any person, firm, or corporation shall, after notice from the Commissioner of Labor, violate the rules promulgated under G.S. § 95-11 relating to safety devices or measures, the Attorney General may take proper civil action to enforce them. Obviously, since the rules were formulated for the protection and welfare of the employees, such action for injunctive relief would be taken only against the employer. It is noted that regulations made by the Department of Labor to carry out the provisions of the Child Labor Law are, by statute, given the force of law and criminal penalties imposed for their violation. G.S. § 110-20.
When noncompliance with an administrative regulation is criminal, the rule that in the trial of a civil action the violation of a criminal statute, unless otherwise provided, is negligence per se, is applicable. Jenkins v. Leftwich Electric Co., supra; Hinson v. Dawson, 241 N.C. 714, 86 S.E.2d 585, 50 A.L.R. 2d 333. The General Assembly could specifically provide that the violation of an authorized administrative rule fixing reasonable standards of conduct would be either negligence per se or evidence of negligence in specified instances. "Whatever force and effect a rule or regulation has is derived entirely from the statute under which it is enacted * * *." 2 Am.Jur.2d, Administrative Law, Section 289.
However, neither the legislature, when it authorized the Division of Standards and Inspection of the Department of Labor to promulgate rules and regulations to protect "the health, safety, and general *610 well-being of the working classes of the State" (G.S. § 95-11), nor the Division when it wrote the rules, intended to create a criterion for negligence in civil damage suits. The rule in question is a prohibition upon the employer, and does not prohibit riding the load in all instances. It recognizes the necessity in the enumerated exceptions. The purpose of these rules was to require employers to provide safe working conditions for employees in order to minimize the risk of injury to them; it was not to establish a standard of care by which to judge an employee in his action against a third party whose negligence has injured him.
Even had the legislature given these rules the force of law, and if it be conceded arguendo that plaintiff had violated Rule 18 above, such violation would not necessarily be contributory negligence barring his recovery against a third party whom the rule was not intended to protect. 1962 Cumulative Supplement to 20 Am.Jur., supra; 38 Am.Jur., Negligence, § 196; 5 Am.Jur., Automobiles, § 409; Town of Remington v. Hesler, 111 Ind.App. 404, 41 N.E.2d 657; Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471; Bateman v. Doughnut Corp. of America, 63 Cal. App. 2d 711, 147 P.2d 404; Rampon v. Washington Water Power Co., 94 Wash. 438, 162 P. 514, L.R.A.1917C, 998; Flynn v. Gordon, 86 N.H. 198, 165 A. 715. See also Wright v. Southern R. R. Co., 4 Cir., 80 F. 260; Huckabee v. Grace, 48 Ga.App. 621, 173 S.E. 744.
Rule 18 could not be applied to the facts in this case without doing violence to fundamental principles and to the purpose of the rule. To do so would turn a regulation designed as a shield to protect a workman from an overreaching employer into a sword with which a third person tortfeasor, after he had negligently injured the employee, would administer the coup de grace.
We hold that plaintiff violated no law which would make him guilty of negligence per se. However, where no statute fixes the standard of conduct, it is that of the reasonably prudent person under the circumstances. We now measure plaintiff's conduct by that rule.
The plaintiff in this case was covered by the Workmen's Compensation Act, but let us assume that prior to its enactment in 1929 Newton had promulgated a rule against employees riding the load; that in violation of his rule he had ordered plaintiff to go up with the truss; that plaintiff obeyed and because of a defect in the hoisting crane he fell to the ground and was injured. A plea of contributory negligence would not have availed Newton unless the order plaintiff obeyed was so obviously dangerous that a reasonably prudent man under similar conditions would have disobeyed it and quit the employment rather than incur the hazard. Noble v. John L. Roper Lumber Co., 151 N.C. 76, 65 S.E. 622; West v. Fontana Mining Corp., 198 N.C. 150, 150 S.E. 884.
The law governing suits by servants against masters in common law actions ordinarily bars recovery when a servant's injuries are proximately caused by his violation of a known safety rule promulgated by the employer for the employee's protection and safety. However, if a rule has been habitually violated to the employer's knowledge, or violated so frequently and openly for such a length of time that in the exercise of ordinary care he should have ascertained its nonobservance, the rule is waived or abrogated. Biles v. Seaboard Air Line R. R., 139 N.C. 528, 52 S.E. 129; Haynes v. North Carolina R. R., 143 N.C. 154, 55 S.E. 516, 9 L.R.A.,N.S., 972; Smith v. North Carolina R. R., 147 N.C. 448, 61 S.E. 266, 17 L.R.A.,N.S., 179; Tisdale v. Union Tanning Co., 185 N.C. 497, 117 S.E. 583; Byers v. Boice Hardwood Co., 201 N.C. 75, 159 S.E. 3.
Certainly the defendant in this case who knew of the universal custom of steel workers to ride the load, like the master in common law actions, should not be allowed *611 to defeat plaintiff's recovery for injuries which its negligence proximately caused by relying upon a rule promulgated for the employee's protection, the violation of which would have been harmless but for defendant's negligence.
Plaintiff had no means whatever of knowing that the truss had not been designed to withstand the stress of erection. He obeyed a usual and customary order of his employer with no knowledge that an administrative agency had issued a rule against it or that advisory safety codes prescribed it. The day after the truss collapsed with him, Newton erected the reinforced framework in the same manner he had attempted the day before, his son riding the load in plaintiff's stead. Logically, it might be argued that when plaintiff mounted the truss he assumed the risk that he would lose his grasp on it, become dizzy, or that his foot would slip during the upward ride, but he did not assume a risk he could not have anticipated. Assumption of risk is founded on knowledge. Batton v. Atlantic Coast Line R. R., 212 N.C. 256, 193 S.E. 674; Womble v. Merchants' Grocery Co., 135 N.C. 474, 47 S.E. 493.
When a plaintiff has put himself in a dangerous situation, and while there is injured by the negligence of another, it is not always easy to determine whether his physical presence at the time and place was one of the proximate causes contributing to his injury or merely the opportunity or occasion for it. Sometimes a court solves the problem in favor of the injured plaintiff by putting the ultimate stress on the doctrine of proximate cause. Lerette v. Director General of Railroads, 306 Ill. 348, 137 N.E. 811. Of course, the specific accident would rarely happen to a particular plaintiff but for the fact that he was where he was at the time and place it occurred. However, mere presence at a place is not usually determinative. Berry v. Sugar Notch Borough, 191 Pa. 345, 43 A. 240; Bonnier v. Chicago, B. & Q. R. Co., 2 Ill. 2d 606, 119 N.E.2d 254; Cosgrove v. Shusterman, 129 Conn. 1, 26 A.2d 471. The fact that the injured person placed himself in a dangerous position will defeat his recovery only when the negligence which injured him can reasonably be considered as having been included in the risk to which his position exposed him. McFadden v. Pennzoil Co., 341 Pa. 433, 19 A.2d 370.
"The fact that the plaintiff has failed to exercise reasonable care for his own safety does not bar recovery unless the plaintiff's harm results from a hazardous cause to which his conduct was negligent." Restatement, Torts, § 468.
Contributory negligence becomes a question of law only when plaintiff's evidence so clearly establishes it that no other reasonable inference may be drawn therefrom. Dalrymple v. Sinkoe, 230 N.C. 453, 53 S.E.2d 437; Graham v. Atlantic Coast Line R. R., 240 N.C. 338, 82 S.E.2d 346. "Where the nature and attributes of the act relied on to show negligence, contributing to the injury, can only be correctly determined by considering all the attending and surrounding circumstances of the transaction, it falls within the province of the jury to pass upon and characterize it, and it is not for the court to determine its quality as a matter of law." Cooke v. Baltimore Traction Co., 80 Md. 551, 31 A. 327; Bethlehem Steel Co. v. Variety Iron & Steel Co., 139 Md. 313, 115 A. 59, 31 A.L.R. 1021; Dennis v. Gonzales, 91 Cal. App. 2d 203, 205 P.2d 55. This was such a case. It was ably and fairly tried by both judge and counsel. The jury, after considering all the surrounding circumstances, found that plaintiff's injuries were proximately caused by the negligence of the defendant and that plaintiff did not by his own negligence contribute to them.
In the trial below we find
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332340/ | 521 S.E.2d 564 (1999)
271 Ga. 504
MURRAY
v.
The STATE.
No. S99A1399.
Supreme Court of Georgia.
September 20, 1999.
*565 Martin H. Eaves, Waycross, for appellant.
Richard E. Currie, District Attorney, George E. Barnhill, Assistant District Attorney, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Daniel G. Ashburn, Assistant Attorney General, for appellee.
BENHAM, Chief Justice.
A jury found appellant Harry Felton Murray guilty of malice murder and felony murder in connection with the October 31, 1997 death of Carlette Brookshire, his former girlfriend. Appellant was sentenced to life imprisonment for malice murder after the felony murder conviction was vacated by operation of law. Malcolm v. State, 263 Ga. 369(4), 434 S.E.2d 479 (1993).[1]
On November 1, 1997, appellant's cousin found Ms. Brookshire's body, covered by a piece of cardboard in a wooded area near a shed on the grounds of his farm supply store where appellant occasionally worked. The victim had died from the crushing effect of 13 separate blows to her head and face, which blows had been inflicted by a heavy blunt instrument. The floor of the workshed had been soaked with mineral spirits, normally used by the store employees for cleaning purposes. Appellant had been drinking alcoholic beverages at the victim's home the evening before her body was found, and had gone to bed in the victim's room around 11:30 p.m. At 3:30 a.m., he had demanded that the victim, his ex-girlfriend, leave the living room where she was talking with another man, and enter her bedroom with appellant. The victim was not seen alive after that. Two hours later, appellant was seen using another cousin's washing machine to do his laundry, something that cousin had never known him to do before. The victim was reported missing by her adult daughter on November 1, after appellant had lied to the daughter about her mother's whereabouts. Prior to the victim's body being discovered later that day, appellant told his cousin who eventually discovered the body that he had argued with the victim and had struck her four times, knocking her off her feet and causing her to be "banged up a bit." After his arrest, appellant placed a collect call from the jail to the cousin who had found the body and, when the cousin opined that the way the victim had been killed was awful, appellant told him that it had been "quick."
1. Appellant contends his conviction cannot stand because the evidence of his guilt was entirely circumstantial and failed to exclude all reasonable hypotheses save that of his guilt. See OCGA § 24-4-6. He also maintains that his conviction should be set aside because the witnesses who testified against him were not credible. "[Q]uestions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law." Robbins v. State, 269 Ga. 500(1), 499 S.E.2d 323 (1998). "`Issues regarding the credibility of witnesses are in the sole province of the jury [and] ... only the jury may analyze what weight will be given each witness' testimony.'" Taylor v. State, 253 Ga. 727(1), 324 S.E.2d 460 (1985). After reviewing the trial transcript, we conclude that the evidence was sufficient to authorize a rational trier of fact to find appellant guilty of malice murder beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
*566 2. In his first enumerated error, appellant contends a witness was permitted to give highly prejudicial speculative evidence. The trial transcript shows that appellant's objections to the witness's testimony were sustained and appellant sought no further corrective action. "After an objection to an improper question or argument is sustained, there is no reversible error absent a request from the complaining party for further corrective action." Pye v. State, 269 Ga. 779(18), 505 S.E.2d 4 (1998).
3. Appellant also takes issue with the introduction into evidence of several photographs depicting the victim's body as it was found. Photos depicting the condition and location of the body as found are admissible over the assertion that they are prejudicial. Hance v. State, 254 Ga. 575(4), 332 S.E.2d 287 (1985). See also Sterling v. State, 267 Ga. 209(10), 477 S.E.2d 807 (1996).
4. Appellant contends that his cousin's testimony concerning the contents of appellant's jail-house call to the witness shortly after appellant's arrest should not have been allowed because, appellant believes, the witness did not tell the GBI of the conversation until four months after the fact. Pretermitting appellant's failure to object to the testimony at trial, we note that the witness testified that he informed the authorities telephonically of his conversation with appellant shortly after it occurred. Appellant admitted calling his cousin from jail, but disputed the contents of their conversation. Whether appellant said what his cousin said he said was a matter for the jury's determination, and we see no error in the admission of the testimony.
5. Lastly, appellant sees error in the admission into evidence of a note identified by the recipient, appellant's cousin, as having been written by appellant. The note was mailed to the recipient three-four weeks before trial, and could be construed as containing veiled threats to the well-being of the recipient/witness. The admission of evidence is committed to the sound discretion of the trial court, whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion. Baker v. State, 246 Ga. 317(3), 271 S.E.2d 360 (1980). Testimony that the note was written while appellant was incarcerated awaiting trial for this crime did not put his character into evidence, since evidence that a defendant has been incarcerated in connection with the crime for which the defendant is on trial does not place the defendant's character in issue. Ferrell v. State, 198 Ga.App. 270(3), 401 S.E.2d 301 (1991); Jackson v. State, 180 Ga.App. 363(3), 349 S.E.2d 252 (1986).
Judgment affirmed.
All the Justices concur.
NOTES
[1] The victim was killed on October 31, 1997, and an arrest warrant for appellant issued the same day. He was charged with committing malice and felony murder in an indictment returned March 17, 1998. The trial commenced December 15 and concluded December 17 with the jury's return of guilty verdicts. Appellant was sentenced to life imprisonment on December 18, and filed a motion for new trial on January 13, 1999. The motion was denied on April 1, and a notice of appeal was filed on April 29. The appeal was initially docketed in the Court of Appeals on May 21, 1999, and transferred to this Court where it was docketed on June 23. It was submitted for decision on briefs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332356/ | 521 S.E.2d 687 (1999)
239 Ga. App. 641
MILES
v.
SMITH.
No. A99A1445.
Court of Appeals of Georgia.
August 17, 1999.
*688 Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Christopher S. Brasher, Senior Assistant Attorney General, for appellant.
Ronald S. Smith, pro se.
BLACKBURN, Presiding Judge.
Sid Miles, the Commissioner of the Georgia Department of Public Safety, appeals the superior court's order reversing an administrative law judge's decision to suspend Ronald S. Smith's driver's license. Although the superior court found "no merit" to Smith's petition for review of the administrative decision, the court nevertheless reversed that decision because the ALJ "improperly admitted and considered hearsay evidence at trial."
1. As we have held:
A superior court, when reviewing a DPS decision, sits only as an appellate court. The decision of DPS shall be affirmed so long as there is "any evidence" to support it. Miles v. Carr, 224 Ga.App. 247, 480 S.E.2d 282 (1997); Bowman v. Palmour, 209 Ga.App. 270(1), 433 S.E.2d 380 (1993). The superior court "shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." OCGA § 50-13-19(h). Hardison v. Fayssoux, 168 Ga.App. 398, 401, 309 S.E.2d 397 (1983). When reviewing a superior court's order in a case under the Administrative Procedure Act, this Court's function "`is to determine whether the ... superior court has in (its) own final ruling committed an error of law.' (Cit.)" Miles v. Carr, supra; DeWeese v. Ga. Real Estate Comm., 136 Ga.App. 154, 155(1), 220 S.E.2d 458 (1975).
Miles v. Andress, 229 Ga.App. 86, 493 S.E.2d 233 (1997).
In this case, the superior court reversed the holding of the ALJ even though it determined that there was no merit to the claim, because hearsay evidence was admitted at the hearing. In a case where the factfinder is a judge, we assume the judge considers the evidence only for proper purposes and sorts out that which is admissible from that which is not. See Lyles v. State, 221 Ga.App. 560, 562(3), 472 S.E.2d 132 (1996); Foster v. Continental Cas. Co., 141 Ga.App. 415, 418(6), 233 S.E.2d 492 (1977). There must have been some admissible evidence to support the ALJ's decision. Where there was other admissible evidence supporting the holding, the "any evidence" standard requires that the case be affirmed. Reviewing this case under the standard set forth above, we find as follows:
In this case, DPS sought to suspend Smith's license by showing that he refused to submit to a state-administered alcohol test following his arrest for DUI. In reviewing Smith's driver's license suspension, the ALJ had to determine whether Smith had been under physical control of the car, whether Smith had been arrested for DUI, and whether, at the time of the request for the test or tests, that Deputy Tabb informed him of his implied consent rights and the consequence of submitting or refusing to submit to such tests. OCGA § 40-5-67.1; Miles v. Wells, 225 Ga.App. 698, 484 S.E.2d 720 (1997).
*689 The evidence presented at the administrative hearing showed that Deputy W.T. Tabb responded at 1:07 a.m. to the scene of a one-car accident and found Smith sitting in a ditch next to his overturned car. Smith told the deputy he was the only occupant in his car at the time of the incident. Deputy Tabb testified that Smith had minor injuries and refused treatment by the responding EMT. Also, Smith smelled of alcohol. Deputy Tabb read Smith the statutory implied consent warnings and asked Smith to submit to an Intoximeter 5000 alcohol test at the Grady County Sheriff's Department. Smith agreed. When they arrived at the sheriff's department, Deputy Tabb set up the Intoximeter 5000. Just as the deputy was ready to administer the test, Smith suddenly began complaining of chest pains. A responding EMT found nothing wrong with Smith, and Deputy Tabb attempted to administer the test a second time. Smith, however, grasped his back and legs and complained that he was in excruciating pain. Deputy Tabb testified that Smith told him he was not refusing to take the test but that he was expressing a need for medical attention. Just before they left for the hospital, Deputy Tabb suggested a blood-alcohol test be conducted at the hospital, and Smith agreed. When they arrived at the hospital emergency room at about 3:20 a.m., Deputy Tabb again read Smith his implied consent warnings and asked Smith if he would submit to a blood-alcohol test. Again, Smith agreed. However, when the hospital personnel arrived to take the blood sample, Smith told them that "they were not to treat him and were not to take anything out of his body or place anything in his body; and that he refused treatment and requested to be transferred to another hospital." When the deputy asked Smith if he was refusing the blood test, Smith said "no." However, when the hospital personnel attempted for the second time to take a blood sample, Smith refused to let them do it. Smith testified that he had not refused the test, but he had wanted to go to a hospital that could accommodate his rare blood type, because he thought he had internal bleeding. Deputy Tabb, however, was never told of this concern by either the hospital staff or by Smith.
At 4:18 a.m., Deputy Tabb gave Smith a citation for refusing the requested state-administered tests. Although the deputy gave Smith a breath test with an alco-sensor device, that test was requested by the doctor to determine whether Smith was too intoxicated to refuse medical treatment. The deputy testified that he never made any statement that would have led Smith to believe that the alco-sensor test was the State's designated choice in a requested blood-alcohol test. After receiving an x-ray, Smith went home. He never sought emergency treatment at another hospital for his feared internal bleeding.
In light of these facts, all of which are based upon Deputy Tabb's personal observations, we conclude that the ALJ's decision was supported by the evidence. See Miles v. Wells, supra. Although Smith never expressly said "I refuse to take your test," the ALJ was authorized to interpret Smith's actions as an effective refusal, especially since Smith's injuries were minor and his actions could be interpreted as manipulating events to delay the test until he had metabolized the alcohol in his system. Finally, the evidence to which Smith objected, Deputy Tabb's recounting of the eyewitness' statements that Smith was the sole occupant of the wrecked car, was harmless because it was highly improbable that it contributed to the ALJ's decision. Lyles v. State, supra.
2. Based on our decision in Division 1, DPS's remaining enumeration of error is rendered moot.
Judgment reversed.
BARNES and ELLINGTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332749/ | 161 Ga. App. 197 (1982)
291 S.E.2d 41
ROLAND
v.
THE STATE.
62838.
Court of Appeals of Georgia.
Decided January 18, 1982.
Rehearing Denied February 8, 1982.
Benson Ham, for appellant.
E. Byron Smith, District Attorney, Tommy K. Floyd, Assistant District Attorney, for appellee.
BIRDSONG, Judge.
Clinton Eugene Roland was charged with murder and convicted of the voluntary manslaughter of his stepfather. Roland returned to his mother's home from fishing at about 10:30 p. m. on July 1, 1980. He found his sister and his stepfather watching television in the same room in which Roland slept. He commenced to take off his boots and asked his sister who had moved his car which had had a flat tire. Roland's stepfather stated that he had moved the car and challenged Roland to do something about it. The stepfather (Anderson) then attacked Roland who was seated by kneeling in Roland's lap and striking him about each temple. Roland's sister and his mother, who had been called to the scene, pulled the stepfather off Roland and apparently believed the altercation was finished. The stepfather however resumed the attack and apparently struck Roland in the back of the head and at the corner of his left eye with a hard object which may have been a claw hammer. Once again the two women broke up the altercation. The stepfather demanded that Roland leave and the stepfather also left the room. Roland and his sister walked out to Roland's car but Roland stated to his sister that he had something to say to his mother. Roland came back into the house just as the stepfather returned to the room. It appears that Roland had *198 armed himself with a pistol and when the stepfather entered the television room from the kitchen, Roland fired the pistol. There was evidence that this round harmlessly struck a wall. The stepfather however began to advance on Roland who then shot several more times striking the stepfather. The autopsy report indicated that the victim was struck by at least three bullets. Two of these entered the body from the rear and one of these (in the back of the head) appeared to have been fired while the victim was on the floor or falling towards the floor. Appellant following his conviction for voluntary manslaughter brings this appeal enumerating twenty alleged errors. Held:
1. In his first enumeration of error, Roland complains that the trial court erred in allowing the state to introduce impeaching testimony of its own witness, appellant's sister. The sister gave a statement to a police officer on the night of the shooting which was substantially different from her testimony at trial. The state made a showing of surprise and offered the evidence for impeachment purposes only. We find no error. Thomas v. State, 239 Ga. 734, 735 (3) (238 SE2d 888); Robinson v. State, 150 Ga. App. 642, 643 (3) (258 SE2d 294).
2. Appellant in his second enumeration contends error in the admission of three pictures of the deceased. The basis of this enumeration is that the pictures were never properly identified as being accurate representations of what they portrayed. The evidence is to the contrary. The doctor who performed the autopsy identified the body, the pictures and the purpose for which the pictures were made, i.e., to depict the trajectory and angle of entry of the wounds. Johnston v. State, 232 Ga. 268, 270 (1) (206 SE2d 468); Adams v. State, 142 Ga. App. 252, 254 (5) (235 SE2d 667). There was no error in the admission of these pictures.
3. In enumerations 3 and 4, Roland argues the trial court erred in refusing the defense counsel the right to refer to "the hammer" as an item of evidence. Again we find the action of the trial court to be proper. The hammer, as such, was not offered or allowed into evidence but the trial court did not preclude defense counsel from arguing that the hard object with which Roland says he was struck might have been a hammer. The trial court has the right and duty to govern the procedures and scope of argument at trial. We find no error in this restraint imposed upon the defense. See Bradley v. State, 137 Ga. App. 670, 673 (8) (224 SE2d 778).
4. In enumerations 5, 6, 7, 8, 9, 11, 12, and 18, appellant complains of charges given by the trial court relating to the direct and circumstantial evidence, credibility and impeachment of witnesses, weight to be attached to photographs, definitions of malice, *199 voluntary manslaughter, and self-defense. In his discussion of these various charges, appellant isolates sentences and portions of charges. By so doing, he takes the individual portions of the charge out of context. When viewed alone, these may be confusing or misleading but when viewed as a part of the entire charge, we find they were raised by the evidence, stated correct principles of law and could not have confused a jury of average understanding. We find no error in any of these charges. See Brown v. Matthews, 79 Ga. 1 (4 S.E. 13); Merritt v. State, 110 Ga. App. 150, 153 (137 SE2d 917).
5. Enumerations 19 and 20 urged error in the failure of the trial court to charge either of the statutory forms of involuntary manslaughter. We find no error in this failure to charge. In the first place, appellant did not request a charge on the lesser offense of involuntary manslaughter. In the absence of such a request, it is not error to fail to give such a charge. Smith v. State, 236 Ga. 5, 10 (6) (222 SE2d 357); Jones v. State, 138 Ga. App. 828, 830 (227 SE2d 519). Moreover, appellant offered no evidence giving rise to involuntary manslaughter. By his evidence, he either intentionally shot the victim in self-defense with a deadly weapon, which was not the doing of a lawful act in an unlawful manner or he intended to scare Mr. Anderson by shooting at or near him, thereby committing an unlawful act amounting to a felony which resulted in death. The thrust of his defense was that he intended to scare his stepfather and did not intend to kill him and that the homicide was an accident. The trial court fully charged on this theory. Merritt v. State, supra.
6. In Enumeration 10, appellant argues that the trial court erroneously charged the jury to receive appellant's statement with caution. The error proceeds, according to appellant, from the confusion between a pre-trial statement offered against him and his sworn statement as a witness. Considering the charge of the court as a whole, we will not place such an inability to discern the two portions of the court's charge relating to the out-of-court statement and the in-court testimony. We find this portion of the charge to be sufficiently clear and without error. Merritt v. State, supra, p. 153.
7. In Enumerations 13, 14, 15, and 16, appellant complains the trial court erred in charging on the theory of mutual combat. We reject such a contention out of hand. The evidence was ample to raise an issue of whether Roland and his stepfather mutually assaulted each other with deadly weapons. In its charge, the trial court fully charged the issue of mutual combat, withdrawal from mutual combat, and excusal from the resulting homicide based on self-defense. It would have been error had the trial court not charged on this issue. Powell v. State, 143 Ga. App. 684, 686 (239 SE2d 560). We find no error in these enumerations.
*200 8. In enumeration no. 17, appellant urges error in the charge on self-defense. We find no error in this charge. It is immaterial whether an issue of self defense is raised by the state's evidence or through that of the defendant. In this case the trial court informed the jury that once the issue was raised, the burden of proof was upon the state to establish that the homicide was unlawful and not the product of an act of self-defense. We find no error in this charge by the trial court. Franklin v. State, 136 Ga. App. 47, 48 (2) (220 SE2d 60).
Judgment affirmed. Shulman, P. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332849/ | 127 Ga. App. 532 (1972)
194 S.E.2d 335
BIRT
v.
THE STATE.
47420.
Court of Appeals of Georgia.
Argued September 6, 1972.
Decided November 14, 1972.
Quillian & Quillian, Alfred A. Quillian, for appellant.
Nat Hancock, District Attorney, for appellee.
EVANS, Judge.
The defendant was indicted, tried and convicted of theft by receiving stolen property. Motion for new trial was filed, amended and overruled. The appeal is from the judgment and sentence. Held:
*533 Counsel for defendant was employed on Friday, February 18, 1972 (replacing previous counsel) and obtained a continuance until the following Monday. On Monday, February 21, 1972, he filed a special demurrer. The court suggested that the demurrer was too late as the defendant had been arraigned the week before, on February 14, 1972, which was the proper time for filing said demurrer. He refused to consider the demurrer for that reason. It is stated in the brief of State's counsel that counsel first employed by defendant "did announce ready for trial and waive formal arraignment" on February 14, 1972. If this contention is correct then the demurrer filed by counsel last employed was too late. The point thus becomes of such importance that this court has caused the clerk of the lower court to send up certified copies of the clerk's minutes of the proceedings in court as of February 14, 1972, and February 21, 1972. This record does not show that original counsel for defendant waived arraignment, but shows that his present counsel filed a demurrer to the indictment, before pleading thereto, on the 21st day of February, 1972.
Code § 24-2714, as amended, provides as to duties of clerks of superior courts: "To attend all sessions of the courts and keep fair and regular minutes of their proceedings from day to day, including a transcript of the judge's entry on his docket when not more fully shown in a book kept for that purpose." The Clerk of Superior Court of Barrow County is a public officer and all public officers are presumed to discharge properly the duties of their office. See Truluck v. Peeples, 1 Ga. 3, 5; Benton v. Maddox, 56 Ga. App. 132 (192 SE 316); Town of McIntyre v. Scott, 191 Ga. 473, 476 (12 SE2d 883). Thus, the record which has been forwarded by the clerk to this court is presumed to speak with verity. Burger v. Dobbs, 87 Ga. App. 88, 92 (73 SE2d 75); Winn v. Armour & Co., 184 Ga. 769, 772 (193 SE 447).
Further, besides a failure of the clerk's records to show that there was an arraignment on the 14th day of February, *534 1972, said records affirmatively show that there was no such arraignment on that date. On the clerk's court calendar for February 14, 1972, there is listed the name of Billy Sunday Birt, charged with theft by taking. Opposite his name appear the initials "B. F. & B. W." The Clerk certifies "that the notations of `B. F. & B. W.' after the names of defendants indicates the announcement of the court at time of call of the arraignment calendar that bonds be forfeited and bench warrant issue." In other words, the defendant, Birt, was not present in court at the time, resulting in his bond forfeiture and a bench warrant being issued for his arrest.
Therefore, we find that the demurrer was timely filed, on the 21st day of February, 1972, as there had been no prior arraignment.
Code § 27-1501 provides: "If the prisoner, upon being arraigned, shall demur to the indictment, or plead to the jurisdiction of the court, or in abatement, or any special plea in bar, the demurrer or plea shall be made in writing; and if such demurrer or plea shall be decided against the prisoner, he may nevertheless plead and rely on the general issue of `not guilty.'"
The trial court should have considered the special demurrer. The mere call of the case is not a formal arraignment. It has long been the law in this State that demurrers, pleas and answers must be disposed of in that order; and it is error to proceed with the trial where demurrers or pleas remain for consideration. See Code § 27-1501; Smith v. Hornsby, 70 Ga. 552 (2); Vaughan v. Farmers & Merchants Bank, 20 Ga. App. 725 (1) (93 SE 228); Kennedy v. Bateman, 217 Ga. 458, 463 (123 SE2d 656). While the foregoing cases deal with civil practice the same law applies with equal force to criminal practice. See Code § 27-1501.
There was no waiver here of the demurrer. Although the trial court's ruling in refusing to hear the demurrer resulted from his mistaken impression that arraignment had been previously waived, it was error to refuse to rule *535 on the demurrer. This rendered nugatory all further proceedings in the case.
Judgment reversed. Bell, C. J., and Stolz, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1663241/ | 261 S.W.3d 749 (2006)
LMC COMPLETE AUTOMOTIVE, INC., Appellant,
v.
Ronald BURKE, Appellee.
No. 01-06-00694-CV.
Court of Appeals of Texas, Houston (1st Dist.).
August 31, 2006.
Clifford L. Harrison, Harrison, Bettis, Staff, McFarland & Weems, L.L.P., Houston, for Appellant.
John C. Hampton, D. Matthew Freeman, Matt Freeman & Associates, Houston, for Appellee.
Panel consists of Justices KEYES, ALCALA, and BLAND.
ORDER
PER CURIAM.
Appellant LMC Automotive, Inc., has filed an emergency motion requesting that our court waive the security required to suspend enforcement of the judgment on appeal from the trial court in the above-referenced cause. See TEX.R.APP. P. 24. Our court expedited consideration of the motion and requested a response. After reviewing the motion, the response, and the attached exhibits, we conclude that LMC has not demonstrated that it is entitled to relief. LMC did not provide a copy of the trial court's order denying its request for a bond reduction, nor did it provide a record of the evidentiary hearing on the motion that took place in the trial court. Thus, we have an insufficient basis upon which to review the trial court's decision. See TEX.R.APP. P. 24.4 (providing for appellate review of the trial court's order). In addition, LMC makes no showing that posting a bond to secure the judgment would cause it "substantial economic harm," as required under the rule governing supersedeas bond reductions. See TEX. R.APP. P. 24.2(b).
Accordingly, the motion to waive security to suspend enforcement of the judgment is DENIED.
It is so ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332267/ | 218 Ga. 284 (1962)
127 S.E.2d 379
KENDRICK
v.
KENDRICK.
21769.
Supreme Court of Georgia.
Argued September 11, 1962.
Decided September 18, 1962.
H. Briscoe Black, for plaintiff in error.
Wavelyn E. Smith, contra.
CANDLER, Justice.
The parties to this litigation were divorced in the Superior court of Meriwether County on February 15, 1959. Custody of their minor son was awarded to the mother. A contract between the parties for the support and maintenance of their minor child was approved by the court and made a part of the final judgment. Such contract obligated and the judgment required the father to pay the mother as child support $100 per month until such child reached 18 years of age. It awarded no alimony to the wife. On February 22, 1961, Mrs. Kendrick filed a petition in the same court seeking an upward revision and modification of the judgment which fixed the amount of child support payable to her each month. Her petition alleges a substantial change for the better in his income and financial status since the judgment awarding child support was rendered. A general demurrer which Mr. Kendrick interposed was overruled and there is an exception to that judgment. On the trial and after the parties had introduced all of their evidence, the jury returned the following verdict: "We, the jury, find in favor of the plaintiff and our verdict is: (1) That $100 payments now being made be voided; (2) That defendant pay $35 per week for child support until child reaches age 18; (3) That trust fund be set up to provide for child's college education as follows: (1) Lump sum of $500 be paid *285 in now; (2) Payments of $50 per month to trust fund until child reaches age 18; (3) That trust fund be administered by court-appointed administrator; and (4) That trust fund be made available to child at age 18 for college education only.
If he desires not to go to college, funds will be withheld until child is 21, at which time he will have power to dispose of or use as he so desires." A decree following the verdict was entered on March 1, 1962. The defendant moved for a new trial on the usual general grounds and later amended it by adding 7 special grounds. His amended motion was overruled and he excepted to that judgment. Held:
1. Since the petition clearly alleges a substantial change for the better in the defendant's income and financial status after the judgment awarding child support was rendered on February 15, 1959, there is no merit in the contention that the court erred in overruling a general demurrer to it.
2. Code § 30-207 provides that a verdict and judgment awarding support for a minor child shall specify what amount such child shall be entitled to for its permanent support; and in what manner, how often, to whom, and until when it shall be paid. Prior to the approval of an act which the legislature passed in 1955 (Ga. L. 1955, p. 630), there was no statute in this State which authorized or empowered the courts to revise and modify in any respect a permanent judgment for alimony or a permanent award for the support of a minor child or children. Roberson v. Roberson, 210 Ga. 346 (1) (80 SE2d 283); and Etheridge v. Echols, 212 Ga. 597 (94 SE2d 377). But by the cited act the court which had rendered such a judgment was authorized and empowered to revise and modify it, either downward or upward where there had been a substantial change in the income or financial status of the husband or father. Such act expressly provides that on the hearing of an application either by the husband or the wife to revise and modify such a judgment, the merits of whether the wife or child or children, or both, are entitled to alimony and support are not in issue, "but only whether there has been such a substantial change in the income and financial status of the husband as to warrant either a downward or upward revision and modification of the permanent alimony judgment." It is settled by many decisions of this court that where the language of a statute is plain and *286 unambiguous, no occasion for construction exists and it must be taken to mean what it clearly expresses and the courts have nothing to do but enforce it. Nixon v. Nixon, 196 Ga. 148, 155 (26 SE2d 711); Bibb County v. Hancock, 211 Ga. 429, 438 (86 SE2d 511); and Anderson v. Cooper, 214 Ga. 164, 166 (104 SE2d 90). It seems clear to us and we hold that the act of 1955 conferred authority and power on the court rendering an alimony or child support judgment to revise and modify it either downward or upward where a substantial change in the income and financial status of the husband was alleged and proven and in no other respect. This being true, the jury in this case had no legal authority to find a verdict upon which a valid judgment could be entered which revised and modified the original child support judgment in any respect except as to the amount it required the defendant to pay the plaintiff each month for the support of their minor child. Since this disposes of the controlling question in this case, it is unnecessary to pass on other questions posed by the record.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332433/ | 643 S.E.2d 607 (2007)
Edward S. BAUM and Ann F. Baum, Plaintiffs,
v.
JOHN R. POORE BUILDER, INC.; Peter J. Verna, P.E.; and C.S. Brown Tile & Marble, Inc., Defendants.
No. COA06-636.
Court of Appeals of North Carolina.
May 1, 2007.
Nexsen Pruet Adams Kleemeier, PLLC, by David S. Pokela, Greensboro, and Richard W. Wilson, Charlotte, for Plaintiffs-Appellants.
Clawson & Staubes, PLLC, by Michael J. Kitson, and James McElroy & Diehl, by Gary Hemric, Charlotte, for Defendant-Appellee John R. Poore Builder, Inc.
Joe T. Millsaps for Defendant-Appellee Peter J. Verna.
DeVore, Acton & Stafford, P.A., by Fred W. DeVore, III, Charlotte, for Defendant-Appellee Brown Tile & Marble, Inc.
STEPHENS, Judge.
I. FACTUAL AND PROCEDURAL BACKGROUND
On 20 March 1995, Plaintiffs and John R. Poore Builder, Inc. ("Defendant Poore") entered into an agreement by which Defendant Poore "agreed to perform and furnish to [Plaintiffs] certain labor, materials, equipment, services, and supervision in connection with the design and construction of a house and other improvements" on Plaintiffs' property. Disagreements arose regarding the fulfillment of this contract and, through an agreement entered 29 June 1998, Plaintiffs and Defendant Poore resolved "certain claims, disputes, [and] disagreements between them[.]" By the 29 June 1998 contract, Defendant Poore agreed, inter alia, "to finish construction of the deck at the rear of [Plaintiffs'] house . . . in accordance with plans and specifications prepared by Pete Verna, P.E." ("Defendant Verna"). The deck was completed sometime in the fall of 1998. The design and construction of the deck, which borders a swimming pool on Plaintiffs' property, is the subject of this litigation.
By letter dated 17 December 1998, Defendant Verna communicated to Plaintiffs that he "prepared and [is] responsible for the plans and specifications for the deck at the rear of [Plaintiffs'] house," that "the plans and specifications which [he] prepared for the deck are sufficient for the intended purposes . . . [and] the pool walls are structurally *609 sound[,]" and that he "monitored and inspected the progress of the construction of the deck . . . and certif[ied] that . . . the improvements . . . have been constructed in a manner consistent with the plans and specifications[.]"
In June 2000, Plaintiffs noticed that some tiles on the deck were beginning to crack. They subsequently contacted Defendant Poore, who instructed them to call the company that installed the tiles, C.S. Brown Tile & Marble, Inc. ("Defendant Brown Tile"), to replace the tiles. In an affidavit, Ms. Baum averred that Joe from "Brown Tile replaced the cracked tiles . . . [and] assured [her] that there were no structural problems that caused the cracked tiles. However, [Joe] did recommend purchas[ing] extra tiles since some tiles . . . would crack in the future as a result of ordinary wear and tear[.]"
In the summer of 2002, Plaintiffs again noticed that certain tiles on the deck were beginning to crack. During the same period, Plaintiffs engaged the services of a painter to provide an estimate for painting a section of the deck where the paint had begun to peel. The painter examined that section of the deck and told Ms. Baum he suspected that excessive moisture from the deck or pool was causing the damage to the paint. He recommended having the pool and deck inspected.
Plaintiffs again contacted Defendant Brown Tile to repair the cracked tiles and, based on the painter's recommendation, asked Defendant Brown Tile to investigate the suspected moisture problem. Joe from Defendant Brown Tile informed Plaintiffs that they would have to pay to replace the cracked tiles, but said that before the tile work was done, he wanted his brother Chris Brown from Brown Tile to inspect the pool and deck. Plaintiffs tried to contact Chris Brown to schedule an appointment to have the pool and deck inspected, but Chris Brown failed to return their calls. In September 2003, after failing in their efforts to obtain a full inspection of the deck and pool from Defendant Brown Tile, Plaintiffs contacted Rea Brothers, Inc. ("Rea Brothers"), a construction company based in Charlotte, to perform the inspection. Upon completing the inspection, Rea Brothers informed Plaintiffs "that the tile problems were the product of serious structural defects [in the design and construction of the deck]."
On 8 September 2004, Plaintiffs filed a complaint against Defendant Poore, alleging causes of action for breach of contract and negligence, and against Defendants Verna and Brown Tile, alleging negligence. On 26 August 2005, Defendant Brown Tile moved for summary judgment, claiming that Plaintiffs' claims were barred by the statute of limitations. Similarly, on 6 September 2005, Defendant Verna moved for summary judgment on the same ground. Following a hearing, the Honorable Yvonne Mims-Evans denied each Defendant's motion.[1] Plaintiffs then discovered and tendered to all Defendants additional documents regarding the construction of the deck. After receiving this new information, on 24 October 2005, Defendant Poore moved for summary judgment relying on the statute of limitations.
On or about 22 November 2005, Judge Mims-Evans heard the matter on motion of all Defendants for reconsideration of her previous denial of summary judgment. By judgment entered 12 December 2005 and "[a]fter consideration of . . . newly discovered evidence, and a supplemental affidavit of Ann F. Baum dated November 10, 2005 tendered by the plaintiff," Judge Mims-Evans ruled "that the motions for summary judgment of the defendants should be granted."[2] The "newly discovered evidence" included "a report from building inspector, R.D. McClure, dated July 3, 1997 and three handwritten documents[.]"
On 22 December 2005, Plaintiffs moved to amend the trial court's judgment. In support of this motion, Plaintiffs filed a supplementary affidavit of Ms. Baum providing an explanation of the content of the three handwritten *610 documents introduced at the summary judgment hearing. By order entered 11 January 2006, the trial court "received . . . and accepted [the supplementary affidavit] as a part of the record in this action as explanation of the record or record on appeal or clarification of the record; however, said Affidavit was not substantively considered by the Court in making its decision on Defendants' Motion at the Hearing on November 22, 2005."[3] Plaintiffs appeal from the 12 December 2005 judgment granting summary judgment in favor of all Defendants and from the 11 January 2006 "Order Clarifying Judgment." For the reasons stated herein, we reverse.
II. STATUTE OF LIMITATIONS
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2005).
A defendant who moves for summary judgment bears the burden of establishing that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law. A defendant may meet this burden by "(1) proving that an essential element of plaintiff's claim is nonexistent, or (2) showing through discovery that plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that plaintiff cannot surmount an affirmative defense which would bar the claim."
Crawford v. Boyette, 121 N.C.App. 67, 69-70, 464 S.E.2d 301, 303 (1995) (quoting Watts v. Cumberland County Hosp. System, Inc., 75 N.C.App. 1, 6, 330 S.E.2d 242, 247 (1985) (citation omitted), rev'd on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986)), cert. denied, 342 N.C. 894, 467 S.E.2d 902 (1996). When the affirmative defense of the statute of limitations has been pled, "the burden is on the plaintiff to show that his cause of action accrued within the limitations period." Crawford, 121 N.C.App. at 70, 464 S.E.2d at 303 (citing Hooper v. Carr Lumber Co., 215 N.C. 308, 1 S.E.2d 818 (1939)). On appeal from an order granting summary judgment, our standard of review is de novo, and we view the evidence in the light most favorable to the non-movant. Broughton v. McClatchy Newspapers, Inc., 161 N.C.App. 20, 588 S.E.2d 20 (2003).
In the case at bar, Plaintiffs' cause of action for breach of contract against Defendant Poore is governed by a three-year statute of limitations. N.C. Gen.Stat. § 1-52(1) (2003). Likewise, Plaintiffs' cause of action alleging negligence against Defendants Poore, Verna, and Brown Tile is subject to a three-year statute of limitations. N.C. Gen. Stat. § 1-52(5) (2003). Under North Carolina law, for "physical damage to claimant's property, the cause of action . . . shall not accrue until . . . physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs." N.C. Gen. Stat. § 1-52(16) (2003). Therefore, in this case, Plaintiffs had three years from the time the damage to their deck became apparent or reasonably should have become apparent in which to bring their causes of action against Defendants. See The Asheville School v. D.V. Ward Constr., Inc., 78 N.C.App. 594, 337 S.E.2d 659 (1985) (addressing the statute of limitations in actions alleging breach of contract), disc. review denied, 316 N.C. 385, 342 S.E.2d 890 (1986); see also Howell v. City of Lumberton, 144 N.C.App. 695, 548 S.E.2d 835 (2001) (addressing the statute of limitations in actions alleging negligence).
In Everts v. Parkinson, 147 N.C.App. 315, 319, 555 S.E.2d 667, 670 (2001) (quoting Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985) (citations omitted)), this Court recognized that
"the question of whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. However, when the bar is properly pleaded and the facts are admitted or are not in conflict, *611 the question of whether the action is barred becomes one of law, and summary judgment is appropriate."
"When, however, the evidence is sufficient to support an inference that the limitations period has not expired, the issue should be submitted to the jury." Hatem v. Bryan, 117 N.C.App. 722, 724, 453 S.E.2d 199, 201 (1995) (citations omitted).
The parties before us do not contest that Plaintiffs had three years in which to bring their claims for breach of contract and negligence against Defendants, or that the three-year period did not begin to run until Plaintiffs became aware or reasonably should have become aware of the damage to their property. At issue is whether there are genuine issues of material fact as to when Plaintiffs knew or reasonably should have known about the damage to their deck, such that the evidence was sufficient on the question of when the three-year statute of limitations began to run to submit the issue to a jury for determination.
Plaintiffs argue that the damage did not become apparent nor should it reasonably have become apparent until September 2003 when they received a report from Rea Brothers documenting serious structural defects in the completed deck. To support this contention, Plaintiffs submitted to the trial court an affidavit of Ms. Baum, filed 3 October 2005, stating:
I contacted Rea Brothers, Inc., . . . in September 2003 to inspect the deck and pool. After inspections were performed, Rea Brothers notified me that the tile problems were the product of serious structural defects. This was the first time my husband or I had any notice that the deck may have the design defects and/or construction defects for which this lawsuit has been brought.
Plaintiffs also argue, supported by the same affidavit, that they became aware of or reasonably should have been aware of the damage to their deck at the earliest in the summer of 2002, when a painter suggested that excessive moisture coming from the deck or pool was causing the damage at issue. If either of these two contentions is accepted as the truth regarding Plaintiffs' knowledge or discovery of the damage to their property, Plaintiffs' complaint, filed 8 September 2004, is timely under the applicable statutes of limitations.
Defendants, on the other hand, contend that Plaintiffs were aware or reasonably should have become aware of the damage on 3 July 1997 when they received a report from R.D. McClure documenting design and structural flaws in the deck,[4] or no later than June 2000 when they first noticed cracked ceramic tiles on the deck. Plaintiffs, however, contend that the 3 July 1997 report from McClure was delivered to them before the completion of the deck, and the concerns raised in the report were resolved by the 29 June 1998 agreement they reached with Defendant Poore. Additionally, with regard to the cracking of tiles in June of 2000, Plaintiffs argue that when they contacted Defendant Poore to have the tiles repaired or replaced, Defendant Poore directed them to Defendant Brown Tile, and Chris Brown's brother, Joe, assured Plaintiffs that there "were no structural problems that caused the cracked tiles."
Based on Plaintiffs' allegations as to when they gained their knowledge and viewing the evidence submitted to the trial court in the light most favorable to their position, it is clear that at least an inference can be drawn that the limitations period had not expired before Plaintiffs filed their lawsuit, and that, *612 consequently, the issue is for the jury to determine. See Hatem, supra. Accordingly, we conclude that the trial court erred in granting summary judgment based on the expiration of the statutes of limitations. The judgment granting summary judgment for Defendants and order clarifying judgment are therefore reversed.
III. STATUTE OF REPOSE, EQUITABLE ESTOPPEL, AND DEFENDANT BROWN TILE'S CROSS-ASSIGNMENT OF ERROR
In their briefs to this Court, all parties address the statute of repose and its applicability to the facts of this case. In their respective answers to Plaintiffs' complaint, each Defendant properly pled the statute of repose as an affirmative defense. However, in none of Defendants' individual motions for summary judgment was the statute of repose raised. Additionally, it is unclear from the settled record on appeal, or the portion of the summary judgment hearing transcript included as part of the record,[5] whether the statute of repose was argued before the trial court. Accordingly, we decline to address the applicability of the statute of repose to this case. See Griggs v. Shamrock Bldg. Servs., Inc., ___ N.C.App. ___, ___, 634 S.E.2d 635, 640 (2006) (holding that this Court does "not address arguments in favor of granting summary judgment that were not presented to the trial court") (citing McDonald v. Skeen, 152 N.C.App. 228, 567 S.E.2d 209, disc. review denied, 356 N.C. 437, 571 S.E.2d 222 (2002)).
Similarly, in their brief to this Court, Plaintiffs argue that summary judgment was improper because all Defendants should be equitably estopped from relying on the statute of limitations or the statute of repose. Again, neither in the documents submitted as part of the settled record on appeal, nor in the portions of the transcript made available for this Court to review, is it clear that equitable estoppel was argued before the trial court. Consequently, we will not address the application of this legal principle to this case. See id.
Finally, Defendant Brown Tile individually cross-assigns as error the trial court's failure to grant summary judgment in its favor based on "the additional grounds that it was not responsible for the structure of the alleged defective deck." As discussed above, Defendant Brown Tile's motion for summary judgment was based solely on the statute of limitations. Additionally, the record before this Court does not reflect whether Defendant Brown Tile made this particular argument at the summary judgment hearing before the trial court. Accordingly, we will not address this argument on appeal. See id.
IV. SUPPLEMENTAL AFFIDAVIT SUBMITTED BY PLAINTIFF
Finally, Plaintiffs contend that the trial court committed reversible error by failing to substantively consider Ms. Baum's supplementary affidavit filed 22 December 2005 in connection with Plaintiffs' motion to amend the summary judgment order. Because we reverse the trial court's grant of summary judgment in favor of all Defendants, it is unnecessary to address the merits of this argument.
For the reasons stated, the judgment and order clarifying judgment of the trial court are
REVERSED.
Judges TYSON and STROUD concur.
NOTES
[1] The initial order denying summary judgment was not included in the record on appeal. Therefore, we are unable to determine if Judge Mims-Evans based her decision on anything other than the statute of limitations.
[2] The order granting summary judgment did not identify the ground upon which Judge Mims-Evans relied in reaching her decision.
[3] Once again, this order "clarifying" the order granting summary judgment did not explain the basis upon which summary judgment was granted.
[4] The exterior walls of Plaintiffs' home were constructed with synthetic stucco systems ("EIFS"). When Plaintiffs became concerned about the EIFS used on the exterior of their house, they contacted R.D. McClure to inspect their home. In addition to an EIFS evaluation, in his report McClure expressed to Plaintiffs that the design and structure of their deck (which had not been completed at that time) concerned him. According to Ms. Baum's affidavit filed 22 November 2005, when Plaintiffs approached Defendant Poore regarding the deck issues that the McClure report brought to their attention, Defendant Poore attempted to discredit McClure, telling Plaintiffs that "Mr. McClure was not even licensed as a general contractor in North Carolina[.]" Defendant Poore also calmed Plaintiffs' fears by telling them "that the plans for the deck had been or would be prepared by an engineer, that the plans were sound, and that the plans would work."
[5] Although the summary judgment hearing held 22 November 2005, which formed the basis of the order from which Plaintiffs appeal, was recorded and transcribed, the parties could not reach an agreement regarding the portions of the hearing transcript to be included in the record on appeal. Therefore, by order entered 26 April 2006, Judge Mims-Evans settled the record on appeal and limited the portions of the summary judgment hearing transcript that is available for our review. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332574/ | 521 S.E.2d 562 (1999)
271 Ga. 507
SMITH
v.
The STATE.
No. S99A1421.
Supreme Court of Georgia.
September 20, 1999.
*563 J. Robert Joiner, Atlanta, for appellant.
Paul L. Howard, District Attorney, Bettieanne C. Hart, Elizabeth A. Baker, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, Jeanne K. Strickland, Assistant Attorney General, for appellee.
HUNSTEIN, Justice.
Roderick R. Smith, Jr. was convicted of felony murder and aggravated assault in the shooting death of Abubeker Ebro Ali and was sentenced to life imprisonment. He appeals from the denial of his motion for a new trial.[1]
1. The evidence adduced at trial authorized the jury to find that around 5:00 a.m. on September 15, 1996, Ali, the night manager of an Atlanta convenience store, ordered two men out of the store who were trying to sell crack cocaine. An hour later, appellant entered the store and began to argue with Ali. Ali exited the protected cubicle around the cash register, carrying a baseball bat which he held in the middle. The only other customer inside the store overheard Ali telling appellant that he "[didn't] want to be bothered." The customer then heard gunshots. Another witness testified he was crossing the street when he noticed appellant outside the store while Ali was in the store's doorway; the witness first heard gunshots, saw Ali fall and appellant lean inside the door, and then heard more gunshots; and the witness then saw appellant fleeing the scene holding something silver in his hands. Ali died from a gunshot, fired at close range, that entered the right side of his face and neck and traveled through his chest and arm. That evening, appellant told a friend he killed Ali because the victim was going to call the police to report Smith for selling drugs outside the store.
We find this evidence sufficient to authorize a rational trier of fact to find appellant guilty of felony murder and aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. We find no error in the trial court's refusal to give appellant's requested charge on voluntary manslaughter. The trial court charged the jury regarding self-defense. Even assuming, arguendo, that the victim's behavior in approaching appellant with a bat constituted "serious provocation," there is no evidence that appellant was "so influenced and excited that he reacted passionately rather than simply in an attempt to defend himself." (Footnote omitted.) Worthem v. State, 270 Ga. 469, 471, 509 S.E.2d 922 (1999). Accordingly, no charge on voluntary manslaughter was authorized here. Id.
3. Appellant contends the trial court committed reversible error by denying his motion for a mistrial after a witness, in an unresponsive answer to a question on cross-examination, stated that appellant was a "cold-blooded killer." The trial court gave detailed curative instructions to the jury in which it cautioned the jury that the witness was called to testify to his observations, not his opinions, and instructed the jury to disregard the comment the witness tacked onto his observations. Further, the jury acquitted *564 appellant of malice murder and convicted instead on felony murder. "Given the trial court's curative efforts, the inadvertent nature of the witnesses' remarks, and the lack of apparent prejudice, we find no abuse of discretion in the denial of [appellant's] motion[ ] for mistrial." James v. State, 270 Ga. 675, 677(4), 513 S.E.2d 207 (1999).
Judgment affirmed.
All the Justices concur.
NOTES
[1] The crimes occurred on September 15, 1996. Smith was indicted February 7, 1997 in Fulton County. He was found guilty on February 20, 1998 of felony murder and aggravated assault; he was sentenced that day to life imprisonment on the felony murder and ten years concurrent on the aggravated assault. The trial court subsequently merged the aggravated assault conviction with the felony murder conviction. Smith's motion for new trial, filed March 17, 1998, was amended and denied on January 25, 1999. A notice of appeal was filed January 26, 1999. The appeal was docketed on June 24, 1999 and was submitted for decision on the briefs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332453/ | 521 S.E.2d 47 (1999)
239 Ga. App. 336
In the Interest of N.B. et al., children.
No. A99A1525.
Court of Appeals of Georgia.
July 15, 1999.
Reconsideration Denied July 28, 1999.
*48 William D. Patten, Jr., Stockbridge, for appellant.
Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Robert E. Hall, Atlanta, James T. Chafin III, McDonough, for appellee.
JOHNSON, Chief Judge.
The mother of N.B. and R.B. appeals from a juvenile court order terminating her parental rights.[1] She contends the trial court erred in determining that she failed to comply with case goals, that the cause of the children's deprivation is likely to continue or will not likely be remedied, and that there was no suitable alternative placement for the children within the family. We affirm *49 the trial court's order with respect to the mother's first two arguments and find the trial court properly terminated the mother's parental rights. However, we reverse and remand the case with direction that the juvenile court, in conjunction with the Department of Human Resources, evaluate the possibility of placing the children with their paternal grandfather.
On appeal, we view the evidence in a light most favorable to the juvenile court's order and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent's rights should have been terminated; we do not weigh the evidence and must defer to the trial judge as the factfinder. In the Interest of D.L.N., 234 Ga.App. 123, 125(2), 506 S.E.2d 403 (1998). We find no error and affirm the decision of the juvenile court.
The decision to terminate parental rights involves a two-step process. First, the juvenile court must determine whether there is clear and convincing evidence of parental misconduct or inability. Parental misconduct or inability is found when the child is deprived, the cause of the deprivation is lack of proper parental care or control, the cause of the deprivation is likely to continue or will not likely be remedied, and the continued deprivation will cause or is likely to cause serious harm to the child. OCGA § 15-11-81(b)(4)(A).
Second, if the juvenile court finds clear and convincing evidence of parental misconduct or inability, it must consider whether termination of parental rights is in the best interest of the child, considering the child's physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. OCGA § 15-11-81(a). See In the Interest of B.D., 236 Ga.App. 119, 511 S.E.2d 229 (1999).
Viewing the evidence in favor of the juvenile court's findings, the record shows that one-year-old N.B. and newborn R.B. were removed from the mother's custody shortly after R.B.'s birth on August 27, 1996, because R.B. tested positive for cocaine and marijuana at the time of his birth. The mother also tested positive for cocaine and marijuana and was homeless and transient. At the September 10, 1996 deprivation hearing, the mother stipulated that N.B. was deprived, and temporary legal custody of both children was transferred to the Henry County Department of Family & Children Services (the "Department").
Two caseworkers attempting to work with the mother toward reunification testified that the mother failed to comply with the requirements of her case plan. The mother did not obtain a drug and alcohol assessment through a state-approved treatment facility, as required by the plan. She provided no documentation to show she attended AA and NA meetings twice per week for at least six months. She failed to submit to and pay for random drug screens. She never obtained a psychological evaluation from an approved psychologist. She never completed a parenting skills class. She failed to secure affordable housing for herself and the children. In fact, she resided in seven different residences over the two-year period when her children were in foster care. She paid no child support the entire time the children were in foster care. She attended only 15 of the 27 scheduled visits with her children. At the time of the termination hearing in December 1998, the mother had last seen the children in June 1998. Moreover, the mother was incarcerated on multiple occasions while her children were in foster care and was incarcerated at the time of the termination hearing.
At the termination hearing, the mother conceded that she failed to accomplish everything the Department had asked her to do. She admitted to having a drug dependency and acknowledged she would be incapable of properly parenting N.B. and R.B. for an additional nine months. She conceded that R.B. did not recognize her.
As a result of the mother's failure to comply with the case plan goals and to remedy her problems with drug abuse that caused her children to be removed originally from her custody, the juvenile court determined that N.B. and R.B. were deprived; the lack of proper parental care and control by the mother was the cause of the deprivation; the conditions and causes of deprivation were *50 likely to continue and not be remedied by the mother; the continued deprivation would cause serious physical, mental, emotional or moral harm to N.B. and R.B.; and there was no suitable alternative placement for the children within the family.
1. The mother does not argue that the children are not deprived, but merely contends the evidence was insufficient to show that (1) she failed to comply with her case plan goals, and (2) the cause of the deprivation is likely to continue or will not likely be remedied. These contentions are without merit.
The mother's first argument, regarding failure to comply with her case plan goals, centers around the fact that she completed a drug screen as ordered, but her caseworker obviously did not receive the results. Based on the other goals which the caseworker testified were not met, as well as the mother's admission that she failed to accomplish everything the Department asked her to do, we find clear and convincing evidence that the mother failed to comply with or achieve the goals in the court-ordered case plans.
The evidence is also sufficient to support the court's finding that the continued deprivation of the children is likely to continue or will not likely be remedied. First, evidence of past conduct may be considered in determining whether the deprivation is likely to continue if the children are returned to their mother. See In the Interest of B.D., supra at 121(2), 511 S.E.2d 229. The past conduct of the mother in this case certainly justifies such a finding. Second, the record is replete with examples of the mother's failure to cooperate with the Department's case plan. Moreover, she was incarcerated at the time of the termination hearing and admitted she still has a drug dependency.
While the mother promises to change her life, this court has repeatedly recognized that "[t]he decision as to a child's future must rest on more than positive promises which are contrary to negative past fact." (Citation and punctuation omitted). In the Interest of S.J.C., 234 Ga.App. 491, 494(1), 507 S.E.2d 226 (1998). Based on the mother's past behavior, the length of time her problems have persisted, her failure to comply with the case plan goals, and her own admissions, the juvenile court properly concluded that the deprivation is likely to continue or will not likely be remedied.
2. We agree with the mother's argument that the juvenile court erred in finding there was no suitable alternative placement for the children within the family.
The issue of placement with relatives is one to be made by the juvenile court, together with the Department, following the juvenile court's decision to terminate parental rights. OCGA § 15-11-90(a); In the Interest of D.T., 221 Ga.App. 328, 330(2), 471 S.E.2d 281 (1996). According to the statute, "[a]n exhaustive and thorough search for a suitable family member shall be made by the court and the Department of Human Resources in attempting to effect this placement." OCGA § 15-11-90(a)(1).
In the present case, the caseworker testified that she did not investigate the paternal grandfather as a possible suitable relative placement for the children because he never contacted the Department or expressed any interest in the children during the entire time they had been in foster care. However, while testifying about his son's employment and suitability as a parent during the trial of this case, the paternal grandfather stated that he would like to be considered for placement for his grandchildren. He admitted he had not contacted the Department in order to indicate his interest in serving as a placement resource for the children during the time they were in foster care. Nonetheless, while this may be considered as one factor in the Department's evaluation regarding the paternal grandfather's suitability for relative placement, it does not negate the Department's duty to conduct such an evaluation following the juvenile court's termination of the parents' parental rights. The juvenile court's finding that no suitable relative existed for placement was premature pending an evaluation of the paternal grandfather's suitability.
Thus, while we affirm the trial court's termination of the mother's parental rights, we *51 reverse the juvenile court's decision that there is no suitable alternative placement for the children within the family. We remand the case to the juvenile court with direction that the juvenile court, in conjunction with the Department of Human Resources, evaluate the possibility of placing the children with their paternal grandfather. In so doing, we do not express any belief that the children must or should be placed with the paternal grandfather.
Judgment affirmed in part and reversed in part and case remanded with direction.
POPE, P.J., and SMITH, J., concur.
NOTES
[1] Although the children's father was a party to the notice of appeal filed in the Henry County Juvenile Court, he subsequently informed the court that he was employed and no longer needed the assistance of the court-appointed attorney. Following a hearing on the indigent status of the parents, the trial court terminated the services of the court-appointed attorney on behalf of the father. Since the father has not paid appeal costs or otherwise participated further in this appeal, his appeal, if any exists, must be treated as having been abandoned. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332455/ | 521 S.E.2d 204 (1999)
239 Ga. App. 259
WHISENANT
v.
The STATE.
No. A99A0948.
Court of Appeals of Georgia.
July 21, 1999.
*205 Clarke & Anderson, James S. Anderson, Atlanta, for appellant.
Patrick H. Head, District Attorney, Ann B. Harris, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.
BARNES, Judge.
Randy Whisenant was arrested and charged with violating the Georgia Controlled Substances Act by possessing cocaine. He moved the trial court to suppress the cocaine evidence on the ground that he had been improperly seized before he was searched, and the court denied the motion. Whisenant agreed to a bench trial, stipulating that venue was proper and that the results of crime lab testing showed cocaine residue in a crack pipe taken from his pocket. The trial court found him guilty, and he appeals the denial of his motion to suppress. We affirm.
The arresting officer testified that he was patrolling in his marked police car when he saw Whisenant and another man sitting on a retaining wall in what was known as an "extremely high crime, high drugs" area. He stopped his cruiser because the police had received frequent complaints about strangers in the front yards in the area and asked Whisenant and his companion if they lived there. They answered no, and he asked if they had any identification on them. They again answered no, and he asked if they had "any dope, any guns, anything" on them. Whisenant answered, "I got a shooter in my pocket," a "shooter" being anything used to smoke crack. The officer got out of his car, patted down Whisenant, and found a clear glass tube with a copper pad in the end. The officer arrested Whisenant, and subsequent testing revealed that the "shooter" contained cocaine residue.
Since the evidence is uncontroverted and neither party questions the officer's credibility, we review de novo the trial court's application of search and seizure law to the undisputed facts. Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994).
Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.
*206 (Citations and punctuation omitted.) State v. Jackson, 201 Ga.App. 810, 813(2), 412 S.E.2d 593 (1991).
Whisenant argues his encounter with the police officer was a brief "seizure" that fell within the second tier, and that the officer had no reasonable suspicion that warranted his stop and search.[1] The State argues, on the other hand, that this incident was a first-tier citizen-police encounter involving no coercion or detention.
A police officer who questions an individual about his identity is merely conducting a first-tier citizen-police encounter that does not raise Fourth Amendment concerns. Aranda v. State, 226 Ga.App. 157, 158-159(1), 486 S.E.2d 379 (1997). Therefore, the issue in this case boils down to whether the officer's third question, asking Whisenant if he had "any dope, any guns, anything" on him, constituted a second-tier brief seizure. If it does, then the mere fact that Whisenant was sitting in a high-crime, high-drug area does not constitute a "reasonable suspicion" that would support a brief seizure. See Barnes v. State, 228 Ga.App. 44, 46, 491 S.E.2d 116 (1997). If asking the third question does not constitute a seizure, then Whisenant himself provided the probable cause for his subsequent arrest and search (see OCGA § 16-13-32.2), and the trial court properly declined to suppress the evidence.
A person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.
(Citations and punctuation omitted.) State v. Davis, 206 Ga.App. 238, 424 S.E.2d 878 (1992).
In Davis, two police officers walked up to three men standing in a "well-known drug area." In response to a question, Davis said he did not have any drugs and then gave his consent to being searched. We held that "Davis was not seized within the meaning of the Fourth Amendment. Rather, the encounter was simply a communication between the police and Davis involving no coercion or detention and therefore without the compass of the Fourth Amendment." Id. at 239, 424 S.E.2d 878.
The evidence before us in this case shows the police officer stopped to question Whisenant in an "extremely high crime, high drugs" area. The officer was in his police car, separated from Whisenant by a traffic lane, speaking through an open window. He used a conversational tone of voice, did not draw his weapon, and did not get out of the car until Whisenant said he had a shooter in his pocket. The evidence supports the conclusion that Whisenant was not seized when the police officer questioned him. Accordingly, the trial court did not err in denying Whisenant's motion to suppress.
State v. Williams, 225 Ga.App. 736, 484 S.E.2d 775 (1997), cited by Whisenant to support his argument that he was illegally seized, is distinguishable. In Williams, we upheld the trial court's factual determination that Williams did not voluntarily consent to a search conducted without articulable suspicion or probable cause. Consent is not an issue in this case; the issue is whether Whisenant was "seized" before the search.
Judgment affirmed.
BLACKBURN, P.J., and ELLINGTON, J., concur.
NOTES
[1] While Whisenant's enumeration of error claims the evidence should have been suppressed due to an illegal stop and search, he does not argue in any detail that the officer's search subsequent to the questioning violated the Fourth Amendment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332464/ | 521 S.E.2d 904 (1999)
239 Ga. App. 769
REDSTROM
v.
The STATE.
No. A99A1758.
Court of Appeals of Georgia.
August 31, 1999.
*905 William C. Head, Norcross, for appellant.
Gerald N. Blaney, Jr., Solicitor, Gary S. Vey, Assistant Solicitor, for appellee.
McMURRAY, Presiding Judge.
On September 9, 1998, the solicitor for the State Court of Gwinnett County preferred accusations against defendant-appellant, charging him with driving under the influence of alcohol and speeding. On December 18, 1998, defendant made a demand under the provisions of OCGA § 17-7-170, for speedy trial "within the present term or the next term" of the State Court of Gwinnett County. The "present term" would have been the November 1998 Term of the State Court of Gwinnett County. On March 3, 1999, defendant moved for discharge and acquittal, supporting his motion with the affidavit of Dorothy N. Ash, Jury Manager for the Gwinnett Judicial Circuit, who deposed that jurors were summoned and available for the week of December 7, 1998, and the week of December 14, 1998; and further that, no jurors were available for the rest of December 1998. According to the trial court's order, at the hearing on defendant's motion, Jury Manager Ash was present but did not testify personally because the substance of her evidence was proffered by the State's attorney without objection, as follows: There was no jury available on the date defendant filed his demand on Friday, December 18, 1998, because "all jurors in the courthouse were serving on [other] juries and that all other jurors had been released as of the close of business on Thursday, December 17, 1998." The trial court reasoned that, due to the absence of an impaneled jury on the day the demand was filed (the last day of the term), the motion did not trigger the two-term period until the next succeeding term. From the denial of his motion for discharge and acquittal, defendant brings this direct appeal, as authorized by Hubbard v. State, 254 Ga. 694, 333 S.E.2d 827. Held:
Defendant enumerates the denial of his motion for discharge and acquittal, arguing the trial court erred in concluding that the December 18, 1998, filing of defendant's demand for speedy trial failed to trigger the two-term period in which to try or acquit him. We affirm.
The statutory provision for speedy trial in non-capital cases is OCGA § 17-7-170.
If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged....
(Emphasis supplied.) OCGA § 17-7-170(b). A demand for speedy trial, with the right to discharge, involves the impaneling of two traverse juries qualified to try the defendant; one when it is made, and the other at the next successive term. Adams v. State, 65 *906 Ga. 516, 517(1) (1880). In order to trigger the statute, the defendant must make his demand at a time that a traverse jury is impaneled and qualified to try him. Kirk v. State, 194 Ga.App. 801, 802, 392 S.E.2d 249. A traverse jury or a petit jury is one impaneled to try a prosecution as distinguished from a grand jury. DeKrasner v. State, 54 Ga.App. 41(1), 187 S.E. 402. According to Black's Law Dictionary (4th ed., p. 886) the term "`impanel' signifies the act of the clerk of the court in making up a list of the jurors who have been selected for the trial of a particular cause." Accord Kirk v. State, 194 Ga.App. 801, 802, 392 S.E.2d 249, supra. A term or the remainder of a term in which no juries are impaneled and qualified to try the case is not counted for purposes of OCGA § 17-7-170. George v. State, 269 Ga. 863, 864, 505 S.E.2d 743.
In the case sub judice, the record shows that, at the time defendant filed his motion at 4:00 p.m. on the last business day of the November 1998 term, all jurors were dismissed and not subject to recall. See State v. McDonald, 242 Ga. 487, 489, 249 S.E.2d 212; MacInnis v. State, 235 Ga.App. 732, 734, 510 S.E.2d 557. The Supreme Court of Georgia has rejected the argument that a court term should count merely because jurors were impaneled previously during that term, since discharged jurors are neither impaneled nor qualified to try a defendant, and so fail to meet the statutory requirements for a speedy trial. Pope v. State, 265 Ga. 473, 474, 458 S.E.2d 115. Defendant stipulated that the jurors had been released that Friday, and there is no evidence they were subject to recall for that day. In the absence of clear and convincing evidence to the contrary, we will not disturb the trial court's factual finding that no jury qualified to try defendant was impaneled at the time defendant's demand was filed, or for the remainder of the November 1998 term. Wilson v. State, 156 Ga.App. 53, 54, 274 S.E.2d 95. The trial court correctly concluded that defendant's filing did not trigger the two-term requirement of OCGA § 17-7-170(b) during the November 1998 Term of the State Court of Gwinnett County, and so properly denied defendant's motion for discharge and acquittal.
Judgment affirmed.
JOHNSON, C.J., and PHIPPS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332465/ | 643 S.E.2d 51 (2007)
Bobby Ray EDWARDS and wife, Laura Edwards, Plaintiffs,
v.
Wayne TAYLOR and wife, Wendy Taylor; Bobby Gene Smith, Individual; and, The Home Inspector, Inc., a North Carolina corporation, Defendants.
No. COA06-883.
Court of Appeals of North Carolina.
April 17, 2007.
Daughtry, Woodard, Lawrence & Starling, by K. Alice Morrison, Clinton, for plaintiff-appellees.
Andrew M. Jackson, Clinton, for defendant-appellants.
BRYANT, Judge.
Bobby Gene Smith and The Home Inspector, Inc., a North Carolina corporation, (defendants collectively) appeal from a judgment entered 6 March 2006 denying defendants' motion to compel arbitration with Bobby Ray Edwards and Laura Edwards (plaintiffs collectively).
Defendant Smith is the sole shareholder, sole director, and president of The Home Inspector, Inc. In late November 2003, plaintiffs contracted to purchase a house from Wayne and Wendy Taylor. Plaintiffs contacted defendants by telephone to arrange a pre-purchase home inspection. Plaintiffs and defendants entered into an oral agreement in which defendants agreed to perform the home inspection and plaintiffs agreed to pay $288 for the inspection. Defendants performed the home inspection on 16 December 2003. After performing the home inspection, defendants met plaintiff Bobby Ray Edwards in a shopping center parking lot one evening and defendants tendered the home inspection report to plaintiffs and in exchange, plaintiffs paid defendants $288 as payment in full of the home inspection fee. Also, at that meeting, defendants presented plaintiffs with a home inspection contract for plaintiffs' signature.
The home inspection contract, presented to plaintiffs for their signature after paying defendants and receiving their home inspection report contained the following agreement:
ARBITRATION: Should the client believe that The Home Inspector, Inc.[ ] be liable for any issues arising out of this inspection, then client(s) shall communicate said issues in writing to The Home Inspector, Inc.[ ] within ten (10) days of the date of inspection. If the issues cannot be resolved between the parties, both parties agree to submit the dispute to binding arbitration in accordance with the rules of the American Arbitration Association. Arbitration is to be conducted by an arbitrator who is a full-time building inspector with a minimum of six (6) years experience as a building inspector. The inspection will be judged in accordance with the North Carolina Standards of Practice and Code of Ethics.
Plaintiffs and defendant Smith both signed the written contract containing the above agreement to arbitrate. There is no evidence the arbitration agreement had been previously discussed between the parties. Plaintiffs closed on the house 14 January 2004 and moved in the next day. Plaintiffs called defendants on 3 March 2004 complaining about a multitude of defects with the *53 home, which resulted in the filing of this action.
By order entered 28 December 2005, partial summary judgment was granted in favor of defendants as to the claims of civil conspiracy and violations of the Unfair and Deceptive Trade Practices Act; however, plaintiffs' causes of action for fraud and negligence remained. Defendants then filed a motion seeking to compel arbitration pursuant to the agreement. After hearing the matter, the trial court denied the motion in open court on 8 February 2006 and entered a written order on 6 March 2006. Defendants appeal. For the reasons which follow, we affirm the judgment of the trial court.
Defendant argues the trial court erred by: (I) denying their motion to compel arbitration; (II) finding the home inspection contract was not supported by consideration; and (III) entering its written order.
At the outset, we note the trial court's order denying defendants' motion to compel arbitration is interlocutory; however, it is immediately appealable because it affects a substantial right of defendants, as stated in N.C. Gen.Stat. § 1-277 and N.C. Gen.Stat. § 7A-27(d)(l) (2005). The right to arbitrate a claim is a substantial right which may be lost if review is delayed, and an order denying arbitration is therefore immediately appealable. Burke v. Wilkins, 131 N.C.App. 687, 688, 507 S.E.2d 913, 914 (1998). We now address the merits of defendants' appeal.
I
Defendants argue the trial court erred by denying their motion to compel arbitration. We disagree.
The question of whether a dispute is subject to arbitration is an issue for judicial determination. The trial court's conclusion as to whether a particular dispute is subject to arbitration is a conclusion of law, reviewable de novo by the appellate court. The determination of whether a dispute is subject to arbitration involves a two pronged analysis; the court must ascertain both (1) whether the parties had a valid agreement to arbitrate, and also (2) whether the specific dispute falls within the substantive scope of that agreement.
Raspet v. Buck, 147 N.C.App. 133, 136, 554 S.E.2d 676, 678 (2001) (citations and quotations omitted). When the party seeking to enforce the arbitration agreement has performed a portion of the services and thereafter presents a written agreement to the other party, the written agreement, if it substantially changes the terms of the oral agreement, cannot be enforceable. Southern Spindle & Flyer Co. v. Milliken & Co., 53 N.C.App. 785, 788, 281 S.E.2d 734, 736 (1981) ("Mere acknowledgement of receipt of the purchase order form [containing an arbitration clause] did not constitute assent to its terms.").
North Carolina General Statutes, Section 1-567.2 requires that all agreements to arbitrate be in writing at the time of the agreement.[1]
Two or more parties may agree in writing to submit to arbitration any controversy existing between them at the time of the agreement, or they may include in a written contract a provision for the settlement by arbitration of any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole or any part thereof. Such agreement or provision shall be valid, enforceable, and irrevocable except with the consent of all the parties, without regard to the justiciable character of the controversy.
N.C. Gen.Stat. § 1-567.2 (2002).
The cases relied upon by defendant in support of his argument that the trial court should have compelled arbitration are in apposite. See Red Springs Presbyterian Church v. Terminix Co., 119 N.C.App. 299, 302, 458 S.E.2d 270, 273 (1995) (A valid agreement to arbitrate exists where the language is clear and unambiguous and the parties signed the contract agreeing to submit *54 any disputes for arbitration prior to the start of the contract); see also Revels v. Miss N.C. Pageant Org., Inc., 176 N.C.App. 730, 734, 627 S.E.2d 280, 283 (2006) (Arbitration held enforceable where "it is clear that Revels assented to all terms of the contract including the arbitration clause. Revels' signature appears at the end of the contract on the signature line and, further, Revels placed her initials on each page of the contract, including the one containing the arbitration clause. No ambiguity exists as to whether there was assent to each of the terms.").
In the instant case, the parties entered into an oral agreement in which defendants agreed to perform a home inspection and plaintiffs agreed to pay $288 for the inspection. Defendant inspected the house, then later met with plaintiff, and only during that meeting did defendant seek to have plaintiff sign a written contract with additional terms including an arbitration agreement. Defendant performed the home inspection on the basis of an oral contract. Thus, under North Carolina law, the oral agreement between the parties for the performance of a home inspection could not contain an enforceable agreement to arbitrate. N.C.G.S. § 1-567.2 (2002). Therefore, although both parties signed a written agreement, the trial court properly held the parties did not enter into a valid written agreement to arbitrate. Upon de novo review of this issue, we determine the trial court properly denied defendant's motion to compel arbitration. This assignment of error is overruled.
II
Defendant argues the trial court erred by finding the home inspection contract was not supported by consideration. Because we have determined the trial court properly found there was no valid written agreement to arbitrate, we deem it unnecessary to reach defendant's second issue.
III
Defendant argues the trial court erred by entering its written order. Defendant states the written order rendered on 6 March 2006 held the home inspection contract was "unconscionable" and "the provisions of the written contract, specifically the clauses referring to arbitration and the limitation of liability, are unenforceable and against public policy." Accordingly, defendant contends the written order fails to adequately capture the oral order discussed in open court at the 8 February 2006 hearing and is invalid. We disagree.
N.C. Gen.Stat. § 1A-1, Rule 58, Entry of judgment states:
Subject to the provisions of Rule 54(b), a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court. The party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered.
N.C. Gen.Stat. § 1A-1, Rule 58 (2005). "A trial court has the authority under N.C.G.S. § 1A-1, Rule 58 to make a written judgment that conforms in general terms with an oral judgment pronounced in open court[.]" Morris v. Bailey, 86 N.C.App. 378, 389, 358 S.E.2d 120, 127 (1987). If the written judgment conforms generally with the oral judgment, the judgment is valid. Id.
As evidenced by the transcript, the issues of unconscionability of the contract and limitation of liability were brought to the trial court's attention. In fact, the trial court inquired whether there would be any evidence that plaintiffs "had heard anything about an arbitration clause or [ ] limited liability prior to [ ] hiring [the home inspector.]" Defense counsel replied "[n]o, your honor." After hearing from plaintiffs' counsel that the alleged contract (which included the arbitration and limited liability clauses) was unconscionable, the trial court then rendered the following oral order:
THE COURT: All right. Well, I'd like an order prepared finding that there was apparently an oral agreement for this inspection. I take it that the price was agreed upon or at least discussed when the oral agreement was made, is that correct?
MR. JACKSON: Yes, Your Honor. It was done by telephone.
*55 THE COURT: Okay. And that the work was performed. That the defendant chose to produce his written report and to receive his pay. He then asked for, and the plaintiffs did sign, a written agreement which did provide for arbitration. That this arbitration agreement had never been previously discussed; that there was no additional consideration to the plaintiffs for this. Their consideration for the inspection, having already been received, accepting the report, that they were already obligated to pay, that the arbitration agreement is thus invalid, and that the matter will not go to arbitration, it's for a court of law.
The language the trial court used, particularly stating that the arbitration agreement had never been discussed, addresses the unconscionability of the contract. We therefore hold that the written order of the trial court conforms with the oral judgment pronounced in open court. This assignment of error is overruled.
Affirmed.
Judges McCULLOUGH and LEVINSON concur.
NOTES
[1] North Carolina General Statute §§ 1-567.2 to 1-567.20 have been repealed; however, § 1-567.2 remains applicable to the instant dispute because the agreement was entered into before 1 January 2004. N.C. Gen.Stat. § 1-569.3 (2003). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263053/ | 893 A.2d 569 (2006)
EAGLE MAINTENANCE SERVICES, INC., Appellant
v.
DISTRICT OF COLUMBIA CONTRACT APPEALS BOARD, Appellee.
No. 03-CV-1567.
District of Columbia Court of Appeals.
Argued February 23, 2005.
Decided March 2, 2006.
*572 Bonnie K. Arthur, with whom David F. Geneson was on the brief, for appellant.
James C. McKay, Jr., Senior Assistant Attorney General for the District of Columbia, with whom Robert J. Spagnoletti, Attorney General, and Edward E. Schwab, Deputy Attorney General, were on the brief, for appellee.
Before FARRELL, Associate Judge, and KERN and TERRY, Senior Judges.[*]
TERRY, Senior Judge:
Eagle Maintenance Services, Inc. ("Eagle"), appeals from an order of the Superior Court denying review of a decision by the District of Columbia Contract Appeals Board ("CAB").[1] The CAB had ruled that the District of Columbia overpaid Eagle by $959,963 under a recycling contract between Eagle and the Department of Public Works ("DPW")[2] which had been declared void ab initio under D.C.Code § 2-302.05(d)(1) (2001) (formerly codified as D.C.Code § 1-1182.5(d)(1) (1999)).[3] We affirm the trial court's order in part, reverse that order in part, and remand the case for further proceedings before the CAB.
*573 I. FACTUAL BACKGROUND
A. The Contract and the CAB Proceedings
On February 1, 1993, Eagle entered into a contract with DPW to receive, process, and market recyclable materials collected by the District. The contract required Eagle to "have a fully operational processing facility within the District" by the first day of the second year of the contract,[4] and included a "bilateral modification" stating that the District recycling facility would be "the sole responsibility of the contractor." Eagle began its performance of the contract on March 22, 1993. In June 1993 Recycling Solutions, Inc. ("RSI"), filed a bid protest with the CAB, challenging DPW's decision to award the contract to Eagle. On April 15, 1994, the CAB sustained RSI's protest and declared the contract between Eagle and DPW void ab initio pursuant to D.C.Code § 2-302.05(d)(1), supra note 3.[5]See Recycling Solutions, Inc., CAB No. P-337, 42 D.C. Register 4550 (August 18, 1995). The CAB determined that the contract award was arbitrary and did not meet other requirements of a procurement contract.[6] Accordingly, the CAB ordered DPW to cancel the contract on that ground. Instead, however, DPW sent a letter to Eagle on April 24, 1995, purporting to cancel the contract on the ground that DPW had insufficient funding to continue performance (i.e., a "termination for convenience"), pursuant to the contract's Article 6. On April 28, 1995, upon receipt of this letter, Eagle submitted a demand to DPW for a termination payment of $6,644,777.05.[7] Eagle continued its recycling work for the District until approximately April 30, 1995.
The CAB later learned that DPW had violated its order of April 15, 1994, by canceling the contract for "insufficient funds." On June 6, 1995, the CAB again ordered DPW to inform Eagle that the contract had been declared void ab initio and was therefore canceled for that reason.[8] The CAB also stated that Eagle was entitled to actual costs reasonably incurred, but not profit, under D.C.Code *574 § 2-302.05(d)(2).[9] The CAB then directed DPW to make a determination under the statute of the appropriate compensation for costs actually incurred by Eagle.
Between the signing of the contract in February 1993 and the termination of the contract at the end of April 1995, Eagle submitted invoices for payments and received payments from DPW in the amount of $2,070,056. DPW did not, as the CAB had directed it to do, make a statutory determination of Eagle's costs. It did, however, award Eagle an "emergency" contract for recycling services in June of 1995, under which Eagle performed essentially the same functions as it had under the 1993 contract.[10]
On January 2, 1996, DPW sent Eagle a check for $1,071,966 in an apparent attempt to settle the matter, although it still had not made the required determination under D.C.Code § 2-302.05(d)(2) with respect to compensation for Eagle's performance costs. Thus, as of January 1996, the District had paid Eagle a total of $3,142,022.[11] In March 1996 the CAB asked Eagle and DPW to prepare and submit detailed schedules of Eagle's actual costs and revenue associated with its recycling work. The Office of the Corporation Counsel (now known as the Office of the Attorney General) then requested the Office of the Inspector General ("OIG") to conduct an audit of Eagle's costs and revenue.
The OIG completed its initial audit on August 10, 1996, and the CAB reviewed it with the parties on September 17, 1996. The following day, the CAB ordered Eagle to produce additional documentation to support findings of allowability and allocability of claimed costs,[12] and directed the OIG to prepare a supplemental audit report based on this additional information. After several more CAB orders directing Eagle to produce documentation and other information, Eagle provided the requested material on December 18, 1996. The OIG issued its final audit report on March 5, 1997, concluding that, because Eagle's actual costs were $3,688,075 and the District made $3,142,022 in payments, the District owed Eagle an additional $546,053. The CAB then held a series of evidentiary hearings in March, April, and May 1997 and requested yet more documentation from Eagle.
B. The CAB Decision
In its final decision, issued on December 29, 2000, the CAB concluded that, while Eagle had entered into the contract in good faith and had not contributed to the violations, the costs actually incurred[13] by Eagle in performing the contract were $2,182,059, and that Eagle therefore owed *575 the District $959,963 for payment in excess of those costs. In arriving at that figure, the CAB analyzed each of Eagle's claims for costs, including direct labor costs, fringe benefit costs, other direct costs, subcontractor costs, general and administrative costs, and District-based processing facility costs.
Most significantly for purposes of this appeal, the CAB found, on the basis of hearing testimony and documentary evidence, that at least five percent of Eagle's costs were attributable not to work performed under the contract with the District, but to Eagle's other janitorial and recycling jobs. It therefore applied a five percent reduction to the costs claimed by Eagle in connection with its recycling operations, including direct labor costs, fringe benefit costs, other direct costs, and subcontractor costs. It also disallowed ten percent of Eagle's costs associated with "fuel, maintenance and transportation" because it found that Eagle had operated inefficiently in conducting hauling operations between its own Capitol Heights facility and the CWI facility to process recyclables from the District. Finally, it rejected Eagle's claim for $5,548,367 associated with constructing the new District-based facility. This decision was based on (1) the contract's bilateral modification, which stated that the facility would be Eagle's "sole responsibility";[14] (2) the fact that the facility retained commercial value even after the District recycling job had ended; and (3) the fact that, because the facility was not completed before the contract was declared void, it did not benefit the District.
C. Proceedings in the Superior Court
Eagle petitioned the Superior Court for review of the CAB's decision. After extensive pleadings and other documents were filed, the court affirmed the CAB's rulings and denied Eagle's petition.
The court agreed with the CAB that "actual costs" under section 2-302.05(d)(2) must be reasonable costs.[15] It therefore held that the CAB did not err when it refused to award Eagle start-up and construction costs for the District facility because the facility was not completed when the contract was declared void ab initio in April of 1995, so that no benefit was ever conferred upon the District which would make those costs recoverable. The court also ruled that the contract's bilateral modification precluded recovery of those costs because it established that the facility was Eagle's "sole responsibility." It concluded that the facility retained commercial value after the cancellation of the contract and that Eagle therefore obtained a benefit from its construction. Finally, the court held that the CAB's factual determinations regarding Eagle's other costs, including the five and ten percent reductions, were supported by substantial evidence. Eagle filed a timely notice of appeal.
II. "COSTS ACTUALLY INCURRED"
We must decide whether the CAB's determinations of the "costs actually incurred" *576 by Eagle under the void contract with DPW were based on substantial evidence in the record, and whether the CAB erred in holding that the District was entitled to a refund of its excess payment. For the most part, we affirm the trial court's decision, but in two respects we must reverse and remand for further proceedings.
We review the CAB's factual findings deferentially. As this court said in Belcon, Inc. v. District of Columbia Water and Sewer Authority, 826 A.2d 380, 384 (D.C.2003):
The Board's factual findings "shall be final and conclusive and shall not be set aside unless the decision is fraudulent, arbitrary, capricious, or so grossly erroneous as to necessarily imply bad faith, or if the decision is not supported by substantial evidence." D.C.Code § 2-309.07 (2001) (emphasis added). Evidence is substantial when "a reasonable mind might accept [it] as adequate to support a conclusion." Epstein, Becker & Green v. District of Columbia Dep't of Employment Services, 812 A.2d 901, 903 (D.C.2002). So long as a finding is supported by substantial evidence, we must accept it, "even though there may also be substantial evidence in the record to support a contrary finding." Harrison v. University of the District of Columbia, 758 A.2d 19, 22 (D.C.2000).
Our review of the CAB's conclusions of law, however, is guided by a somewhat different standard:
[W]hile "as to questions of law . . . [the Board's] decision is not final or conclusive. . . nonetheless, we give careful consideration and great respect to [its] interpretation because legal interpretations by tribunals having expertise are helpful even if not compelling." . . . This deference is especially proper in cases such as this involving mixed questions of fact and law where the Board and [this court] on review must examine a detailed record of the parties' course of dealing and performance.
Dano Resource Recovery, Inc. v. District of Columbia, 620 A.2d 1346, 1352 (D.C. 1993) (citations omitted).
Eagle seeks compensation under D.C.Code § 2-302.05(d)(2), which provides that "[if] a contract is void, a contractor who has entered into the contract in good faith [and is not otherwise disqualified] shall be compensated for costs actually incurred" (emphasis added). It is important to emphasize here that the CAB determined, and the trial court agreed, that under this statute "costs actually incurred" are those which are "properly allocable to the work, are reasonably incurred, and are allowable under the applicable cost principles." In other words, the CAB said, "actual costs must be reasonable costs." This formulation is consistent with Abadie v. Organization for Environmental Growth, Inc., 806 A.2d 1225 (D.C.2002), in which we held that "termination costs are allowed only if they are reasonable, allocable to the contract, consistent with cost accounting standards and generally acceptable accounting principles and practices, and consistent with any limitations in the contract or regulations with respect to the type or amounts of costs." Id. at 1227 (footnote omitted). "A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person in the conduct of competitive business.. . . No presumption of reasonableness shall be attached to the incurrence of costs by a contractor. . . . [T]he burden of proof shall be upon the contractor to establish that such cost is reasonable." Id. at 1228 (citation omitted; emphasis added in Abadie). Any findings relating to the reasonableness of those costs must be supported *577 by substantial evidence. Id. at 1227.
III. THE DISTRICT-BASED FACILITY
A. The Bilateral Modification
Eagle argues that the CAB and the trial court erred when they concluded, as a matter of law, that the bilateral modification of the contract precluded Eagle from recovering start-up costs because, under that modification, Eagle was "solely responsible" for the facility. On this point we agree with Eagle.
The bilateral modification states:
The contractor is responsible for obtaining all permits necessary to establish the recycling processing and buy back facilities in the District. By executing this contract the District does not waive any requirements of law or the right to review permit application in accordance with applicable criteria. The processing and buy-back facilities are private facilities which are the sole responsibility of the contractor. [Emphasis added.]
The CAB ruled that the italicized sentence meant that Eagle had "no legitimate expectation of recovering costs of the District-based facility." The trial court agreed, stating: "The plain meaning of the modification clearly establishes the District Facility as the sole responsibility of Eagle. This includes, inter alia, start-up and construction costs associated with the . . . Facility."
We do not read this language so broadly. Although we would normally defer to the expertise of the CAB, see Dano Resource Recovery, 620 A.2d at 1352, in this instance we think the CAB's conclusion that Eagle essentially waived its statutory right to recover costs it reasonably incurred is an incorrect reading of the bilateral modification. Surely, a waiver of such magnitude must be clear and unambiguous. Had the parties actually intended to place sole financial responsibility on Eagle for construction of the District facility, the bilateral modification could have and should have declared that intention in plain, unambiguous language. See, e.g., Keller v. Keller, 171 A.2d 511, 514 (D.C. 1961) ("If the parties intended a waiver. . . in all circumstances, it was an easy matter for them to state such intention"). It did not do so, however, and for this reason we hold that the CAB's interpretation of the bilateral modification stretches its meaning too far. The "sole responsibility" language of the bilateral modification is too vague and imprecise to be construed as a deliberate waiver of Eagle's statutory right to recover its "costs actually incurred." Thus, standing alone, the bilateral modification does not preclude Eagle from recovering its start-up costs.
Eagle's argument that the start-up costs were incurred pursuant to the contract is, however, without merit. All construction costs associated with the District-based facility were incurred after the contract was declared void. This case is therefore distinguishable from New York Mail & Newspaper Transportation Co. v. United States, 139 Ct.Cl. 751, 154 F.Supp. 271, cert. denied, 355 U.S. 904, 78 S.Ct. 332, 2 L.Ed.2d 260 (1957), upon which Eagle primarily relies. In that case a contract was declared invalid three years after performance began. The court held that "[w]hen an individual or the Government rescinds a contract, the parties are to be placed, as far as possible, in the position they would have occupied without the transaction." Id. at 759, 154 F.Supp. 271, 154 F.Supp. at 276 (footnote omitted). The contractor was therefore awarded costs that it had incurred during its performance of the contract.
*578 The difference between New York Mail and this case is that, in New York Mail, the contractor began performance before the contract was terminated. Consequently, "since the [cost incurred by the plaintiff] was due solely to the requirements of the contract, the Government should reimburse that expense in accordance with the terms of the contract. . . ." Id. at 759-760, 154 F.Supp. at 276. In the instant case, however, Eagle did not even acquire the site for the facility until January of 1995, nine months after the CAB declared the contract void (see note 5, supra). Thus it was not "due solely to the requirements of the contract" that Eagle incurred its start-up costs. On the contrary, the contract was no longer valid when Eagle began its construction of the facility, and New York Mail does not support its argument.
This is not to say that Eagle is necessarily foreclosed from recovering any of its start-up costs. As we have said, the bilateral modification cannot be read as a waiver of Eagle's statutory right to recover "costs reasonably incurred." Indeed, it may well be that some of the costs Eagle incurred in building the facility were reasonable, since it might not have purchased the site and begun construction had DPW initially followed the CAB's instructions and informed Eagle that the contract had been declared void ab initio. We leave it to the CAB on remand to determine what specific start-up costs, if any, were "reasonably incurred."
B. No Benefit to the District
Eagle also contends that the CAB and the trial court erred when they applied the theory of quantum meruit in determining whether Eagle was entitled to recover start-up costs for construction of its District-based facility. Instead, according to Eagle, it "was entitled to be compensated for all of its facility start-up and construction costs under the contract's termination-for-convenience-of-the-government clause" because it was an "innocent contractor."
The most obvious flaw in this argument is Eagle's insistence that it is entitled to recovery under the contract's termination-for-convenience clause. It is undisputed that the CAB declared the contract void ab initio in April of 1995. It therefore makes no difference that Eagle did not act in bad faith and had no knowledge that the procedures the District followed in procuring the contract were improper (i.e., that Eagle was an "innocent contractor"). D.C.Code § 2-302.05(d)(2) specifically states that, when a contract is declared void (as it was here), an innocent contractor is entitled only to "costs actually incurred," not all of its costs as Eagle is now claiming. Thus Eagle's potential recovery is based on this statutory provision, not on the termination-for-convenience clause of the contract.[16] The CAB's task, therefore, was to determine what costs were actually incurred, i.e., Eagle's "reasonable" costs.
Eagle also errs in characterizing the CAB's decision in terms of recovery based on quantum meruit. It does not appear that the CAB relied on that theory in assessing whether Eagle's claimed costs for start-up and construction of the facility were reasonable, at least not explicitly, and certainly not exclusively. It merely considered the fact that the District had received no benefit from the construction of the facility which was not begun until *579 after the contract was declared void ab initio in deciding that Eagle's start-up costs were not recoverable as "costs actually incurred."[17] It also based its decision on the contract's bilateral modification and on the continued commercial viability of the facility even after the contract was determined void (although, as we have held, its decision with regard to the scope of the bilateral modification was erroneous).
The CAB's conclusion that construction costs incurred after the contract was declared void were not "reasonable" under section 2-302.05(d)(2) is supported by substantial evidence (though the CAB's explanation leaves something to be desired, since it merely stated that it agreed with the OIG's analysis that the start-up costs never benefited the District recycling program). As we said earlier, evidence is substantial when "a reasonable mind might accept [it] as adequate to support a conclusion." Belcon, 826 A.2d at 384 (quoting Epstein, 812 A.2d at 903). This court must therefore accept the finding even though "there may also be substantial evidence in the record to support a contrary finding." Id. (quoting Harrison, 758 A.2d at 22).
The record reveals that, as of the date the contract was declared void ab initio, Eagle had not even begun construction on its District-based facility. Eagle's contention that it was "faced with a Hobson's choice when RSI filed its protest: either stop performance and risk a lawsuit from the District for material breach of contract, or perform until the Superior Court decided the matter and risk receiving nothing under the CAB's quantum meruit approach" is therefore without merit. If Eagle had actually begun construction during the performance period, the CAB might well have concluded that the costs associated with construction were "reasonable." But because the facility did not even exist at the time the contract was declared void, the costs associated with its construction cannot be regarded as actual costs of performance. On the other hand, Eagle might not have purchased the site at all and begun construction if it had not relied on DPW's actions. If the CAB finds that such reliance was reasonable, then Eagle may be entitled at least to recover some or all of its site-acquisition costs, and (as we said earlier) perhaps even some of its start-up costs. This, of course, is for the CAB to decide in the first instance on remand, after hearing such evidence as Eagle may choose to present.
C. Commercial Value
Eagle also maintains that "[t]he conclusion that Eagle's costs represented *580 capital improvements that had commercial value to Eagle was not supported by substantial evidence." We must agree, for the record is silent as to how the OIG, and thereafter the CAB, concluded that the District-based facility was commercially valuable to Eagle.
The CAB found that "Eagle was using the facility after the end of the District recycling job for commercial purposes and that the facility had a commercial value." It also determined that "Eagle used the facility for a follow-on recycling contract awarded by the District to Eagle." The CAB appears to have based this determination largely on the audit conducted by the OIG. The OIG's report stated:
We observed during our field work, between June 13, 1996, and July 12, 1996. . . [that] the contractor was using the facility for commercial purposes. Hence, in our opinion, it is not impracticable for the contractor to put the facility to commercial uses. In addition, we believe that the facility has significant economic value in the recycling marketplace. . . . We also understand that Eagle, under a current contract for recycling with DPW, is using the facility.[18]
No further details are provided. The CAB's decision contains a similarly opaque and conclusory determination that "the costs represent capital improvements that have a commercial value to Eagle." Nowhere does the CAB explain why this is the case. The cost and revenue schedules contained in the OIG's report appear to cover the years 1993 to 1995 (the term of the contract), but that was before the District-based facility was built.[19]
If there is supporting documentation for the CAB's conclusion that the facility had commercial value, it is not this court's responsibility to find it. "We do not ourselves scour the record in search of evidence or rely on evidence other than what the Board itself relied on to support its findings." Abadie, 806 A.2d at 1229. Because the Board relied on the OIG's audit report, and because that report appears to provide no support for its conclusions, we cannot ascertain where the conclusion that the facility had commercial value came from. The substantial evidence test is satisfied only when an administrative agency "fully and clearly explains its decision and demonstrates `a rational connection between the facts found and the choice made.'" Office of People's Counsel v. Public Service Comm'n, 797 A.2d 719, 726 (D.C.2002) (citation omitted). Since we cannot discern from the record the CAB's reason for concluding that the facility had commercial value, we must remand the case to the CAB for further proceedings on this issue as well.
IV. OTHER COSTS
Eagle next contends that the CAB arbitrarily reduced or disallowed its other *581 costs, including direct labor costs and general administrative costs. As to these claims, we uphold the CAB.
A. The Five Percent Reduction
Eagle maintains that the five percent reduction applied by the CAB to its costs was "non-contractual and arbitrary." In contrast to the CAB's decision regarding commercial value, there was ample evidence and explanation in the record to support the CAB's determination that "at least 5 percent of the recyclables processed at the interim facility . . . were generated from Eagle's other recycling and janitorial jobs from commercial haulers." The CAB explained that its conclusion was based on evidentiary hearings it conducted and documents it received. According to the CAB, the evidence showed that "Eagle continued to collect recyclables [from Prince George's County, Maryland]. . . using its own trucks and drivers"; that Eagle collected recyclables for Dow Chemical Company, the United States Public Health Service, and an entity referred to as "The Cluster"; and that it "may have been collecting materials from the Washington Design Center." Given this information, the CAB also found that the testimony of Eagle's president that only one percent of the recyclables processed at the interim facility came from non-DPW sources was "not credible."
It is clear from the CAB's detailed analysis that there was substantial evidence to support its finding that the non-DPW jobs processed at the facility exceeded one percent, and that there was a rational connection between this finding and the decision that Eagle's "costs actually incurred" ought to be reduced by five percent. See Office of People's Counsel, 797 A.2d at 726. Moreover, the CAB was in the best position to evaluate the credibility of witnesses, and this court must give deference to its credibility findings. See, e.g., Washington Metropolitan Transit Authority v. District of Columbia Dep't of Employment Services, 683 A.2d 470, 477 (D.C.1996).
B. The Ten Percent Penalty
Likewise, the ten percent penalty imposed on certain of Eagle's claimed costs was supported by substantial evidence. The CAB relied on the OIG audit, testimony at the four evidentiary hearings, and supporting documentary evidence to conclude that some of Eagle's claimed costs should be reduced by ten percent because of Eagle's inefficient use of CWI's recycling facility, resulting from inadequacies in Eagle's own facility. This sort of detailed fact-finding is the responsibility of the CAB, and there is no reason for this court to disturb it unless it is unreasonable, which it is not. See Belcon, 826 A.2d at 384. Moreover, the CAB did not apply the ten percent reduction to all of Eagle's claimed costs, but undertook a thorough and careful examination of the record concerning Eagle's hauling and recycling operations. We find no error in the imposition of the ten percent penalty.
C. Direct Costs and General and Administrative Costs
Eagle's claims concerning direct costs and general and administrative costs are similarly without merit. Again, it is clear from the CAB's extensive explanations regarding each claimed cost that it based its decision on substantial evidence in the record. The CAB had the benefit of the OIG's report, as well as several days' worth of live testimony and a plethora of documentary evidence. Moreover, the CAB carefully allocated costs based on reasonableness. For example, with regard to general and administrative ("G & A") costs, it noted:
We could deny all Eagle G & A costs for lack of adequate support, but such a *582 blanket denial may be unfair since clearly there are some allowable G & A costs. We adopt another approach. Eagle proposed in its BAFO [best and final offer] a G & A rate of 11 percent on total costs. We find this rate to be reasonable even considering the problems with Eagle's G & A cost support.
This and similar statements show that the CAB was taking into account as much evidence as it could in determining Eagle's actual costs. It is also consistent with the requirement that actual costs be "reasonable, allocable to the contract . . . and consistent with any limitations in the contract or regulations with respect to the type or amount of costs." Abadie, 806 A.2d at 1227.
D. Refund of Payment in Excess of Costs
Eagle also contends, in the alternative, that the CAB erred in ruling that it owed the District $959,963 for payment in excess of its costs actually incurred. It argues that under the doctrines of voluntary payment, account stated, and accord and satisfaction, it was entitled to retain all of the $1,071,966 payment from the District. We cannot agree.
The common law doctrines cited by Eagle afford it no relief, for they do not apply in the instant case.[20] Accord and satisfaction is an "affirmative defense [raised by a debtor] to a breach of contract claim." Pierola v. Moschonas, 687 A.2d 942, 947 (D.C.1997). This is not a breach of contract case; hence the concept of accord and satisfaction is irrelevant. Similarly, the voluntary payment doctrine, aside from being "an old common law doctrine rarely cited by courts in modern, complex transactions," Avianca, Inc. v. Corriea, 1992 WL 93128, at *6, 1992 U.S. Dist. LEXIS 4709, at *20 (D.D.C.1992), is an affirmative defense to a suit for breach of contract which provides that "money voluntarily paid under a claim of right to the payment, and with knowledge of the facts by the person making the payment, cannot be recovered by the payor solely because the claim was illegal." Smith v. Prime Cable of Chicago, 276 Ill.App.3d 843, 847, 213 Ill.Dec. 304, 658 N.E.2d 1325, 1329 (1995). That doctrine is not applicable here, since Eagle is not being sued and, in any event, is not defending against a claim for costs, but is instead claiming additional costs. Moreover, as the District points out, the voluntary payment doctrine does not apply to payments by government officials which are later determined to have been ultra vires. See United States v. Bentley, 107 F.2d 382, 384 (2d Cir.1939); Heidt v. United States, 56 F.2d 559, 560 (5th Cir.), cert. denied, 287 U.S. 601, 53 S.Ct. 8, 77 L.Ed. 523 (1932).
The doctrine of "account stated" is likewise inapplicable. An account stated is "a promise by a debtor to pay a stated sum of money which the parties had agreed upon as the amount due. . . ." Ally & Gargano, Inc. v. Comprehensive Accounting Corp., 615 F.Supp. 426, 428-429 (S.D.N.Y.1985). The doctrine "presupposes an absolute acknowledgment or admission of a certain sum due, or an adjustment of accounts between the parties, the striking of a balance, and an assent, express or implied, to the correctness of the balance." Falcone v. Paradiso, 60 App. *583 D.C. 348, 350, 54 F.2d 715, 717 (1931) (citations omitted). In this case there was certainly no "assent . . . to the correctness of the balance" because, even after Eagle received the check from DPW, it sought roughly $8 million more in additional costs. Eagle never "agreed" that the amount sent by DPW was "the amount due."
Under D.C.Code § 2-302.05(d)(2), Eagle was entitled to recover "costs actually incurred." The CAB determined that the payments made to Eagle by the District exceeded the costs Eagle actually incurred in performing the contract, and that the District was therefore entitled to recover the excess amount. This is certainly not an unreasonable interpretation of the statute, to which we owe deference. See Belcon, 826 A.2d at 384. Moreover, if the government overpays a party with whom it has contracted, it is almost always entitled to a refund. See United States v. Wurts, 303 U.S. 414, 415, 58 S.Ct. 637, 82 L.Ed. 932 (1938) ("The Government . . . can recover funds which its agents have wrongfully, erroneously, or illegally paid"). The District therefore has a right to recover the balance of the payments it made to Eagle in excess of Eagle's actual costs, and the CAB did not err in so concluding.
V
For the reasons stated, we affirm in part and reverse in part the order of the Superior Court from which this appeal is taken. The case is remanded to that court, with directions to remand it to the CAB for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded for further proceedings.
NOTES
[*] Judge Terry was an Associate Judge of the court at the time of argument. His status changed to Senior Judge on February 1, 2006.
[1] As the District points out in its brief:
Technically, this is an appeal under D.C.Code § 11-721(a)(1) (2001) from [a] decision of the Superior Court, which had initial jurisdiction because the case, an appeal involving a bid protest, is not a "contested case" within the meaning of the D.C. Administrative Procedure Act, D.C.Code § 2-502(8) (2001). However, when reviewing the decision of the Superior Court in an agency-review case, this court essentially undertakes a de novo review of the decision of the agency, applying an identical scope of review. Thus, as a practical matter, it is the decision of the CAB that this court reviews.
[2] Between 1992 and 1995, Eagle submitted invoices and received payments from the District totaling $2,070,056. In 1996 the District paid Eagle an additional $1,071,966, which brought the total payment amount to $3,142,022. The CAB determined that Eagle's "costs actually incurred" added up to only $2,182,059. The difference between those two figures is $959,963.
[3] D.C.Code § 2-302.05(d)(1) (2001) provides:
[With an exception not pertinent here], a contract which is entered into in violation of this chapter or the rules and regulations issued pursuant to this chapter is void, unless it is determined in a proceeding pursuant to this chapter or subsequent judicial review that good faith has been shown by all parties, and there has been substantial compliance with the provisions of this chapter and the rules and regulations.
[4] This requirement was not met. Eagle's interim facility in nearby Capitol Heights, Maryland, was too small to process 100 percent of the recyclables delivered by the District, so Eagle contracted with Consolidated Waste Industries ("CWI") to process what it could not handle. Eagle continued to use the CWI facility and services for the duration of its contract with the District and, according to the CAB and the trial court, performed other recycling contracts at its interim facility in Maryland as well. Eagle disputes that it performed significant recycling work for parties other than the District.
[5] As of April 15, 1994, the date of the CAB's ruling, Eagle had not begun construction of its District of Columbia facility. Eagle finally purchased a site for it on January 14, 1995, and notified DPW on February 6, 1995, that it had done so. Eagle eventually completed construction of the facility and used it to process recyclables for the District under subsequent "emergency" contracts.
[6] DPW appealed from the CAB's decision. The Superior Court dismissed the appeal, and this court affirmed that dismissal. Francis v. Recycling Solutions, Inc., 695 A.2d 63 (D.C. 1997).
[7] Eagle subsequently increased its demand to $6,710,757.22. It also submitted claimed costs to the District's auditors in the Office of the Inspector General totaling $4,331,706, plus an additional $5,548,367 for acquisition and construction of the District-based recycling facility.
[8] DPW finally complied with the CAB's order on June 15, 1995, when it sent a letter to Eagle directing Eagle to cease "all designs and construction related activities" and warning that "[a]ny continued work by Eagle, including construction of the processing facility or the buy-back center, will be considered as being performed for Eagle's own benefit and at Eagle's own risk."
[9] D.C.Code § 2-302.05(d)(2) provides:
If a contract is void, a contractor who has entered into the contract in good faith, without directly contributing to a violation and without knowledge of any violation of the chapter or rules and regulations prior to the awarding of the contract, shall be compensated for costs actually incurred.
[Emphasis added.]
[10] DPW extended the emergency contract for another 120 days, and later awarded Eagle a new contract to provide recycling services through January 31, 1997.
[11] This figure comes from the $1,071,966 "settlement" check plus the $2,070,056 the District paid Eagle pursuant to invoices under the contract from 1992 to 1995. See note 2, supra.
[12] Eagle claimed total costs of $9,494,907.
[13] The CAB ruled that, under D.C.Code § 2-302.05(d)(2), "costs actually incurred" are those which are "properly allocable to the work, are reasonably incurred, and are allowable under the applicable cost principles." Stated more concisely, "actual costs must be reasonable costs."
[14] This appears to have been the CAB's principal reason for disallowing start-up and construction costs. In support of its decision, the CAB said, "The OIG disallowed all of the claimed facility costs principally on the basis that the bilateral modification made clear that the facility was Eagle's private facility and its sole responsibility" (emphasis added).
[15] The court rejected Eagle's argument that it was entitled to costs under the "termination for convenience" clause of the contract, ruling that the clause did not apply because the contract was declared void ab initio and was therefore subject to the provisions of D.C.Code § 2-302.05.
[16] Eagle's reliance on John Reiner & Co. v. United States, 163 Ct.Cl. 381, 325 F.2d 438 (Ct.Cl.1963), cert. denied, 377 U.S. 931, 84 S.Ct. 1332, 12 L.Ed.2d 295 (1964), is therefore misplaced, because that case involved a contract that was terminated for convenience. Moreover, the court said, the contract was "lawful, not void." Id. at 389, 325 F.2d 438, 325 F.2d at 442.
[17] The trial court upheld this finding, apparently relying on United States v. Amdahl Corp., 786 F.2d 387, 393 (Fed.Cir. 1986). In Amdahl the court held that when a contract is declared void ab initio, the "innocent" contractor may recover the value of benefits conferred to the government in the form of goods and services under the theory of quantum meruit. Exclusive reliance on that case's quantum meruit analysis would be in error because, as the CAB explained in Prince Construction Co., CAB No. P-530, 45 D.C. Register 8784 (December 4, 1998):
Section [2-302.05](d)(2) goes beyond the federal quasi-contractual approach by not limiting an innocent contractor's recovery to quantum meruit based on a benefit conferred on the government. The section authorizes the innocent contractor to recover its actual costs of performance even if the government has received little or no benefit. [Emphasis added.]
But neither the CAB nor the trial court relied exclusively on the fact that no benefit was conferred on the District in determining that Eagle was not entitled to start-up costs. That was merely one of several factors leading to the conclusion that the District should not bear the costs of construction.
[18] Eagle argues that the only work being done at the facility was on the District's behalf. As the District correctly observes, however, "the point is that the facility was not used for the contract in question, which Eagle ceased performing on April 30, 1995" (emphasis added). Thus any recycling jobs performed on behalf of the District under the emergency contracts are irrelevant to the determination of costs actually incurred as a result of the void contract.
[19] Moreover, Eagle's contention that "the OIG based its `commercial value' analysis on the impracticability language of . . . the contract's voided cancellation clause" is unfounded. Though the OIG obviously considered the practicability of continued use of the District-based facility, it also considered other factors, such as the economic value of the facility and the projects actually being performed there, in order to make an overall determination of the costs actually incurred by Eagle (which was the stated objective of the audit).
[20] We also reject, however, the District's contention that the Procurement Practices Act supersedes the common law theories upon which Eagle relies. This argument is not only unsupported by precedent but also contrary to section 818 of that Act, D.C.Code § 2-308.18 (2001), which states: "The provisions of this chapter are not exclusive, and the remedies provided for shall be in addition to any other remedies provided for in any other law or available pursuant to common law" (emphasis added). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263122/ | 893 A.2d 1067 (2006)
391 Md. 374
CANAJ, INC.
v.
BAKER AND DIVISION PHASE III, et al.
No. 72, September Term, 2005.
Court of Appeals of Maryland.
March 6, 2006.
*1069 Michael S. Rubenstein, Baltimore, for appellant.
Kyriakos P. Marudas, Asst. City Solicitor (Ralph S. Tyler, City Solicitor and William R. Phelan, Jr., Principal Counsel of Baltimore City Department of Law, Baltimore), on brief, for appellees.
Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.
*1070 CATHELL, J.
Between March 14, 2003, and June 29, 2004, the Circuit Court for Baltimore City foreclosed Canaj, Inc.'s (appellant) right of redemption to a number of properties sold at a tax sale on August 8, 2001. Appellant had moved to dismiss the foreclosure proceedings as to only two of the properties, 523 Senker Place and 2300 Brunt Street. It filed no prejudgment motions to dismiss as to any of the other of its properties. As to those two properties only, the foreclosure actions were dismissed by express agreement of the parties.
After having failed to file any prejudgment motions to dismiss in respect to any of the other properties on the grounds here raised, appellant, following the foreclosure, on August 19, 2004, moved to vacate all of the judgments and void the tax sales as to the other properties based on fraud, mistake or irregularity. The trial judge denied the motions and appellant filed an appeal in the Court of Special Appeals. This Court, on its own motion, granted certiorari before the case was heard by the intermediate appellate court. Canaj, Inc. v. Baker and Division III, 389 Md. 398, 885 A.2d 823 (2005).
I. Facts
Appellant was the owner of fourteen properties located in Baltimore City ("City"). For over seven years appellant failed to pay property taxes, leading the City to attempt to dispose of the properties at a tax sale. Baker and Division III[1] ("Baker") purchased the properties at the tax sale on August 8, 2001. Baker filed timely complaints seeking to foreclose appellant's rights of redemption on November 5, 2001. The proceedings were consolidated into two separate cases in the Circuit Court for Baltimore City: 24-C-01-005462 ("5462") and 24-C-01-005463 ("5463").[2] The court issued judgments foreclosing appellant's right of redemption on March 14, 2003 (571 Baker Street);[3] April 27, 2004 (592 Baker Street); May 11, 2004 (575 Baker Street); and June 29, 2004 (588 Baker Street); and on June 11, 2004, for all the properties in case 5462.
On August 19, 2004, forty-one days after the last foreclosure judgment was entered, appellant, represented by new counsel, *1071 filed a motion seeking in essence, vacation of the judgments based upon allegations of fraud, mistake or irregularity. The Circuit Court held a hearing on the motion on April 4, 2005, and on April 5, 2005, it filed an order making the following findings:
"1. That there was no fraud, mistake or irregularity within the meaning of Maryland Rule 2-535.[4]
"2. That there is no lack of jurisdiction or constructive fraud as defined in Section 14-845 of the Tax-Property Article of the Maryland Code.
"3. That the City of Baltimore is precluded from collecting any taxes [against the original owner] on the properties included in the above-referenced case."[5]
Appellant subsequently filed this appeal.
The following questions are presented for our review:
"1. Did the circuit court have jurisdiction to enter judgments foreclosing the right of redemption on the Appellant's properties in view of the fact that a requirement of the applicable statute was ignored causing the properties to be illegally included in the special tax sale held by the Mayor and City Council of Baltimore City?
"2. Did the lower court lack jurisdiction to enter judgements foreclosing the right of redemption on Appellant's properties because of constructive fraud?
"3. Did the lower court deprive the Appellant of its properties without due process of law in violation of the Declaration of Rights of Maryland and the Fourteenth Amendment of the United States Constitution?"
We shall hold for the reasons that follow that the Circuit Court properly entered the judgments of foreclosure against the *1072 appellant, that Baltimore City's actions did not constitute constructive fraud, and that appellant's due process rights were not violated.
We shall first address some threshold issues presented at the trial court level in respect to the motions to vacate, which were not resolved due to the trial court's reliance on other reasons in support of its judgment. We shall address the unresolved issues because we necessarily must confront them as they concern a condition precedent to challenging a tax sale where it is conceded that taxes are sufficiently delinquent to authorize a tax sale. See Brewer v. Brewer, 386 Md. 183, 872 A.2d 48 (2005). Even though we shall be holding that the condition precedent has not been met, and we shall also hold that appellant waived the issues it now raises in respect to the relevant tax sales, we shall, nonetheless, address the issues actually decided by the trial court because they raise very important issues; issues that will continue to arise in tax sale proceedings, especially in Baltimore City where tax sales are used to address the City's very real problem with abandoned and vacant properties.
Although not presented in the appellant's or the City's briefs, we address the condition precedent issue and we shall also discuss the unresolved waiver issue, both pursuant to Maryland Rule 8-131, which provides in relevant part:
"(a) Generally. The issues of jurisdiction of the trial court over the subject matter and, unless waived under Rule 2-322, over a person may be raised in and decided by the appellate court whether or not raised in and decided by the trial court. Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.
. . .
"(2) No prior appellate decision. Except as otherwise provided in Rule 8-304(c), when the Court of Appeals issues a writ of certiorari to review a case pending in the Court of Special Appeals before a decision has been rendered by that Court, the Court of Appeals will consider those issues that would have been cognizable by the Court of Special Appeals."
Judge Raker, writing for the Court in Jones v. State, 379 Md. 704, 712-13, 843 A.2d 778, 783 (2004), discussed the second sentence of Rule 8-131(a), opining that:
"The second sentence of Rule 8-131(a) sets forth the general proposition that an appellate court ordinarily will not consider an issue that was not raised or decided by the trial court. The plain language of the rule, however, makes clear that the prohibition is not absolute. See Crown Oil v. Glen, 320 Md. 546, 561, 578 A.2d 1184, 1191 (1990) (noting that, inasmuch as Rule 8-131(a) employs the term `ordinarily,' it permits exceptions, and appellate courts have occasionally decided cases on issues not previously raised). The word `ordinarily' in Rule 8-131(a) anticipates that an appellate court will, on appropriate occasion, review unpreserved issues. This has been the practice of the Maryland appellate courts, as well as of the federal courts and our sister states, dating well before Rule 8-131(a). See Atlantic Mutual v. Kenney, 323 Md. 116, 122, 591 A.2d 507, 510 (1991) (noting that Rule 8-131(a) is simply enunciatory of the practice which has existed since 1825); see also Annot., Issue First Raised on Appeal, 76 A.L.R. Fed. 522 (1986). In State v. Bell, 334 *1073 Md. 178, 638 A.2d 107 (1994), we concluded:
`It is clear from the plain language of Rule 8-131(a) that an appellate court's review of arguments not raised at the trial level is discretionary, not mandatory. The use of the word "ordinarily" clearly contemplates both those circumstances in which an appellate court will not review issues if they were not previously raised and those circumstances in which it will.'
Id. at 188, 638 A.2d at 113. Thus, under the Rule, an appellate court has discretion to excuse a waiver or procedural default and to consider an issue even though it was not properly raised or preserved by a party."
The first sentence of subsection (a) of the rule is as relevant as is the second sentence, especially considering the circumstances at issue in this case.
As this Court has stated before, the primary purpose of the Rule "is `to ensure fairness for all parties in a case and to promote the orderly administration of law.'" State v. Bell, 334 Md. 178, 189, 638 A.2d 107, 113 (1994), (quoting Brice v. State, 254 Md. 655, 661, 255 A.2d 28, 31 (1969), quoting Banks v. State, 203 Md. 488, 495, 102 A.2d 267, 271 (1954)); Basoff v. State, 208 Md. 643, 650, 119 A.2d 917, 921 (1956).
In order to ensure that fairness, Judge Raker for the Jones Court stated that "appellate courts should make two determinations concerning the promotion or subversion of 8-131(a)'s twin goals." 379 Md. at 714, 843 A.2d at 784. "First, the appellate court should consider whether the exercise of its discretion will work unfair prejudice to either of the parties" and "[s]econd, the appellate court should consider whether the exercise of its discretion will promote the orderly administration of justice." Id. at 714-15, 843 A.2d at 784. In the case sub judice, the condition precedent issue appears to have been presented below, but not decided. Because, as explained below, the Circuit Court correctly denied appellant's motions to vacate the judgments based upon statutory provisions, addressing the condition precedent and waiver issues under the Rule does not unfairly prejudice either party. There are no contested facts relating to whether the taxes have, in fact, been paid. All parties to the present appeal agree that taxes have not been paid. By addressing the issue we merely state what the law is, and what the trial court should have found the law to be had it resolved the issue of the "condition precedent." Moreover, it appears that there are literally thousands (5,000 or more) of abandoned or vacant properties creating such severe problems for the City of Baltimore that it is attempting to resolve some of them by the tax sale process. Finally, by resolving the unresolved (but presented below) issue, we thereby promote the orderly administration of justice.
What occurred here may be an unusual attempt to avoid altogether the responsibility of owners to pay property taxes and an attempt to avoid compliance with the requirements imposed upon taxpayers relating to the right to redeem in tax sale cases. In order to redeem, the delinquent taxpayer has to tender all of the taxes, interest and costs of sale to the Collector or to the holder of the certificate.[6] Md. *1074 Code (1985, 2001 Repl.Vol.), § 14-828 of the Tax-Property Article.
During the hearing on the motion to vacate the judgments foreclosing appellant's rights of redemption, there was an extensive discussion regarding the amount of taxes owed and the delinquent owner's failure to timely redeem the properties. The following is an excerpt of the pertinent parts of that discussion.
THE COURT: Well how much difference between the taxes owed and the amount paid, was there? Was it an unconscionable difference ...
[Appellant]: Oh, yes. The taxes owed... on the case ending in 62 ... were $128,000.00, and the non-profit paid $6,400.00 for the property, and the value of the properties were $122,000.00.
THE COURT: And the taxes owed were how much?
[Appellant]: $128,534.70. That's in case ending in 62 [case number 24-C-01-005462].
. . .
THE COURT: And the amount paid [for the property at the tax sale] was?
[Appellant]: On that one was $6,408.70. And on the other case, Case Number ending in [54]63, I believe if I'm not mistaken that the taxes were $55,020.00 and the Plaintiff paid $2,629.00
. . .
THE COURT: Well is the only reasonwhat I was trying to get at is the only reason we're here is because your client believes he is liable for the deficiency.
[Appellant]: No, your Honor, we're here because my Client wants the properties and may in fact have something planned to do with the properties and would have done so, but for the fact that the City illegally put these into this tax sale.
THE COURT: What amount would he have had to tender to redeem?
[City]: Your Honor, he would have had to tender the full amount [of] taxes due on the properties. Of course, interestingly, if for some reason we were to vitiate these ... Judgments, then paradoxically then those obligations ... plus additional interest ... because they have not been redeemed, and interest continues to accumulate daily. ...
[Appellant]: And my Client [is] fully aware of that, your Honor, that he's responsible for the taxes, but the point we're here today on is the fact that this sale was illegal. ...
. . .
THE COURT: So if this were a regular tax sale, the amount involved would have been at that time $128,534.00? [Emphasis added.]
Although appellant acknowledged that it was responsible for the taxes owed, it never, at the hearing or at any other time, directly proffered that it was ready, willing and able to pay the amounts, or to pay undisputed amounts, and, more importantly, it has not paid any of the delinquent taxes and charges due.
Tax-Property Article, Section 14-828, in relevant part, requires:
*1075 "§ 14-828 Required payments; ...
(a) Payments to collector: If the property is redeemed, the person redeeming shall pay the collector:
(1) the total price paid ... together with interest;
(2) any taxes, interest, and penalties paid by any holder of the certificate of sale;
(3) any taxes, interest, and penalties accruing after the date of the tax sale;
(4) unless the party redeeming furnishes the collector a release or acknowledgment executed by the plaintiff or holder of the certificate of sale that all actual expenses or fees ... have been paid to the plaintiff or holder of the certificate of sale, any expenses or fees for which the plaintiff or the holder of a certificate of sale is entitled to reimbursement under § 14-843 of this subtitle; and
(5) for vacant and abandoned property sold under § 14-817 of this subtitle for a sum less than the amount due, the difference between the price paid and the unpaid taxes, interest, penalties, and expenses.
...
(c) Notice to holder of certificate; certificate of redemption. On receipt of the proper amount, the collector shall notify the holder of the certificate of sale that the property has been redeemed and that on surrender of the certificate of sale all redemption money excluding taxes received by the collector will be paid to the holder." (Emphasis added.)
By attacking the sale procedure in a post-judgment motion to vacate, instead of paying the taxes and charges which it would have been required to do in order to redeem prior to judgment, the taxpayer appears to be seeking to have the title of the property revert back to the delinquent taxpayer without having to ever redeem by paying the overdue and due taxes. This Court long ago rejected such practices, albeit in an equity case (but an equity case in which the court recognized the requirement of payment as part of the tax sale procedure.). Steuart v. Meyer, 54 Md. 454 (1880). In Steuart, as similar to the case at bar, the assigns of a delinquent taxpayer filed an injunction after the sale had been ratified, requesting that title to the subject property not be conveyed to the tax sale purchaser because of what they termed procedural irregularities, alleging that the sale had been prematurely held in respect to the published date of the sale. Id. at 461-62. The Court determined that the Collector was not allowed to conduct the sale on that particular date and that a delinquent owner normally would have had a right to seek to set aside the sale under some circumstances. Id. at 465. Such a right, however, was predicated upon the payment of all taxes due. The Court noted:
"After the final ratification of the sale, two several applications by petition were made to the court, by the present plaintiffs, for review and rescission of its order of ratification, upon the ground of illegality in the proceedings by the collector, and of surprise to the petitioners; but those applications were refused, and the petitions dismissed; and hence the present application by bill to the equity powers of the court.
. . .
"If the sale is so fatally defective as to be insufficient to vest a good title to the property in the purchaser, every reason would seem to require that the plaintiffs should have ample and speedy remedy to be relieved of the obstacle created by the collector's proceedings to the full *1076 enjoyment of their rights, and that the cloud upon the title to the property should at once be removed. They are interested only in the annual ground rents, and in the estate of the reversion; they are not entitled to the possession, and could not, therefore, sue in ejectment for the recovery of the property. Under the circumstances of this case, without resort to a proceeding like the present, the parties would be without adequate remedy for relief against the effect of the prima facie title in the purchaser. In such cases, equity asserts complete jurisdiction to remove the cloud from the title of the property involved, and to prevent unnecessary and vexatious litigation.
"But, as a condition upon which this equitable jurisdiction should be exercised, for the relief of the plaintiffs, they should be required to pay, or bring into court to be paid, to the party entitled to receive it, the full amount of the taxes in arrear at the time of the sale by the collector together with the interest accrued thereon to the time of payment, and also all taxes that have subsequently accrued due on the property, with interest; and upon the full payment of such sums, the plaintiffs should then have the relief prayed by them. This requirement in regard to the payment of taxes is substantially in accordance with what would have been required if the sale, as reported to the Circuit Court of the city, had been excepted to, and had been set aside, and a re-sale made by the collector. Act of 1874, ch. 483, sec. 51. And we think it but right that the relief sought in this proceeding should be granted only on substantially the same terms as those prescribed by the statute, where the sale is set aside by the court to which it is reported. When, therefore, the plaintiffs pay, or bring into court to be paid, the sums due for taxes, they will be entitled to a decree, declaring the sale, and the order of confirmation thereof, to be null and of no effect, and that the deed of the collector be cancelled; and they will also be entitled to an account of the ground rents as prayed by them. And to the end that such relief may be afforded, we shall reverse the decree appealed from and remand the cause."
Id. at 462, 467-68 (citations omitted) (emphasis added).
Though Steuart was decided before the consolidation of the equity and law courts, the Court very specifically based its equity requirement of the payment of taxes as a pre-requisite of seeking equity relief on the fact that had the delinquent taxpayer sought recourse under the tax sale provisions then in effect, the payment of taxes would have been a prerequisite to maintaining the suit. This was clearly recognized, and stated as the law in Reth v. Levinson, 135 Md. 395, 399, 109 A. 76, 77 (1919), a case that proceeded under the tax sale jurisdiction of the court. Referring to Steuart, we said in Reth, that:
"[Payment of all taxes] is a proper requirement of one seeking the aid of a Court of Equity, who claims to be the owner of the property. He should at least be required to pay all taxes due and interest before a Court of Equity should exercise its equitable jurisdiction, and JUDGE ALVEY [in the Steuart case] called attention to the fact that it was substantially what would have been required if the sale, as reported to the Court, had been excepted to, set aside and a resale made by the collector. ..."
Reth, 135 Md. at 399, 109 A. at 77.
We further acknowledged the Steuart language in a case in which the owner of property was alleging that the price bid at a judicial sale was insufficient and we compared *1077 that fact to the situation where a delinquent taxpayer had not paid the taxes and charges due on the property. We said in the mortgage foreclosure sale case of Preske v. Carroll, 178 Md. 543, 550-551, 16 A.2d 291, 295 (1940), albeit as dicta, that:
"Moreover, under the maxim that `he who seeks equity must do equity,' no exceptant to a sale is entitled to obtain the aid of a court of equity unless he offers to pay a higher price for the property, or at least gives assurance that some other person would be likely to do so, even though there may be some irregularity in the conduct of the sale. In this case the appellant has given no assurance that he would bid on the property if sold again. He has made no offer to pay the costs of the proceedings or any expenses of the sale. He has made no promise to pay the interest or taxes in arrears. For example, in proceedings to vacate tax sales, the complainants are generally required to pay all taxes in arrears at the time of the sale, as well as all taxes subsequently due, as a condition precedent to the exercise of chancery jurisdiction. Steuart v. Meyer, 54 Md. 454, 468. Likewise the court, in foreclosure proceedings, should not set aside a reported sale and order a resale as a mere experiment, but only when it is reasonably probable that a better price could be obtained at another sale." (Emphasis added.)
In a proceeding where the heir of the delinquent taxpayer sought to redeem within the redemption period, by paying the amount of the taxes, and the tender of taxes was refused in that the tax sale purchaser was attempting to require the redeemer to pay for improvements he had made during the redemption period, we, in rejecting the tax sale purchaser's position, restated the general rule: "So we can definitely state as a corollary that whenever land has been sold at a tax sale, the owner may redeem it only by tendering the full amount of the purchase money and such additional sums to cover interest, penalties, costs and reimbursement for improvements as the statute requires." Stewart v. Wheatley, 182 Md. 455, 460, 35 A.2d 104, 107 (1943).
We have never overruled the holding of our cases that where it is admitted (or proven) that there are delinquent taxes due, in order to challenge the holding or ratification of the tax sale or to seek to vacate a judgment of the foreclosure of the equity of redemption, the taxpayer must first pay to the Collector or the certificate holder the total sum of the taxes, interest, penalties and expenses of the sale that are due. While not recently addressed, it remains the law in this State.
Several other states adhere to the principle that, in order to sustain a claim to void a tax sale, the delinquent taxpayer must tender the amount owed in taxes. Fibelstad v. Grant County, 474 N.W.2d 54 (N.D.1991); Ottaco Acceptance, Inc. v. Huntzinger, 268 Neb. 258, 682 N.W.2d 232 (2004); Liggett v. Church of Nazarene, 291 Ark. 298, 300-01, 724 S.W.2d 170, 172-73 (1987) (holding that the property at issue was church property and accordingly exempt from taxes but noting that generally under a statute a claimant must file an affidavit that he has first "tendered ... the full amount of all taxes and costs" in order to challenge the validity of a tax sale); Kapp v. Vahlberg, 299 P.2d 159, 161-62 (Okl.1956) (holding that where an actual tender is asserted in the pleadings the timing of the deposit of the sum is at the court's discretion so long as the sum is deposited before any judgment in favor of the taxpayer is rendered).
The Supreme Court of North Dakota found that a trial court erred when it decided to grant relief to a bank that had *1078 successfully challenged a tax sale. Fibelstad, 474 N.W.2d at 62. Under North Dakota's tax sale statute, that state's supreme court determined that the lower court was not authorized to proceed against the tax sale purchaser until the person or entity challenging the sale deposited the amount owed with the clerk. The court concluded that although the statute was enacted primarily for the benefit of the county, it was enacted to prevent the challenger of the tax sale from escaping payment of the taxes. The court refused to dismiss the bank's claim completely, stating:
"[W]e have interpreted the statute as a codification for tax title purposes of the equitable principle that one who seeks equity must do equity. In other words, the failure to make the deposit postpones the granting of any affirmative relief to the challenger of the tax title. In the words of the statute, `the court shall not proceed. ...' The Bank cannot proceed with the summary judgment until the deposit is made."
Fibelstad, 474 N.W.2d at 62 (citations omitted). The Supreme Court of Nebraska has held that under Nebraska Revised Statutes § 77-1844 (Reissue 1996), which provides:
"No person shall be permitted to question the title acquired by a treasurer's deed without first showing that he, or the person under whom he claims title, had title to the property at the time of the sale, or that the title was obtained from the United States or this state after the sale, and that all taxes due upon the property had been paid by such person or the persons under whom he claims title as aforesaid." (Emphasis added.)
A person challenging the validity of a tax deed had to pay all taxes before or during the action in which the tax title is challenged. Ottaco, 268 Neb. at 262, 682 N.W.2d at 236. In Ottaco, the tax sale purchaser initiated an action to clear the title of the property.[7] A hearing was held *1079 on October 30, 2002. The delinquent taxpayers paid the taxes on January 24, 2003, and the trial court entered judgment against the tax sale purchaser on January 30, 2003. The Supreme Court of Nebraska reversed the judgment because the payment of the taxes was never submitted into evidence during trial and, as a result, the delinquent owners failed to show that taxes had been paid. Id. at 262, 682 N.W.2d at 236.
Some courts view the delinquent taxpayer's failure to pay as a jurisdictional bar upon the courts. In Florida, by statute, the courts do not have jurisdiction to void tax sales when the taxpayer has not paid the amounts due. United Bhd. of Carpenters and Joiners of Am. v. Graves Inv. Co., 153 Fla. 529, 15 So.2d 196 (1943). In reaching this conclusion that court stated:
"[T]his section `requires the owner of the property seeking to cancel tax certificates outstanding but alleged to be invalid to pay those taxes legally due which could have been lawfully assessed, "whether such real estate shall have been returned for assessment by the owner thereof or not."'
"Where this statute is appropriately applicable, a compliance therewith is a condition precedent to the acquisition of jurisdiction by the court to enter a decree cancelling a tax certificate. So since the statute is here constitutionally applicable ... to hold the decree valid without a compliance therewith would in effect frustrate the very purposes for which it was enacted and nullify the very terms thereof, insofar as the parties to this appeal are concerned."
Id. 153 Fla. at 533, 15 So.2d at 198 (citations omitted).
In some other states actual deposit of the money owed is not necessary to proceed with the action: "[W]hen tender of the amount due is made in the pleadings, as defendants did in this case, the time of deposit is left to the trial court's discretion, so long as same is deposited prior to rendition of judgment in favor of the party making the tender." Kapp, 299 P.2d at 161-62. The Supreme Court of California has held that although the delinquent taxpayer may not quiet his title to property purchased by others at a voidable tax sale unless he first pays the taxes and is entitled to no relief unless he pays the taxes, the tax sale purchaser may, in some circumstances, nonetheless be precluded from obtaining immediate clear title to the property absent further proceedings. Newcomb v. City of Newport Beach, 12 Cal.2d 235, 83 P.2d 21 (1938); Ditmers v. Rogers, 100 Kan. 115, 163 P. 795 (1917); Le Blanc v. Babin, 197 La. 825, 843, 2 So.2d 225, 231 (1941) (applying a specific constitutional provision that upon the finding of a void tax sale, relief could be granted to the delinquent taxpayer only "upon payment to the [tax sale purchaser] of the amount found to be due").
In Warn v. Tucker, 236 Iowa 450, 456, 19 N.W.2d 201, 204 (1945), the Supreme Court of Iowa stated:
*1080 "`The [tax] deed upon its face is valid, and the plaintiff asks a court of equity to set it aside. This should not be done unless the plaintiff is willing and offers to do equity; that is, pay the taxes or amount paid by the purchaser. In aid of this well-established rule in equity public policy may be invoked, for the public welfare requires that taxes should be paid, and that where the owner fails, other persons will do so by purchasing the land when offered for sale by the state and county. ... The purchaser should therefore be protected to the extent that the right obtained should not be set aside except on condition of repayment by the owner, provided the taxes have been legally levied, and have not been paid.'"
The Supreme Court of Colorado, upon finding that tax sales were voidable, has required the delinquent taxpayers to deposit in court all the taxes owed plus interest and expenses before granting the delinquent taxpayer any relief. Blue River Co. v. Rizzuto, 135 Colo. 472, 312 P.2d 1023 (1957); Empire Ranch & Cattle Co. v. Lanning, 49 Colo. 458, 113 P. 491 (1911). In Illinois, the delinquent taxpayer must pay all taxes owed even if the tax sale would otherwise be void. Kuhn v. Glos, 257 Ill. 289, 100 N.E. 1003 (1913). Under that state's statute, the court shall order the delinquent taxpayer to pay the owed amount within ninety days from the date the court finds that the tax sale should be vacated. If the owner fails to make the required payment within that time, the petition to set aside the tax sale must be denied with prejudice and the judgment awarding the tax deed to the purchaser becomes irrevocable. 35 Ill. Comp. Stat. 200/22-80 (1993, 2005 Supp.).[8]
In the case sub judice, appellant has not paid taxes, interest, penalties and expenses of the sales, yet does not in this appeal challenge the assertion that such charges are, in fact, due. In its brief, appellant suggests that it had at one point secured a purchaser for the property who might pay the taxes. The fact that potential purchasers may exist is not sufficient to satisfy the condition precedent, and, absent actual payment of taxes, is not relevant. We continue to hold that in order to challenge the foreclosure of the equity of redemption in a tax sale, the taxes and other relevant charges acknowledged to be due, either prior to the challenge or simultaneously with it, must, as a condition precedent, be paid. Appellant has not contested the fact that taxes are owed, or in this appeal, the amounts. There is no issue as to his obligation to pay the taxes. If we were to overrule our cases holding that payment is first required, the City would be left where it was before the tax sale. The public would be burdened perpetually with the problems created by the thousands of abandoned properties, which the delinquent owners would be unlikely to ever pay taxes on or ever to rehabilitate.
Appellant failed to satisfy the condition precedent to its rights to seek a vacation of the foreclosure judgments. For this reason alone, appellant is not entitled to prevail in its challenges.
In its brief the City also alleges that appellant waived the issues presented in the case sub judice. This waiver, according *1081 to the City, occurred when appellant waited until after the thirty days available to modify the judgment had elapsed before bringing the issues it now raises as to the properties in this case to the trial court's attention. During the hearing on the motion to vacate the judgments the City consistently pointed to that fact in asking the court to dismiss appellant's motion.
The court at the motion to vacate hearing recognized this issue, stating to appellant: "So now you want me to consider things not originally raised, and I'm willing to do that. ..." Later in the hearing, the issue was brought up when the court asked appellant whether it had already had an opportunity to redeem. Appellant answered that he had an opportunity to redeem, but had not done so because it believed that all the motions for foreclosure had been dismissed.[9] Appellant's belief, it stated, was based upon the fact that motions to dismiss had been granted as to two of the properties. The City then told the court:
"[T]hat's the reason why we're here to-day, because only one (1) [property] the one that was filed on originating motion [in one of the cases] was, of course, finally dismissed by [the Circuit Court]. So you had the other ones [in that case] that were still open, ... notice was given about that one dismissal and there wasn't an effort made to correct that. ..."
Later, the City explained its position during the hearing on the motion to vacate when the court expressed its concern regarding the earlier motion to dismiss, which mentioned only one of the properties in each case:
"Right, but then I would think the Practitioner would have said, well there's a problem here, what about those other 11 or 12, or however number there are in these cases, what about those? Filed a Motion to correct the record and get that cleared up, or revise a Motion and that wasn't done, so everybody[] moved along, of course, Baker [] relied on the fact there's just one property [dismissed in each of the two cases], and [Baker] gets [its] Judgment and then thirty (30) days go by and it's not until August 2004, I'm not sure when the Judgment date is, but I know it was well past the thirty (30) days. In August, [appellant's counsel], is hired and files this Motion and now I think the analysis becomes, okay, we can't do general revisory power, we do fraud, mistake, and irregularity,. ... [Appellant's] representative knew precisely what was going on, because they raised the issue of the violation notice from the outset [as to two of the properties only] and had a timely opportunity to assert their rights, a timely opportunity to correct the record, as I said earlier, a timely opportunity to file a Motion to vacate the judgments, and all of these steps of the proceeding, they failed to do that, and now they're coming in at the proverbial eleventh hour, Judge, and are seeking to do what should have been done well, well, before.[[10]]
*1082 . . .
"And so, one [that] comes in with equity should have clean hands, and that's not the case here. So, for both the equitable perspective, from the perspective of legal issues, [appellant] simply fails at this time to assert its rights in a timely fashion. And, even though Deaner (sic) talks about five years later and all that, it's interesting that [it's] somebody who comes in as the Estate Administrator well beyond the period and says, I'm surprised, I didn't know. [Appellant] knew from the get go, filed [its] Motion, and just didn't follow up with the proper review and procedure to get this thing rectified, and at this point, I think as you said, things are [waivable], and there are also time lines that have to be construed. We didn't keep him in the dark about this. He argued what he needed to argue in front of [the Circuit Court]. He just didn't get the complete relief that he had anticipated. But then that called for further on his part, because we all got [the Circuit Court's] Order.
. . .
"I would agree, if [appellant] was kept in the dark about the violation notices, didn't have the opportunity to kindly present his objection, absolutely, we should be talking about it today, but, your Honor, they had that opportunity and they had the opportunities to revisewe all got the [appellant's] Motion that said it was one property [one property in each case], then when the Certificates came through, the Decrees, rather, they had thirty (30) days again, and so we're missing the boat here, on a number of different time periods that would have beenthat are there for [appellant's] benefit. And they just, quite frankly, your Honor, failed to do it. And, I think at this point, there needs to be a finality as they say, to certainto Judgments and to Decrees, and at this point, I think we're at that stage."
Baker's [the tax sale purchaser] counsel weighed-in on the issue, stating:
"[T]he [appellant] at that point, was only concerned about the deficiencies as to those particular lots and he was aware through Counsel, that the deficiencies if they existed, existed on all of the properties. And so, I would argue that he waived any argument that he would have in terms of the remaining fourteen (14) properties, because he didn't raise it in his Motion."
The court acknowledged the defect. It determined, however, that even if the objection had been raised with respect to the remaining properties, the result would likely be the same:
"Let me say again, the only difference is, they can sell properties regardless of whether or not there's a violation notice, and regardless of whether or not it's abandoned, as long as taxes are owed. And, the proceedings otherwise, are the same, except at the end they can turn around to the property owner and say look, you owe us the difference. Had that defense been raised in this case, and he hadyour client, had ample opportunity to raise it. If it were in front of me, I would not have dismissed the proceedings. I would have in the Order, that followed, because they did not comply with the requirements, deny them [the City] the right to recover any deficiency." [Emphasis added.]
We believe that the challenges to the foreclosure of the equities of redemption in these cases should have been dismissed on the failure of appellant to satisfy a condition precedent, i.e., to pay the taxes and charges, and we further believe that the present issues were waived by appellant's *1083 failure to raise them sufficiently prior to judgment as to the specific properties at issue here. We shall, however, for the reasons hereafter stated, address the issues actually resolved by the trial court for guidance in the thousands of future cases that might be filed.
As to the issues the trial court did resolve, we agree with his assessment that the City's failure to cite the properties only prevents recovery of the deficiency from the delinquent taxpayer. Section 14-817(c) of the Tax-Property Article under these circumstances does not prohibit the sale of the property in question.
II. Standard of Review
Maryland Code (1973, 2002 Repl. Vol.), § 6-408 of the Courts and Judicial Proceedings Article ("C.J."), Maryland Code (1985, 2001 Repl.Vol., 2005 Supp.), § 14-845(a) of the Tax-Property Article ("T.P."), and Maryland Rule 2-535, govern the ability of the trial courts to review their own judgments. Under the trial court's general review power as provided by Rule 2-535 and C.J. § 6-408, when a party files a motion to set aside a judgment more than thirty days after the judgment is entered, the grounds for setting aside the judgment are generally limited to instances of fraud, mistake or irregularity. In reviewing the decision below, "the only issue before the appellate court is whether the trial court erred as a matter of law or abused its discretion in denying the motion." In re Adoption/Guardianship No. 93321055/CAD, 344 Md. 458, 475, 687 A.2d 681, 689, cert. denied sub nom. Clemy P. v. Montgomery County Dep't of Soc. Servs., 520 U.S. 1267, 117 S.Ct. 2439, 138 L.Ed.2d 199 (1997).
In the context of tax sales, a judgment foreclosing an owner's right of redemption can be reopened, after thirty days have passed, on the grounds of lack of jurisdiction or fraud. T.P. § 14-845(a).[11] In addition, if the party seeking that the judgment be vacated bases its position on grounds of constructive fraud, the claim must be filed within one year from the date of judgment. Id. Although we have not previously stated the standard of review of a lower court's decision under this section, it stands to reason that the same standard used in reviewing decisions under C.J. § 6-408 and Rule 2-535(b) should be applied. The Rule and both statutes deal with the ability of the trial court to review its judgments.
III. Discussion
Appellant argues that the original tax sale was void at the time it took place because the properties were not vacant and the City of Baltimore failed to cite the properties as required under T.P. § 14-817(c), discussed infra. In appellant's view the City could not legally include its properties in the tax sale as a result of the defect, therefore, the Circuit Court lacked jurisdiction to foreclose the right of redemption. In the alternative, appellant argues that the tax sale was void due to constructive fraud and that the Circuit Court erred in denying its motions to dismiss *1084 (vacate) the judgments foreclosing appellant's right of redemption as to the properties that remain at issue. Under the particular circumstances of this case, we agree with the Circuit Court that the City of Baltimore complied with all of the essential requirements under the Tax-Property Article of the Maryland Code to conduct a general tax sale including (or limited to) the subject properties. Therefore, appellant's motion to vacate the judgment foreclosing its right of redemption based on this issue was properly denied.
A. Tax Sales
In order to sell property at a tax sale, the City must comply with a number of requirements, the first of which is that the owner must owe taxes on the property.[12]Kaylor v. Wilson, 260 Md. 707, 273 A.2d 185 (1971); Bugg v. State Roads Comm'n, 250 Md. 459, 243 A.2d 511 (1968); Mullen v. Brydon, 117 Md. 554, 83 A. 1025 (1912). The City must notify all other taxing agencies that a tax sale will be held. T.P. § 14-810. Thirty days prior to the first advertisement for the tax sale, notice must be mailed to the owner. T.P. § 14-812. The notice must state the name of the person, the amount of taxes due, and include a standard statutory notice. Id. Then, the City must advertise the tax sale once a week for four successive weeks in one newspaper of general publication. T.P. § 14-813. Once all of these steps have been completed the sale may proceed pursuant to T.P. § 14-817. All these requirements were met in the case at bar.
At the center of this case lies our interpretation of T.P. § 14-817 and whether the City may sell the delinquent property for an amount less than that owed in taxes, interest and expenses. The process of statutory interpretation always begins "`with an analysis of the language of the statute.'" Sweeney v. Sav. First Mortgage, L.L.C., 388 Md. 319, 326, 879 A.2d 1037, 1041 (2005) (quoting Holland v. Big River Minerals Corp., 181 F.3d 597, 603 (4th Cir.1999), cert. denied, 528 U.S. 1117, 120 S.Ct. 936, 145 L.Ed.2d 814 (2000)). The Court must determine whether the plain language of the statute is clear and unambiguous. Id.; Davis v. Slater, 383 Md. 599, 604-05, 861 A.2d 78, 81 (2004). The statute is ambiguous when there appear to be two or more reasonable alternative interpretations of its language. Stanley v. State, 390 Md. 175, 887 A.2d 1078 (2005); Greco v. State, 347 Md. 423, 429, 701 A.2d 419, 421 (1997). If the language is ambiguous, we must "look beyond the statute itself and into the legislative history for guidance as to the intent of [the Legislature] in passing the statute." Sweeney, 388 Md. at 327, 879 A.2d at 1041; Davis, 383 Md. at 605, 861 A.2d at 81. As Judge Battaglia stated for the Court: "[T]he goal of our examination is always to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by [the] particular provision. ..." Davis, 383 Md. at 605, 861 A.2d at 81.
*1085 The version of this section in effect at the time of the tax sales provides in pertinent part:[13]
" § 14-817. Sale at public auction.
. . .
(b) Sales price.(1) Except as provided in subsection (c) of this section, property may not be sold for a sum less than the total amount of all taxes on the property that are certified to the collector under § 14-810 of this subtitle, together with interest and penalties on the taxes and the expenses incurred in making the sale, and the lien for the taxes, interest, penalties, and expenses passes to the purchaser.
. . .
(c) Baltimore City.[[14]](1) In Baltimore City, abandoned property consisting of either a vacant lot or improved property cited as vacant and unfit for habitation on a housing or building violation notice may be sold for a sum less than the total amount of:
(i) all taxes on the property that are certified to the collector under § 14-810 of this subtitle;
(ii) interest and penalties on the taxes; and
(iii) expenses incurred in making the sale.
. . .
(3) The person responsible for the taxes prior to the sale shall remain liable to the collector for the difference between the amount received in the tax sale under this section and the taxes, interest, penalties, and expenses remaining after the sale.
. . .
(5) In a proceeding to foreclose the right of redemption under this subtitle, the complaint shall request a judgment for the city in the amount of the balance.
. . .
(7) The Mayor and City Council may institute a separate action to collect the balance at any time within 7 years after the tax sale if the plaintiff is a private purchaser." (Some emphasis added.)[15]
*1086 In appellant's view, the City does not have the authority to sell the properties for an amount less than that owed, unless it properly cites them as vacant or abandoned. Our interpretation of the statute, in light of the legislative intent supporting the enactment of subsection (c), does not yield such a result.
Before proceeding further we address an initial misinterpretation of the statute by appellant. During oral argument counsel for appellant contended that § 14-817(c) was not part of the general tax sale statute but a specific section dealing with a specific type of sale, and that as a result, any sale to be conducted in that manner was subject to the citation requirements of § 14-817(c). Appellant's counsel relied specifically on the headings of the subsection as they appeared in the appendix to his own brief, which read:
"TAX-PROPERTY ARTICLE § 14-817
§ 14-817(c). Sale at public auction
(c) Baltimore City.
(1) In Baltimore City ..." (Emphasis added.)
The title "Sale at public auction," inserted after the section number 14-817(c) in appellant's appendix to its brief, does not exist. By affixing the language "Sale at public auction" to § 14-817(c) in its appendix and then arguing that the section required a "special" tax sale, relying in part on that title improperly inserted in appellant's appendix, appellant has created a misleading inference.
In the statute itself, section 14-817(c) has no title. Subsequently, the codifiers added "Baltimore City." Appellant added to the copy of the statute in its appendix the words "Sale at public auction" and then at oral argument stated:
"But the sale itself is different than the regular tax sale. A regular tax sale is held a certain times of the year. This was a special tax sale held specially pursuant to the specific statute that allows a special tax sale. And that statute says that you can't include properties in an special tax sale unless it's an abandoned property that is either a vacant lot or an improved property that is unfit for habitation and has been cited as such on a violation notice.
. . .
"817(c) deals specifically, only with Baltimore City.
. . .
"817(c) (1) in Baltimore City, abandoned property consisting of either a vacant lot or improved property cited as vacant and unfit for habitation on a housing or building violation notice may be sold for a sum less ...
. . .
"If I may respectfully disagree on this point, if you look at the heading for 817(c) it is not a continuation of the general tax statute. It says "sale at public auction," and it is talking about a specific kind of auction. It is not part of the general tax sale, 817 the heading of that section says: `sale at public auction, Baltimore City,' and it talks specifically about a sale by Baltimore City for these properties. This is not just a continuation of the general tax sale, this is a specific section dealing with a specific auction for a specific municipality, under specific circumstances.
. . .
"[Y]es there were taxes due, but 817(c) is a specific section, for a specific municipality, for specific properties. And in this case the City did not comply with *1087 this in any manner whatsoever. ..." [Emphasis added.]
There is only one type of tax sale governed by section 14-817, of which part (c) is only a subsection, not a separate tax sale provision.
As we have stated, the language relied upon by appellant in support of its argument does not exist. To the extent appellant's argument relies on that erroneously inserted title, the argument fails. The statute does not require a special tax sale (at one point, however, the Deputy Mayor of Baltimore testified before a legislative committee during a subsequent modification hearing that "the law has embodied the basic concept of a separate sale. ..." Letter from Jeanne D. Hitchcock, Deputy Mayor, Baltimore City, to Members of the House Ways and Means Committee (Mar. 28, 2000)). The Mayor and City Council of Baltimore may have adopted a practice of separate sales, but the practice is not embodied in the statute at issue.
As stated, section headings and subheadings are usually added by the codifiers as an aid for the interpretation of the statutes. Unless those headings are part of the body of the statute, however, they do not have the force of law as they were never approved by the legislative body. While titles, headings and subheadings can shed light on legislative intent, normally they will only do so when they are part of the process of enacting the statute by the Legislature. See Stouffer v. Pearson, 390 Md. 36, 46, 887 A.2d 623, 629 (2005); Davis, 383 Md. at 605, 861 A.2d at 81. And, as noted, the title language relied on by appellant does not exist in the statute, or in the codification of the statute.
Section 14-817(c) provides that, in Baltimore City, "a vacant lot or improved property cited as vacant ... may be sold for a sum less than the total amount [owed]. ..." This section can reasonably be interpreted in two different ways. As appellant contends, under one of such interpretations, the City would be barred from conducting any tax sale at all if the properties are abandoned or vacant and it fails to adequately cite the properties. A second interpretation, one noted by the trial court, which we are adopting, is that the City is allowed to conduct the sale under its general tax sale process, but its failure to properly cite the properties prohibits the City from collecting the difference between the purchase price and the amount owed in taxes from the person who owned the property prior to the tax sale, that is to say there could be no deficiency judgment.
In order to resolve this apparent ambiguity, we first look at the statutory framework under which § 14-817 was enacted. In 1942, the Research Division of the Maryland Legislative Council wrote a report entitled "Tax Sales in Maryland, Research Report No 14." In the report, the Council determined that the lack of uniformity in the procedures involving tax sales created great confusion and uncertainty with regards to the rights of the tax sale purchasers. Due to that uncertainty, purchasers were not eager to buy property at tax sales and title insurance companies were refusing to guarantee titles of tax sale property. As a result, the Council concluded that the tax sale procedures should be simplified and standardized.
A year later, the Legislature enacted Chapter 761 of the Acts of 1943, which provided:
"81. SALE AT PUBLIC AUCTION. The sale shall be held on the day and at the place stated in the notice by advertising. The sale shall be held in the County in which the land to be sold is located. If the sale cannot be completed on such day, the Collector shall continue the same from day to day until all property *1088 included in the sale is sold. All sales shall be at public auction to the highest bidder, in fee or leasehold, as the case may be. No property shall be sold for a sum less than the total amount of all State and County taxes due thereon, and such other taxes as have been certified to the Collector under the provisions of Section 74 hereof, together with interest and penalties thereon and the expenses incurred in making the sale, and the lien for the same shall pass to the purchaser." (Emphasis added.)
The law was codified as Maryland Code (1951), Article 81, § 79, and later as Maryland Code (1957), Article 81, § 80 without any substantive modifications. Then, in 1985, the General Assembly enacted the Tax-Property article, adopting § 79 to be codified as § 14-817, without any changes relevant to this case. Chapter 8 of the Acts of 1985.
Almost fifty years after the initial passage of the statute, the City of Baltimore found itself at an impasse because of the provision emphasized above that properties could not be sold for less than the amount of delinquent taxes. There were a significant number of properties whose values were far less than the amount owed in taxes. Purchasers would not buy the properties for the amount of taxes owed, and the City was not allowed to sell them for a lesser amount. Accordingly, the delinquent property owners just kept owning and operating the properties without paying taxes. Each year the tax arrearage increased and made it even more difficult to sell the properties at tax sales. This created more abandoned properties and less habitable properties. If the owners improved the properties, they could possibly appreciate in value to the point at which they could be sold at tax sale. So, apparently, they were not being improved. As a result, House Bill 1251 was introduced in 1992 creating an exception for Baltimore City from the requirement that the properties be sold at no less than the amount owed in taxes, interest and expenses. This was the purpose of the legislation.
In support of the bill, Robert W. Hearn, the Commissioner of the Department of Housing and Community Development for Baltimore City, testified before the House Ways and Means Committee on March 4, 1992. He provided the following description of the situation:
"The kind of damage that an abandoned house inflicts on its neighborhood is well known. There is nothing that contributes so swiftly or substantially to neighborhood decline as an abandoned house, whether it's boarded up or left wide open to passersby. An abandoned house guarantees a drop in area property values, and consequently, a drop in the City's tax base. It collects trash and harbors rats; it attracts criminalsvandals and arsonists and drug dealers and other people engaged in dangerous and detrimental activity. The vacant property thus precipitates and contributes to a spiralling decline in the quality of urban life throughout the neighborhood.
"The rate of abandonment is increasing while the resources available to us for mounting any kind of effective resistance are shrinking. It is absolutely imperative, therefore, that we develop new approaches aimed at removing government obstacles and facilitating private rehabilitations. House Bill 1251 represents just such an approach by amending provisions in the tax sale process.
"Ironically, the tax sale processwhich should be providing a routine mechanism for moving abandoned property into the hands of rehabbershas become a major obstacle. As abandoned *1089 properties continue to deteriorate, the City must periodically respond to neighborhood requests for help in regard to the numerous crises that inevitably arise. For instance, we bait for rats, or replace window boards torn off by vandals, or remove the truckloads of garbage and trash that accumulate in the yard. The expenses of each intervention are posted as a lien against the property. These liens are equivalent to taxes. Therefore, when the property comes up next for tax sale, a private purchaser must pay all of these maintenance and repair costs in addition to the amount of the assessed tax. Because an abandoned property is worth very little to begin with, these tax liens can quickly outstrip its value. When this happens, of course, there will be no private purchaser at the tax sale. With no new responsible owner, the property continues to deteriorate and continues to accumulate additional emergency repair liens until it is again returned to a tax sale to repeat the process. In Baltimore City, tax sale certificates on this kind of vacant property expire in a year. When there has been no private purchaser within one year, or no foreclosure, the property simply goes into the next year's sale.
"House Bill 1251 restores the tax sale as a valuable tool for both tax collection and property acquisition by would-be rehabbers. It lets the City do what any private mortgage holder can do in a foreclosure salethat is, sell off the property for its market value and then get a judgment for the deficiency. By providing for a deficiency judgment, the bill discourages abandonment. Currenty [sic] owners will know that they cannot so easily walk away and expect the city to pick up the tab. And by providing for a market-value transfer, the bill will facilitate many title transfers that are now out of the question.
"The approach taken by this bill is a breakthrough in our long battle against abandoned property. We ask you to support House Bill 1251 in order to turn the tax sale into part of the solution instead of what is nowa large part of the problem." (Emphasis added.)
Subsequently, the Department of Fiscal services issued a fiscal note on the bill which stated:
"While this bill would allow the tax sale of property for less than the total amount of the debts against the property, the bill also provides that any shortfall resulting from the sale of the property for less than the debts against the property would remain a liability of the owner in the amount of the shortfall. Any shortfall resulting from the sale of the property for less than the debts against the property could still be collected via the owner of the property. Consequently, the City should neither gain nor lose under this bill, only, collect monies owed to it sooner than would be realized under the normal collection process."
Another fiscal summary also sheds light on the fact that the legislature's main concern was to allow the City to dispose of the vacant properties contributing to the decline of some of its neighborhoods at less than the amount of taxes owed. That summary provided:
"The City may be able to collect some monies faster by the process allowed by this bill. Also, some properties are `unsellable' at the rate needed to pay of all debtsbeing able to sell at a lower price might allow the City to collect a portion of these debts that would otherwise be unreachable." (Emphasis added.)
Such language demonstrates that the Legislature was fully aware that the City *1090 might never be able to find tax sale purchasers, or to collect the taxes owed on certain properties, under the then-existing statutory scheme.
Another important clue in ascertaining that it was the Legislature's intent that the primary purpose of the bill was to permit the City to sell properties for less than the taxes due can be gathered from the Floor Report of the Senate Budget and Taxation Committee, which expressly provided that "[t]his bill authorizes Baltimore City to sell certain abandoned property at a tax sale for less than the sum [owed]. ..." The floor report does not make any mention as to limits on the application of this section. It further provided, moreover, that "[t]he only impact upon City revenues under this Act would be the expedited collection of certain monies owed the City." The bill passed on a 40 to zero vote in the Senate and on a 126 to zero vote in the House of Delegates, and was enacted in Chapter 603 of the Acts of 1992.
The stated purpose of the law in the enacted statute states:
"FOR the purpose of authorizing certain abandoned property in Baltimore City to be sold for a sum less than a certain amount otherwise due for tax sales; specifying that certain persons responsible for certain taxes prior to the tax sale of certain properties remain liable for certain unpaid taxes and other amounts; requiring certain persons to pay certain unpaid taxes in order to redeem certain property; requiring complaints in certain proceedings to foreclose redemption rights to make a certain request; limiting the effect of certain judgments; requiring certain orders in certain proceedings to foreclose redemption rights to include a certain judgment; and generally relating to tax sales of abandoned property in Baltimore City."
Chapter 603 of the Acts of 1992 (some emphasis added). The new statute also amended §§ 14-828, 14-835, and 14-844 to the extent that they relate to properties sold under § 14-817 for an amount less than the taxes owed.
In 1998, the Legislature rewrote § 14-817, leaving subsection (c) unaltered. Chapter 326 of the Acts of 1998. The new sections spelled out the conduct of the tax sale under subsection (a) and the purchase price under subsection (b). Then, in the Acts of 2000, the Legislature enacted Chapter 408 in which it added subsection (c)(7) stating that "[t]he Mayor and City Council may institute a separate action to collect the balance at any time within 7 years after the tax sale if the plaintiff is a private purchaser [as opposed to a governmental or charitable entity]." (emphasis added). This section gave the City authority to pursue a separate action against the original owner (as opposed to a judgment in the redemption action), showing once again that the Legislature intended to give the City the ability to solve the problem.[16]
*1091 If appellant's contention is that abandoned and vacant properties cannot be sold unless cited as such were to prevail, such properties, absent such citation, could not be sold at all irrespective of the existence of delinquent taxes. Abandoned or vacant properties would be afforded more, not less, protection than unabandoned, occupied properties. That certainly was not the intention of the Legislature.
The only reasonable interpretation, that made by the trial court, is that the citation provisions are linked only to the ability of the City to seek judgments for deficiencies as against the delinquent taxpayers. Otherwise, so long as taxes are overdue, and not paid prior to the judgment of foreclosure, such properties may be sold, albeit that the City may not seek deficiency judgments absent the citations.
It is clear, therefore, that the Legislature did not intend to restrict the City's ability to dispose of these types of properties at tax sales. On the contrary, the statute was specifically enacted to allow such sales. It is in this context that we now turn to the question of the Circuit Court's jurisdiction to issue a judgment foreclosing appellant's right of redemption.
B. Jurisdiction
We recently addressed the jurisdiction of the Circuit Court in foreclosure proceedings in Royal Plaza Community Ass'n, Inc. v. Bonds, 389 Md. 187, 884 A.2d 130 (2005). As discussed in Royal Plaza: "`[T]he legislature has declared that the public interest in marketable titles to property purchased at tax sales outweighs considerations of individual hardship in every case, except upon a showing of lack of jurisdiction or fraud in the conduct of the foreclosure.'" Id. at 192, 884 A.2d at 133 (quoting Thomas v. Kolker, 195 Md. 470, 475, 73 A.2d 886, 888 (1950)). This legislative intent is reflected in §§ 14-808 through 14-854 of the Tax-Property Article, which govern tax sales, and more specifically § 14-832 which states that: "The provisions of §§ 14-832.1 through 14-854 of this subtitle shall be liberally construed as remedial legislation to encourage the foreclosure of rights of redemption by suits in the circuit courts and for the decreeing of marketable titles to property sold by the collector."
The Tax-Property Article specifically confers jurisdiction upon the Circuit Court over foreclosure proceedings in § 14-834, which provides:
"The circuit court, on the filing of a complaint to foreclose the right of redemption, has jurisdiction to give complete relief under this subtitle, in accordance with the general jurisdiction and practice of the court, and with all laws and rules of court that relate to the circuit courts for the county in which the property is located, except as otherwise provided in this subtitle, to bar all rights of redemption and to foreclose all alienations and descents of the property occurring before the judgment of the court as provided in this subtitle and all liens and encumbrances on the property, except property taxes that arise after the date of sale, and to order an absolute and indefeasible estate in fee simple or *1092 leasehold to be vested in the holder of the certificate of sale."
Under this Article, once the Circuit Court enters a judgment foreclosing the right of redemption in a tax sale foreclosure proceeding, that judgment can only be reopenedmore than thirty days after it is enteredin accordance with § 14-845, which states:
"(a) Reopening judgments generally. A court in the State may not reopen a judgment rendered in a tax sale foreclosure proceeding except on the ground of lack of jurisdiction or fraud in the conduct of the proceedings to foreclose; however, no reopening of any judgment on the ground of constructive fraud in the conduct of the proceedings to foreclose shall be entertained by any court unless an application to reopen a judgment rendered is filed within 1 year from the date of the judgment." (Emphasis added.)
Appellant claims that failure to strictly adhere to the statutory provisions voids the sale and, consequently, the Circuit Court lacked any jurisdiction to foreclose the owner's right of redemption.
In support of this assertion, appellant takes us back to the case of Polk v. Rose, 25 Md. 153, 159 (1866), where the Court stated:
"To sustain the power of the collector which is a specially delegated one and must be strictly pursued[, a] series of the acts preliminary in their character, are required by law to precede the execution of the power. Each and every step, from the assessment of the property for taxation, to the consummation of the title by delivery of the deed to the purchaser, is a separate and independent fact. All of these facts from the beginning to the end of the proceeding must exist, and if any material link in the chain of title is wanting, the whole is defective for want of sufficient authority to support it. The party claiming under the power is chargeable with notice of every irregularity in the proceedings of the officers, and the onus is upon him to show the faithful execution of the power." (Citations omitted.)
In that case, the Collector did not attempt to first collect the taxes from the owner's personal property as required at the time, but sold the real property at a tax sale instead. In doing so, the Court found that the Collector had not met the specific requirements then existing.[17] One of those requirements was the filing of a statement with the court attesting to the fact that the taxpayer did not have any personal property that could cover the amount owed. The Collector failed to file the statement and the owner, in fact, "had personal property amply sufficient to pay the taxes alleged to be due." Id. at 160. Furthermore, the Collector sold the two properties on the lot when selling one alone would be sufficient to cover the amount owed.[18] The tax sale purchaser obtained the property under a decree by the Circuit Court for Baltimore City. Subsequently, the delinquent owner sold the property to another, who in turn filed a complaint in the Circuit Court for Baltimore City seeking that the court clear the title to the property. The Circuit Court held a hearing and declared the tax sale deed null and void. Id. at 159. The Court of Appeals did not address whether the Circuit Court had jurisdiction to foreclose an owner's right of redemption, but it affirmed the Circuit Court's finding that the sale was void.
*1093 Appellant argues that the City's failure to cite the properties as abandoned or vacant voids the sale in this case and therefore removes jurisdiction from the Circuit Court to issue a judgment foreclosing the right of redemption. In appellant's case, however, the City's actions do not amount to the type of conduct presented in Polk, where the statute required that as a condition precedent to a tax sale of real property, personal property be sold first to satisfy the lien. Sufficient personal property existed in that case. Polk, 25 Md. at 160; Md.Code (1860), Article 81, § 50. Accordingly, there was never any jurisdiction to sell the real property in Polk because the condition precedent had not been met. In the present case, once the taxes on the real property were not paid, jurisdiction existed for the sale of the real property. How the sale was conducted is a different issue; in this case not a jurisdictional issue.
In a case very similar to the one at bar, Thomas v. Kolker, 195 Md. 470, 73 A.2d 886 (1950), the Court denied the delinquent owner's request to reopen foreclosure proceedings because of her mistaken belief that the properties sold at the tax sale were unimproved. On April 8, 1943, the City of Baltimore sold three of Thomas's lots at a tax sale because she had failed to pay taxes for the previous four years. After the sale, Thomas promptly redeemed one of the lots under the mistaken belief that the building, which she wanted to keep, was located on that lot alone, when in fact the building expanded over two of the lots. Kolker subsequently filed a claim to foreclose Thomas's right of redemption as to the other lots. Thomas did not answer the complaint, although she had been properly served with process. As a result, the Circuit Court entered judgment foreclosing her right of redemption to the two remaining lots. Almost three years later, Thomas filed a petition to reopen the foreclosure proceedings based upon lack of jurisdiction and fraud. The Court held that the Circuit Court had jurisdiction over the matter. In making its determination the Court said:
"The appellant acted, or failed to act, under a mistake of fact as to the location of the garages she erected, a mistake evidently shared by the Collector at the time the property was advertised and sold, although the true situation seems to have been known to him when the certificate was issued. Even if the mistake was mutual it manifestly could not affect the jurisdiction."
Id. at 475-76, 73 A.2d at 888. The Court then affirmed the Circuit Court's denial of Thomas's request for relief stating:
"The initial mistake was clearly hers, in building the garage where she did and, as the chancellor states: `she stood by at the tax sale, she stood by when she redeemed one lot, she stood by when the bill of complaint was filed and served on her, and waited all this period of time before doing anything.' We think the case is not within the exceptions in the statute."
Id. at 476, 73 A.2d at 889. In the case sub judice, appellant stood by at the tax sale, it had the opportunity to contest the sale and did so successfully on two of the properties sold; in so far as the record before us indicates, appellant did not contest the validity of any of the other sales by a motion to dismiss as to those properties and/or did not then raise the issues as to these parcels it now raises. Rather, it waited until after the judgments foreclosing the equities of redemption had been entered to complain on these grounds. Such failure to timely raise the issues below normally would bar appellant from bringing them at this stage of the proceedings.
*1094 Some years later, the Court again visited the question of the jurisdiction of the Circuit Court in foreclosure proceedings involving defective descriptions of the property sold at a tax sale in Thomas v. Hardisty, 217 Md. 523, 143 A.2d 618 (1958). The Court determined that the Circuit Court lacked jurisdiction to foreclose the right of redemption because the property was improperly described throughout the proceedings. Importantly, the Court also pointed out that "[t]here was no personal service on the appellant or actual notice to him of the proceedings, and hence he had no opportunity to correct the clearly wrong description." Id. at 534-35, 143 A.2d at 624. In the case sub judice, the appellant had every opportunity to raise the issues it now raises in this appeal at any time before the judgment was entered, which it failed to do. And, inaction by the owner has been grounds for a denial of a motion to reopen foreclosure proceedings. In Hauver v. Dorsey, 228 Md. 499, 180 A.2d 475 (1962), the Court determined that a purchaser's failure to file an affidavit as required by the Rules did not deprive the Circuit Court of jurisdiction to issue a judgment foreclosing the right of redemption. Hauver had received the property by will and failed to pay taxes on it. The property was sold at a tax sale seven years after the death of the original owner who was still the title holder according to the land records. All notices sent to the address of record were returned and the Circuit Court entered a decree foreclosing the right of redemption on the property. A year later, Hauver filed a petition to set aside the judgment, which was denied. In affirming that denial, the Court stated:
"We have frequently pointed out that the tax sales law was designed to improve the marketability of tax titles. Petitioner was less than diligent in failing to ascertain that taxes were in default, that the sale had been made, and a proceeding to foreclose instituted. We see no reason to hold that a procedural requirement, designed to prevent imposition upon the court and require a reasonable effort in good faith to locate and warn the owner, creates a jurisdictional defect in the fundamental sense of preventing the court from dealing with the subject matter and the parties before it."
Id. at 505, 180 A.2d at 478 (citations omitted). In the case sub judice, we see no reason to hold that the citation of the properties, whichas explained suprais only a requirement to be able to collect from the delinquent taxpayer the difference between the sale price and the amount of the lien, creates a jurisdictional defect preventing the Circuit Court from foreclosing the owner's right of redemption on the property. As an active participant in the proceedings, appellant could have at anytime before the judgment was enteredpaid the taxes and redeemed the property.
C. Constructive Fraud
In the alternative, appellant argues that the City's failure to cite the properties amounted toat the very leastconstructive fraud.[19] Under T.P. § 14-845 a judgment foreclosing the right of redemption can be reopened upon a showing of constructive fraud within a *1095 year of the judgment.[20] In appellant's view the City's failure to cite the properties as vacant before including them in the tax sale was a breach of the City's legal duty imposed by § 14-817(c), amounting to constructive fraud. As we have stated, however, if taxes are unpaid the City has jurisdiction to hold a general tax sale including those properties. The issue as to abandoned or vacant properties relates to the ability of the City to go after the delinquent owners for the deficiency. Fundamental jurisdiction exists.
The citation of the properties, as stated previously, is only a requirement imposed upon the City in order to hold the previous owner liable for the difference between the sale price and the liens. This requirement does not create a legal duty to cite the properties before the City has the power to assume jurisdiction to sell them at a tax sale. Even if there was such a duty, appellant has failed to show that the City's actions constituted fraud, constructive or otherwise. Appellant does not challenge that taxes were unpaid and due.
Although fraud is a well defined legal concept, for the purpose of this case, it is appropriate to review the ordinary meaning of the term "fraud." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 463-64 (10th ed.1998) defines fraud as:
"1 a: DECEIT, TRICKERY; specif: intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right b: an act of deceiving or misrepresenting: TRICK 2a: a person who is not what he or she pretends to be: IMPOSTOR; also: one who defrauds: CHEAT b: one that is not what it seems or is represented to be." (Emphasis added.)
In the legal sense, BLACKS LAW DICTIONARY 685 (8th ed.2004) provides the following definition:
"1. A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. Fraud is usu. a tort, but in some cases (esp. when the conduct is willful) it may be a crime.... 2. A misrepresentation made recklessly without belief in its truth to induce another person to act.... 3. A tort arising from a knowing misrepresentation, concealment of material fact, or reckless misrepresentation made to induce another to act to his or her detriment." (Emphasis added.)
That dictionary also defines constructive fraud as an "[u]nintentional deception or misrepresentation that causes injury to another." Id. at 686 (emphasis added). What these definitions have in common is the inherent requirement that the person or entity defrauded must have been in some way deceived or misled by the actions of the person or entity alleged to have committed the fraud.
We have also defined constructive fraud as a "`breach of a legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others, to violate public or private confidence, or to injure public interests.'" Md. Envtl. Trust v. Gaynor, 370 Md. 89, 97, 803 A.2d 512, 516-17 (2002) (quoting Ellerin v. Fairfax Sav., 337 Md. 216, 236 n. 11, 652 A.2d 1117, 1126 n. 11 (1995)). Constructive fraud, as it might be relied on by an owner of property being sold for taxes, would normally relate to notice and things of that nature that would hinder the delinquent taxpayer from exercising his right to *1096 redeem, i.e., pay the delinquent taxes. Nothing that occurred in this case in any way hindered appellant's right to redeem. Nothing hindered its ability to pay the taxes and charges. It chose not to pay the taxes.
In the context of tax sales, a Maryland case discussing constructive fraud as grounds to void a tax sale is Jannenga v. Johnson, 243 Md. 1, 220 A.2d 89 (1966). The facts in Jannenga were very similar to those in Hauver, supra. The property, purchased at a tax sale, was owned prior to the tax sale by a person who resided in a different state. The tax sale and foreclosure proceedings were conducted in her absence. An affidavit stating that good faith efforts to locate and serve the owner was never filed. The lower court granted the owner's petition to set aside the judgment because taxes had been paid before the tax sale.[21] The Court determined that the lower court had jurisdiction to foreclose the right of redemption in accordance with the holding of the Hauver case. It affirmed the Circuit Court's judgment on different grounds, however, because the failure to file the affidavit amounted to constructive fraud and stated:
"A failure to provide such notice or to make a good faith effort to do so may not amount to actual fraud in that one may not have been compelled by malicious motives to deceive the defendant, but it does, in any event, amount to constructive fraud since Jannenga, regardless of moral guilt or intent to deceive, failed to perform a legal duty. The Court in Hauver did not pass upon the issue of constructive fraud present in the case at bar."
Jannenga, 243 Md. at 5, 220 A.2d at 91. Failure to comply with the notice requirements has since that time been considered constructive fraud. See Arnold v. Carafides, 282 Md. 375, 384 A.2d 729 (1978); Smith v. Watner, 256 Md. 400, 260 A.2d 341 (1970); Brooks v. McMillan, 42 Md. App. 270, 400 A.2d 436 (1979); Karkenny v. Mongelli, 35 Md.App. 187, 370 A.2d 137 (1977); but see Walter E. Heller & Co. v. Kocher, 262 Md. 471, 278 A.2d 301 (1971) (holding that so long as there is sufficient evidence to show that the owner received actual notice of the foreclosure proceedings, deviations from the procedures did not amount to constructive fraud); Scheve v. McPherson, 44 Md.App. 398, 408 A.2d 1071 (1979).
In Carafides, the Court set aside a judgment foreclosing the right of redemption because the owner was never notified of the proceedings. 282 Md. at 384, 384 A.2d at 733. The Court determined that the purchaser obtained the judgment of foreclosure by constructive fraud because, although its attorney filed an affidavit attesting to his reasonable efforts to locate the owner, the attorney failed to conduct a proper review of the public records. In essence, the attorney breached his legal duty to conduct a proper review and, as a result, the Court was deceived into believing that the owner could not be located.
Failure to comply with every part of the statute does not, in and of itself, however, as we have indicated, constitute constructive fraud, especially when it does not relate to notice or to the owner's ability to redeem. In Kocher, the purchaser-like in Jannenga, suprafailed to file the required affidavit stating that there had been diligent efforts to locate the lien holder. *1097 Kocher, 262 Md. at 481-82, 278 A.2d at 306. The Court, rejecting the claim of constructive fraud, stated:
"If [the lien holder] had been able to prove that it had not received effective actual knowledge of the equity of redemption foreclosure proceeding because of the failure of the plaintiff to comply with Rules 106 and 107, notwithstanding the telephone calls and letters already mentioned, another issue might have been presented in the present case. This it did not do, however, and we express no opinion in regard to that possible issue."
Id. In the case sub judice, appellant received notice and was present throughout the foreclosure of the rights of redemption proceedings. Neither it nor the court were deceived by the City's actions, which, as stated previously, comply with the essential requirements of the general tax sale statute. The inclusion of the properties in the tax sale, therefore, did not constitute fraud, constructive or otherwise.
D. Due Process
The Fourteenth Amendment of the United States Constitution provides "nor shall any State deprive any person of life, liberty, or property, without due process of law;" and Article 24 of the Maryland Declaration of Rights provides "[t]hat no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land." These provisions are generally construed in pari materia. See Bowie Inn, Inc. v. City of Bowie, 274 Md. 230, 235 n. 1, 335 A.2d 679, 683 n. 1 (1975).
The United States Supreme Court has stated that "there can be no doubt that at a minimum [the Due Process Clause] require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94 L.Ed. 865 (1950). Furthermore, "`[t]he fundamental requisite of due process of law is the opportunity to be heard.'" Id. at 314, 70 S.Ct. at 657 (quoting Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914)). In the context of tax sales in Maryland, these due process provisions have centered around the issue of notice to the owner of the property. Royal Plaza Community Ass'n, Inc. v. Bonds, 389 Md. 187, 884 A.2d 130 (2005); Scheve v. Shudder, Inc., 328 Md. 363, 614 A.2d 582 (1992); St. George Antiochian Orthodox Christian Church v. Aggarwal, 326 Md. 90, 603 A.2d 484 (1992). Because there is no question as to the notice provided to appellant, the only issue left to discuss in terms of due process is the sufficiency of the procedures under the tax sale statute.
In Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), the Supreme Court delineated the test for evaluating the sufficiency of process. The analysis requires the courts to determine
"First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail."
Id. A land owner's interest in their property is one of the fundamental principles upon which both the United States' and *1098 Maryland's Constitutions were created. Great care must be taken in avoiding the erroneous deprivation of such property interests. The procedures in place for general tax sales, however, are more than sufficient to ensure the protection of this important private interest. The general tax sale statute gives the property owner the ability to participate in the tax sale proceedings. Furthermore, the tax sale purchaser must file an action seeking to foreclose the equity of redemption, a process in which the owner of the property has the opportunity to participate fully and, in this case, did participate fully. It just declined to pay the taxes. The owner is given every opportunity to redeem its property prior to the judgment foreclosing its right of redemption. In the present case, this right to redeem by paying the overdue taxes was available to the delinquent owner at every stage of the proceedings prior to judgment. Even after such judgment is entered, in the event that an erroneous determination has been reached, the courts have the ability to review and set it aside in cases of lack of jurisdiction or fraud. Finally, this procedure is supported by the entirely legitimate purpose of providing marketable title to property purchased at tax sales. Kolker, 195 Md. at 475, 73 A.2d at 888. Consequently, the tax sale statute and procedures stand on solid constitutional ground.
In light of the constitutionality of the process, it is clear that appellant's due process argument is entirely without merit. It was on notice that taxes were overdue; it was on notice that the properties were to be disposed of at the tax sale; and, it had ample opportunity to contest any of the sales or pay the taxes due. In fact, in prejudgment proceedings it challenged the sales successfully as to two of the properties originally sold.[22] Furthermore, appellant was represented by counsel throughout the entire proceeding. Appellant's failure to timely contest the judgments, or even raise the issues now brought to our attention, prevents it from attacking those judgments on any ground other than fraud or lack of jurisdiction, both of whichas the Circuit Court correctly concludedit has failed to prove in this case.
IV. Conclusion
Section 14-845 of the Tax-Property Article, as relevant to the case at bar, provides that the Circuit Court may reopen a foreclosure judgment if the court lacked jurisdiction to issue the judgment or if there was fraud in the conduct of the foreclosure proceedings. In the case of constructive fraud, the motion to vacate the judgment must be filed within one year from the date the judgement is entered. The City was not required to cite the properties as abandoned or vacant in order to proceed with the tax sale. The delinquency of the taxes authorized the tax sale. Its failure to so cite the properties, only affected its ability to collect the difference between the sale prices and the liens on the properties from the delinquent taxpayer/property owner. Moreover, the condition precedentthe payment of the taxes and chargeswas never complied with by the delinquent taxpayer.
Finally, appellant's due process rights were not violated. It was given ample opportunity to be heard and was represented by counsel at every stage of the proceedings. Appellant, as to the properties at issue, failed to raise any of the present questions until after the foreclosure judgments were entered. For the *1099 reasons stated herein, we hold that the Circuit Court did not err or abuse its discretion. Therefore, we affirm Judge Themelis's judgment denying appellant's motion to vacate the foreclosure judgments.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.
NOTES
[1] Although Baker and Division III, LLC is the named party, this case was briefed and argued by the City Solicitor on behalf of the Mayor and City Council of Baltimore City.
[2] Case 5462 concerned the following properties: 523, 529-535 Senker Place; 2301, 2303, 2305, 2307, 2309, 2311, and 2313 Pennsylvania Avenue. Case 5463 concerned the following properties: 2300 Brunt Street; 571, 575, 588, and 592 Baker Street.
Two of these properties, 523 Senker Place and 2300 Brunt Street, are not part of this appeal as the complaints to foreclose the rights of redemption on them were dismissed by agreement of the parties on October 21, 2003, based upon appellant's motions alleging that those specific tax sales, with respect to those two properties were void because of a lack of citation of the properties as abandoned or vacant and that the sales prices were less than the taxes due.
There was no assertion of these specific issues as to the properties at issue here prior to the judgments foreclosing the rights of redemption. The issues raised in the present appeal, were actually only presented in the trial court as a part of the prejudgment motions as to 523 Senker Place and 2300 Brunt Street. They were never raised with respect to the properties at issue here. It was only in the later post-judgment motion to vacate that appellant argued as to these properties that the sales were void because the City failed to cite the properties and that they were sold for a sum less than the taxes owed.
[3] Under Maryland Code (1985, 2001 Repl. Vol., 2004 Supp.), § 14-845(a) of the Tax-Property Article, appellant's claim of constructive fraud regarding this particular property is barred because the motion to reopen the foreclosure judgment was filed more than one year after the judgment was entered.
[4] Rule 2-535 provides:
"(a) Generally. On motion of any party filed within 30 days after entry of judgment, the court may exercise revisory power and control over the judgment and, if the action was tried before the court, may take any action that it could have taken under Rule 2-534.
"(b) Fraud, mistake, irregularity. On motion of any party filed at any time, the court may exercise revisory power and control over the judgment in case of fraud, mistake, or irregularity."
This rule embodies Maryland Code (1973, 2002 Repl.Vol.), § 6-408 of the Courts and Judicial Proceedings Article, which states:
"For a period of 30 days after the entry of a judgment, or thereafter pursuant to motion filed within that period, the court has revisory power and control over the judgment. After the expiration of that period the court has revisory power and control over the judgment only in case of fraud, mistake, irregularity, or failure of an employee of the court or of the clerk's office to perform a duty required by statute or rule."
[5] In making that finding, the trial court stated at the hearing:
"I'm denying your Motion to Strike or Set Aside for Fraud, Mistake, or Irregularity, under 2-535(b). Finding that, that language, the irregularity that's discussed relates to the City's right to recover the deficiency and not the validity of the conveyance."
. . .
"And even if it was an irregularity in the property being advertised, and that all other respects, the procedures required in an ordinary tax sale were met, because I think you need findings of fact, in there too, that the misstatement of the fact that it was a special sale, in that it was not property that was cited under that section relates to the City's right to recover the deficiency."
. . .
"I found that ... [the] language in that section, deals with the City's right to recover a deficiency, if sold for less than the amount of taxes owed. You see what would happen is to rule otherwise would encourage owners of real property to not pay taxes until that amount exceeded the fair market value of their property ..."
[6] If a delinquent taxpayer can find a way to overturn a tax sale without paying the delinquent taxes, the delinquent taxpayer will never redeem. It is for this reason that the general rule is that in order to challenge a tax sale, the payment of taxes in arrears is a condition precedent. It was not met in the case at bar (at one point prior to the judgments, appellant appeared to question the computation of taxes but not that some amount was due. That issue was abandoned and not raised in the case before us.).
The case law that seems to support the right of a taxpayer to proffer a sum (instead of paying it) only relates (if it applies at all) to claims that the purchase price at the tax sale was inadequate. See Preske v. Carroll, infra, 178 Md. 543, 550-51, 16 A.2d 291, 295 (1940). It does not change the requirement that in order to challenge the holding of a tax sale, the taxes must be paid as a condition precedent.
[7] At one point some title insurance companies required a tax sale purchaser to establish the validity of the title to tax sale property, by filing an additional proceeding (quia timet to remove a cloud on title), naming the prior title holder as a defendant. Under our current jurisprudence this should no longer be necessary. In Lippert v. Jung, 366 Md. 221, 783 A.2d 206 (2001), we recently stated:
"It must be remembered that although tax sales are concerned with the payment of taxes on land, the issue in most tax sale cases, where the equity of redemption has been properly foreclosed, is almost always a matter of title. It remains our view, and it is the holding of our cases, that a valid tax sale and proper foreclosure of the equities of redemption terminates the prior title, and creates a new title granted by the sovereign.
. . .
"We reiterated what we had said in earlier cases in Winter v. O'Neill, 155 Md. 624, 631, 142 A. 263, 266 (1928):
`[Y]et if the tax deed and the proceedings upon which it is based are valid, then from the time of its delivery it clothes the purchaser not merely with the title of the person who had been assessed for the taxes and had neglected to pay them, but with a new and complete title in the land, under an independent grant from the sovereign authority, which bars or extinguishes all prior titles and encumbrances of private persons, and all equities arising out of them. It requires no argument to demonstrate that, when a governmental agency is empowered to levy taxes for the purpose of producing revenue for the support of the government, it is necessary that a method be provided by which the payment thereof may be enforced. When this method is sale at public auction to the highest bidder, it is essential, in order that there may be bidders at such sale, that the purchaser's title be protected, in cases where the statutory essentials of the sale are substantially complied with; otherwise the collection of taxes would be seriously impaired.' ...
See also Thompson v. Henderson, 155 Md. 665, 667, 142 A. 525, 526 (1928).
"We had held twenty-two years before the Winter case, almost a hundred years ago, in Hill v. Williams, 104 Md. 595, 604, 65 A. 413, 414-15 (1906), where it was argued that an easement on property was not extinguished by a tax sale, that:
`[A]nd if the taxes were not paid it was liable to be sold, even though by such a sale the easement would be destroyed; because the purchaser at a tax sale, when the proceedings are regular, is clothed with a new and complete title in the land, under an independent grant from the sovereign authority, which bars or extinguishes all titles and encumbrances of private persons, and all equities arising out of them. These observations dispose of the three objections first mentioned. ...'"
Lippert, 366 Md. at 229-33, 783 A.2d at 210-13 (footnotes omitted).
[8] That statute provides:
"If the payment is not made within the 90-day period, the petition to vacate the order directing the county clerk to issue a tax deed shall be denied with prejudice, and the order directing the county clerk to issue a tax deed shall remain in full force and effect. No final order vacating any order directing the county clerk to issue a tax deed shall be entered pursuant to this subsection (b) until the payment has been made."
[9] It is interesting to note that, although appellant alleged that it was under the impression that all of the complaints to foreclose had been dismissed, it nonetheless still failed to pay any of the taxes owed on the two properties where the complaints were dismissed or on any of the properties in this case. The record does not reflect that any of the taxes have been paid by appellant. This again demonstrates why payment is a requirement when the delinquent taxpayer is seeking relief.
[10] In the transcript, this paragraph is attributed to appellant. It is clear from the context, however, that it was the City that was making these statements.
[11] We have previously recognized that there may be a conflict between C.J. § 6-408 and T.P. § 14-845, which at the time was Maryland Code (1957, 1975 Repl.Vol.), Article 81, § 113. Suburban Dev. Corp. v. Perryman, 281 Md. 168, 169 n. 1, 377 A.2d 1164, 1164 n. 1 (1977) (per curiam) (stating that the conflict between these two statutes "should be considered in light of our ruling in Owen v. Freeman, 279 Md. 241, 367 A.2d 1245 (1977)"). In Freeman, the Court held that Rule 625, which has since been reclassified as Rule 2-535, applies to all final judgments. Freeman, 279 Md. at 245, 367 A.2d at 1248. In the case at bar, there is no conflict as appellant claims that the judgment should be set aside because of fraud.
[12] Appellant has argued that the properties were sold at a "special" tax sale. In our review of the Tax-Property Article sections 14-806 through 14-854, governing tax sales, we have not found any mention of a "special," or for that matter a "regular," tax sale. These two terms most likely stem from the practice by the City of Baltimore, as well as other jurisdictions, of holding a tax sale on one specific date every year. In practice, the City, generally, may not have sold abandoned property on that date although it could have so far as the State statute is concerned. As a result, one may incorrectly assumeas the appellant apparently did in this casethat only abandoned properties may be sold at a different date than the one designated by the City as the "regular" tax sale date. As explained below, so long as the City complies with the statutory requirements to conduct a general tax sale, it can do so at any time.
[13] There have been some changes to this section since the time the tax sale took place in 2001. These changes will be addressed where relevant to the case sub judice.
[14] The words "Baltimore City" were not part of the statute. They were added by the codifiers.
[15] The relevant portions of Chapter 603 of the Acts of 1992 provide:
(C) (1) IN BALTIMORE CITY, PROPERTY CITED AS VACANT AND ABANDONED ON A HOUSING OR BUILDING VIOLATION NOTICE MAY BE SOLD FOR A SUM LESS THAN THE TOTAL AMOUNT OF:
(I) ALL TAXES ON THE PROPERTY THAT ARE CERTIFIED TO THE COLLECTOR UNDER § 14-810 OF THIS SUBTITLE;
(II) INTEREST AND PENALTIES ON THE TAXES; AND
(III) EXPENSES INCURRED IN MAKING THE SALE.
(2) THE PERSON RESPONSIBLE FOR THE TAXES PRIOR TO THE SALE SHALL REMAIN LIABLE TO THE COLLECTOR FOR THE DIFFERENCE BETWEEN THE AMOUNT RECEIVED IN THE TAX SALE UNDER THIS SECTION AND THE TAXES, INTEREST, PENALTIES, AND EXPENSES REMAINING AFTER THE SALE.
(3) THE BALANCE REMAINING AFTER THE TAX SALE SHALL BE INCLUDED IN THE AMOUNT NECESSARY TO REDEEM THE PROPERTY UNDER § 14-828 OF THIS SUBTITLE.
(4) IN A PROCEEDING TO FORECLOSE THE RIGHT OF REDEMPTION UNDER THIS SUBTITLE, THE COMPLAINT SHALL REQUEST A JUDGMENT FOR THE CITY IN THE AMOUNT OF THE BALANCE OTHERWISE DUE UNDER THIS SECTION.
[16] Since the time of the tax sale in the present case, the Legislature has further amended subsection (c) to give even more discretion to the City. In 2003, the Legislature amended subsection (c)(5), which had stated: "In a proceeding to foreclose the right of redemption under this subtitle, the complaint shall request a judgment for the city in the amount of the balance." (Emphasis added). The amendment replaced the word "shall" for "may," giving the City discretion on whether to pursue an action to obtain the tax balance from the original owner.
In support of this amendment the City continued to emphasize the extent of the problem. On March 6, 2003, Michael Bainum, the Director of Project 5000, testified before the House Ways and Means Committee and stated:
"... Project 5000[is] Mayor O'Malley's initiative to acquire and clear title to 5000 of the nearly 25,000 vacant and abandoned properties in Baltimore City. As the City's primary acquisition method for this initiative, tax sale foreclosure is a critical tool for reclaiming the thousands of abandoned properties that undermine the City's health and revitalization efforts. By year's end, we aim to process 3000 tax sale foreclosure cases-a volume of cases that speaks to both the enormity of the problem and the Mayor's commitment to its resolution. In planning for this Project, we have identified some legal barriers that are easily correctible."
[17] Tax sales in 1866 were governed by Maryland Code (1860), Article 81, §§ 47-64.
[18] At that time the Collector was allowed to divide the lot and sell only enough property to cover the amount owed. Art. 81, § 60.
[19] Appellant's reply brief contends that the City's actions were more akin to actual fraud becausein appellant's viewthe City deliberately included the properties in the tax sale knowing that the properties had not been cited as being abandoned or vacant. Because, as discussed supra, the sale of the properties was allowed under the general tax sale procedures, the City's sale of the properties did not constitute actual fraud.
[20] Appellant concedes that in the case of one property, 571 Baker Street, where the judgment of foreclosure was entered on March 14, 2003, its claim of constructive fraud is barred by the statute.
[21] In that case there was evidence that taxes had actually been paid, but the town clerk and treasurer had failed to notify the county clerk who conducted the tax sale. The record in the case at bar does not reflect that the owner has paid any of the taxes due which, for the purpose of this appeal, amount to well over $150,000.
[22] It was successful only because the dismissals were by agreement of the parties. The holdings rendered with this opinion would appear to have applied to those properties had those complaints to foreclose not been voluntarily dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263944/ | 33 Cal.App.4th 706 (1995)
39 Cal. Rptr.2d 479
THE PEOPLE, Plaintiff and Respondent,
v.
PHILLIP VEGA, Defendant and Appellant.
Docket No. F020956.
Court of Appeals of California, Fifth District.
March 29, 1995.
*707 COUNSEL
Richard G. Rumery, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Edgar A. Kerry and Robert P. Whitlock, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
THAXTER, J.
Phillip Vega appeals from the judgment entered on a jury verdict convicting him of inflicting corporal injury in violation of Penal Code section 273.5, subdivision (a).[1] The trial court imposed the three-year middle prison term and ordered him to pay a $200 restitution fine pursuant to former Government Code section 13967. Appellant raises four issues on appeal: (1) is there substantial evidence the victim was the mother of his child within the meaning of section 273.5, subdivision (a); (2) did the prosecutor commit prejudicial misconduct in closing argument which required a new trial; (3) must the matter be remanded because the court failed to determine whether he had the ability to pay the $200 fine; and (4) is he *708 entitled to four additional days of custody credit? We will direct that the abstract of judgment be corrected to reflect four additional days of custody credit and will affirm the judgment in all other respects.
FACTS
Appellant and the victim, Tina Duran, had a stormy seven-year relationship. They lived together off-and-on. They were not living together on July 23, 1993, but appellant "spent the night." According to Duran, appellant is the father of her three children. When appellant was not living with Duran, the children were supported by Aid to Families with Dependent Children (AFDC). On July 22, 1993, Duran went out, leaving the children with her brother and appellant.
About 1 or 1:30 a.m., sheriff's officers were summoned to the apartment. They found the children in the apartment with appellant, who was intoxicated and unresponsive. When the officers were unable to wake him for 10 to 15 minutes, they took the children and later released them to Duran's mother. About 3 a.m. that morning, Duran arrived home intoxicated. Appellant met her on the lawn outside, argued with her, and began to beat her about the face and head. Neighbors pulled appellant off Duran and called 911.
As a result of the beating, Duran had a severely swollen face, a bloody lip, and her left eye was almost swollen shut. She was treated at the hospital, placed in a neck brace, and released. Afterwards, her left ear drained fluid and she experienced a temporary hearing loss.
Appellant offered no evidence.
DISCUSSION
1. There is Substantial Evidence the Victim Was the Mother of Appellant's Child Within the Meaning of Section 273.5, subdivision (a)
When viewing a challenge to the sufficiency of the evidence to sustain a conviction on appeal, "[t]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal. Rptr. 431, 606 P.2d 738]; People v. Jones (1990) 51 Cal.3d 294, 314 [270 Cal. Rptr. 611, 792 P.2d 643].) If the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. (Ibid.)
*709 Section 273.5
Appellant was convicted of violating section 273.5, subdivision (a). The section provides that any person who willfully inflicts corporal injury resulting in a traumatic condition upon a spouse, a person with whom he or she is cohabiting, or "the mother or father of his or her child," is guilty of a felony. Subdivision (d) of that section provides, "For the purpose of this section, a person shall be considered the father or mother of another person's child if the alleged male parent is presumed the natural father under Sections 7611 and 7612 of the Family Code."
(1) Appellant contends there is no substantial evidence to support his conviction because Duran's testimony that appellant "is the father of [her] children" is insufficient under subdivision (d) of section 273.5 to establish that element of the offense. We disagree. Section 273.5 does not require that parentage be established by resort to the Family Code presumptions. Therefore any substantial evidence that establishes the victim is the mother or father of the defendant's child is sufficient to sustain the conviction.
Family Code Presumptions
Family Code section 7611 provides that a man is presumed to be the natural father of a child if he meets the conditions provided in its subdivisions or in chapter 1 (commencing with Fam. Code, § 7540) of part 2.
Chapter 1 of part 2 contains Family Code sections 7540 and 7541. Family Code section 7540 sets forth the conclusive presumption of paternity: "Except as provided in Section 7541 [expert conclusions, based on blood tests, showing otherwise], the child of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage."
Family Code section 7611's subdivisions set forth five situations giving rise to a rebuttable presumption of paternity: (a) birth during marriage or within three hundred days after its termination; (b) birth during an attempted marriage which is or could be declared invalid; (c) subsequent marriage to the child's natural mother and consent to be named father on the child's birth certificate or obligated to support the child under a written voluntary promise or by court order; (d) reception of the child into his home and holding out the child as his natural child; (e) acknowledgment of paternity.
Family Code section 7612 makes section 7611's presumptions rebuttable by clear and convincing evidence.
Statutory Interpretation
The major consideration in interpreting a criminal statute is legislative purpose. We read the statute in light of the evils which prompted its *710 enactment and the method of control which the Legislature chose. (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Introduction to Crimes, § 22, p. 28.) Thus, in determining whether the prosecution must establish paternity pursuant to the Family Code presumptions, it is appropriate to consider the purpose of section 273.5. (Cf. People v. Rooney (1993) 17 Cal. App.4th 1207, 1211 [21 Cal. Rptr.2d 900].)
Section 273.5 was enacted to expand its predecessor section, a "wife-beating" statute (former § 273d), to protect the large numbers of couples who live in "intimate" and "significant relationships," but without marriage. (People v. Wilkins (1993) 14 Cal. App.4th 761, 771 [17 Cal. Rptr.2d 743]; People v. Holifield (1988) 205 Cal. App.3d 993, 999 [252 Cal. Rptr. 729].) The purpose of section 273.5 is to protect persons of the opposite sex in a special relationship for which society demands, and the victim may reasonably expect, stability and safety, and in which the victim, for these reasons among others, may be especially vulnerable. (People v. Rodriguez (1992) 5 Cal. App.4th 1398, 1402 [7 Cal. Rptr.2d 495].) By including "the mother or father of his or her child" within the scope of the statute, the Legislature determined that such persons are involved in a special relationship deserving of the statute's protection.
The Family Code provisions referred to in section 273.5, subdivision (d), have a different objective. Family Code sections 7611 and 7612 are part of the Uniform Parentage Act (Act). The Act was enacted to eliminate the legal distinction between legitimate and illegitimate children (Johnson v. Calvert (1993) 5 Cal.4th 84, 88 [19 Cal. Rptr.2d 494, 851 P.2d 776]), and to provide a comprehensive scheme for the judicial determination of paternity. (Michael M. v. Giovanna F. (1992) 5 Cal. App.4th 1272, 1278 [7 Cal. Rptr.2d 460].) In defining the rights of unmarried fathers, the Act distinguishes between a presumed father, as determined by the statutory presumptions, and one who is merely a biological father. (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 790 [218 Cal. Rptr. 39, 705 P.2d 362]; In re Baby Girl M. (1984) 37 Cal.3d 65, 71-72, fns. 4, 5 [207 Cal. Rptr. 309, 688 P.2d 918].) The unmarried father is treated differently under the Act in custody, support and adoption proceedings depending on his defined status. (See, e.g., Adoption of Kelsey S. (1992) 1 Cal.4th 816, 825 [4 Cal. Rptr.2d 615, 823 P.2d 1216]; In re Shereece B. (1991) 231 Cal. App.3d 613, 622 [282 Cal. Rptr. 430]; In re Tricia M. (1977) 74 Cal. App.3d 125, 132-133 [141 Cal. Rptr. 554].) The presumed father, one who has entered into some familial relationship with the mother and child, is accorded more rights and privileges than the purely biological father. (In re Sabrina H. (1990) 217 Cal. App.3d 702, 708 [266 Cal. Rptr. 274].)
The domestic violence deterrent purpose behind section 273.5, by contrast, does not require such distinctions to come into play. Under the *711 ordinary meaning of the language used, section 273.5, subdivision (a) applies to a biological father who batters the mother of his child. Subdivision (d) expands the reach of the statute to a presumed father, that is, a man who has entered into a family relationship with the mother and child, regardless of whether he is the biological father. No purpose is served under section 273.5 by requiring the prosecution to establish in every case that the defendant is the "presumed ... natural father under Sections 7611 and 7612 of the Family Code." The Family Code sections create presumptions to support proof that the man is the natural father of a child. But parentage can be established without resort to any presumption. (In re Tricia M., supra, 74 Cal. App.3d at p. 132.)
The prosecution did not need to rely on the statutory presumptions to establish the elements of the offense in this case. Duran testified appellant was the father of her three children and she received AFDC when appellant was absent from the home. Appellant offered no evidence to contradict her assertion. The testimony of one witness, if believed, is sufficient to prove any fact. (Evid. Code, § 411; People v. Hunter (1989) 49 Cal.3d 957, 977 [264 Cal. Rptr. 367, 782 P.2d 608].) Thus, Duran's testimony constituted substantial evidence that appellant was the father of her children within the meaning of section 273.5.
2.-4.[*]
.... .... .... .... .... .... .... .
DISPOSITION
The trial court is directed to correct the abstract of judgment to reflect an additional 4 days of presentence custody credit, for a total of 253 rather than 249 days, and to forward the amended abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
Stone (W.A.), Acting P.J., and Vartabedian, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts 2, 3, and 4 of Discussion.
[1] Further statutory references are to the Penal Code unless otherwise indicated.
[*] See footnote, ante, page 706. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332538/ | 521 S.E.2d 892 (1999)
239 Ga. App. 740
COBB COUNTY BOARD OF TAX ASSESSORS
v.
MARIETTA EDUCATIONAL GARDEN CENTER, INC.
No. A99A1462.
Court of Appeals of Georgia.
August 30, 1999.
Certiorari Denied January 28, 2000.
*893 Haynie & Litchfield, Douglas R. Haynie, Emilie K. Petrovich, Marietta, for appellant.
Moore, Ingram, Johnson & Steele, John H. Moore, J. Kevin Moore, Marietta, for appellee.
McMURRAY, Presiding Judge.
The Cobb County Board of Tax Assessors and the Board of Equalization (the "Board") denied applications for ad valorem tax exemption as a purely public charity under OCGA § 48-5-41(a)(4) filed by the Marietta Educational Garden Center, Inc. (the "Garden Center"). The Garden Center appealed to the superior court for a de novo determination pursuant to OCGA § 48-5-311(g)(3). On cross-motions for summary judgment, the following undisputed facts were adduced:
The Garden Center is the owner of certain real property located at 505 Kennesaw Avenue N.W., Marietta, Georgia. After receiving the property as a gift in 1967, the Garden *894 Center restored it, and the property thereafter was placed on the National Register of Historic Places. For the first time in nearly 30 years, the Garden Center applied for exemption from ad valorem property taxes in 1996 upon notice of reassessment issued by the Cobb Board of Tax Assessors doubling its taxes.
The Garden Center's Articles of Incorporation and Bylaws provide that its objective is to "receive gifts and grants of money and property of every kind and to administer the same for charitable, educational, civic, and philanthropic uses and to do anything necessary and proper for the accomplishment of these purposes." Programs and projects promoted by the Marietta Garden Center include:
Continuing education[;] Close association with other members to foster ideas and ideals[;] Growing and exhibiting flowers, fruits, and vegetables[;] Environmental studies[;] Beautification of parks, schools, etc.[;] Assisting other civic clubs in their projects[;] Paper drives for revenue and conservation of trees[;] Tour of homes, showing tasteful decorations[;] Planning lovely lawns and gardens[;] Flower Show Schools, Landscape Design Schools and Gardening Study Courses[;] A library of all phases of garden club activities[; and] Establishing woodland trails for the blind.
The Marietta Council of Garden Clubs, Inc. (the "Council") operates and maintains the Garden Center "for the benefit of the member clubs and the community." The Council's bylaws also pertinently provide:
The objects of the Council shall be to coordinate the interests of the Garden Clubs of Marietta and Cobb County; to bring them into close relations for mutual helpfulness by association, conference and correspondence; to promote the love of gardening; to promote the study of horticulture; to protect our native trees, wild flowers and birds; and to encourage civic beautification, conservation and pollution control.
The Council assesses its 34 affiliated garden clubs annual dues of $5 per year per club member. Additionally, except in the month of January, the Council rents the Garden Center for weddings, social events, and other activities. Income derived from rental fees is used directly to offset expenses incurred in operating and maintaining the Garden Center. The Center was rented 51 times in 1995; 56 times in 1996; and 51 times in 1997. For 1995, the Garden Center's rental income was $59,450 or 87.5 percent of its 1995 budget. In 1996, rental income was $48,331 or 87.8 percent of that year's budget. In 1997, rental income as a percentage of the annual budget was 72.4 percent or $60,700.
No private shareholder, person, or entity benefits from any of the fees collected by the Garden Center. When the Garden Center is not rented, it is used as a monthly meeting place for member garden clubs and club activities, rent free. While the public may not use the Garden Center on a no-fee basis, the visiting public is allowed to tour its buildings and grounds without charge.
The superior court granted the Marietta Garden Center's cross-motion for summary judgment and denied the Board's motion for summary judgment, concluding that: (a) the Board violated the equal protection doctrine of the Georgia and United States Constitutions taxing the property of the Garden Center while exempting like property of another owner; and (b) the Garden Center qualified as an institution of purely public charity whose property was entitled to exemption from taxation under OCGA § 48-5-41(a)(4). Held:
In two related enumerations of error, the Board complains of the grant of the Garden Center's cross-motion for summary judgment and the denial of its own motion, arguing the Garden Center failed to preserve its equal protection claim on appeal and failed to establish its status as a purely public charity entitled to exemption from ad valorem property taxation.
1. The record reflects the Garden Center first raised its equal protection claim in support of its motion for summary judgment in the superior court, arguing the Board's grant of tax exemptions to the Young Men's Christian Association and the Young Women's Christian Association as institutions of purely public charity as to their *895 Cobb County properties entitled the Garden Center to similar tax treatment.
Where the taxpayer appeals an assessment of the Board of Tax Assessors to the Board of Equalization, and from the decision of the latter to the superior court for a de novo hearing [OCGA § 48-5-311(g) ], he is not permitted to raise in the superior court appeal issues which were not raised in the original appeal to the Board of Equalization. Camp v. Boggs, 240 Ga. 127(1), 239 S.E.2d 530 (1977).
Mundy v. Clayton County Tax Assessors, 146 Ga.App. 473(2), 246 S.E.2d 479.
The Garden Center's notice of appeal to the Board[1] failed to raise the matter of the denial of equal protection as entitling it to exemption from taxation as a purely public charity under OCGA § 48-5-41(a). Consequently, the Garden Center failed to preserve its equal protection claim on appeal, whether to the Board or thereafter to the superior court. Since the Garden Center's equal protection claim was not before the superior court for de novo review of the parties' contentions before the Board of Equalization, the trial court lacked authority to rule the Garden Center had been denied equal protection as a basis for granting its cross-motion for summary judgment. Camp v. Boggs, 240 Ga. 127-128(1), 239 S.E.2d 530, supra.
2. The Board contends the Garden Center is not a purely public charity entitled to exemption from ad valorem taxation, arguing the Garden Center fails to meet the controlling three-prong test established by York Rite Bodies &c. of Savannah v. Bd. of Equalization of Chatham County, 261 Ga. 558(2), 408 S.E.2d 699.
"In determining whether property qualifies as an institution of `purely public charity' as set forth in OCGA § 48-5-41(a)(4), three factors must be considered and must coexist. First, the owner must be an institution devoted entirely to charitable pursuits; second, the charitable pursuits of the owner must be for the benefit of the public; and third, the use of the property must be exclusively devoted to those charitable pursuits." York Rite Bodies &c. of Savannah v. Bd. of Equalization of Chatham County, 261 Ga. 558(2)[, 408 S.E.2d 699, supra].
Institute of Nuclear Power Operations v. Cobb County Bd. of Tax Assessors, 236 Ga. App. 48, 51(1), 510 S.E.2d 844.
The Garden Center urges its entitlement to ad valorem tax exemption in that: (a) its articles of incorporation and bylaws are directed at charitable purposes; (b) its programs and activities in the Marietta-Cobb County community are charitable in nature; (c) its restored property, an historical landmark, is open to the touring public in addition to its dues-paying membership and those renting the property for use as a reception facility; and (d) its rental income is used exclusively to offset operations and maintenance expenses.
"`A familiar meaning of the word "charity" is almsgiving, but as used in the law it may include "substantially any scheme or effort to better the condition of society or any considerable part of it." (Cit.) "`Charity,' as used in tax exemption statutes, is not restricted to the relief of the sick or indigent, but extends to other forms of philanthropy or public beneficence, such as practical enterprises for the good of humanity, operated at moderate cost to the beneficiaries, or enterprises operated for the general improvement and happiness of mankind." 61 CJ 455, § 505,' Sharpe [Tharpe] v. Central Ga. Council, B.S.A., 185 Ga. [810] 813, 196 S.E. 762, 116 A.L.R. 373." Peachtree on Peachtree Inn v. Camp, 120 Ga.App. 403, 409, 170 S.E.2d 709. But of the infinite charities that deserve *896 the plaudits of mankind, our law "restricts tax exemption of institutions of charity to those and those only that are `purely' charitable and also that are `public' charity." United Hosp. Svc. Assn. v. Fulton County, 216 Ga. 30, 32, 114 S.E.2d 524.
Institute of Nuclear Power Operations v. Cobb County Bd. of Tax Assessors, 236 Ga. App. at 52, 510 S.E.2d 844, supra.
The test of whether property is exempt from taxation ... as an institution of "purely public charity" is not whether the owner is an organization of purely public charity, but whether the property is dedicated to charity and used exclusively as an institution of "purely public charity." Tharpe v. Central Ga. Council of Boy Scouts of America, 185 Ga. 810, 196 S.E. 762, 116 A.L.R. 373. That the organization is non-profit, is not used for commercial purposes, and its charter declares it to be a charitable and benevolent institution, do not make it a charitable institution. Mu Beta Chapter Chi Omega House Corp. v. Davison, 192 Ga. 124, 14 S.E.2d 744. Nor does the fact that it may serve a benevolent purpose make it such. Taylor v. Trustees of Jesse Parker Williams Hospital, 190 Ga. 349, 9 S.E.2d 165. See United [Hosp. Svc.] Assn. v. Fulton County, 216 Ga. 30[, 114 S.E.2d 524, supra].
Historic House Museum Corp. v. Camp, 223 Ga. 510, 511, 156 S.E.2d 361.
Certainly no one would dispute that the Garden Center's contribution to aesthetics and appreciation for the environment in Marietta and Cobb County benefits all who visit the Garden Center. Nevertheless, in our view, such benefit to the public must inevitably be regarded as subordinate to those benefits the Garden Center provides the memberships of 34 member clubs through the free use of its facilities and those renting them. Historic House Museum Corp. v. Camp, 223 Ga. 510, 156 S.E.2d 361, supra.
The Garden Center's reliance on Chatham County Bd. of Tax Assessors v. Southside Communities Fire Protection, 217 Ga.App. 361, 365, 457 S.E.2d 267, and Elder v. Henrietta Egleston Hosp. for Children, 205 Ga. 489, 492, 53 S.E.2d 751, for the proposition that rental income does not foreclose entitlement to exemption from ad valorem taxes as a purely public charity is misplaced. The Garden Center correctly notes that the evidence in these cases showed exemption from ad valorem taxation despite the use of property for the production of money used thereafter only to offset expenses. Unlike the circumstances in the case sub judice, the services provided by those charities were provided to "all"[2] requiring assistance, rather than as incident to status as a dues-paying member or private person having purchased a service for a fee. Inasmuch as the undisputed evidence of record shows the contrary in the case sub judice, we conclude the Garden Center is not dispensing purely public charity. In the context of the three-prong test established by York Rite, supra, the evidence shows that the payment of member club dues and rent to the Garden Center results in the provision of substantial services and benefits not available to the general public, that is, the free use of the Garden Center to dues-paying member clubs and *897 their memberships in support of a wide variety of club activities and programs and the use of the facility to non-members paying a rental fee. To the extent this is true, the Garden Center may neither be deemed entirely engaged in charitable pursuits nor its charitable pursuits deemed purely public. For the same reasons, it follows that the Garden Center's property is not used exclusively for charitable objectives. Since the Garden Center failed to meet the three-prong test of York Rite, supra, the superior court erred in determining the Garden Center was purely a charitable institution entitled to exemption from ad valorem taxes. Under the undisputed facts, the superior court further erred in denying the Board's motion for summary judgment.
Judgment reversed.
ANDREWS, P.J., concurs.
RUFFIN, J., concurs specially.
RUFFIN, Judge, concurring specially.
I concur fully with Division 2 of the majority opinion, holding that the Garden Center does not qualify as a "purely public charity" so as to be entitled to an exemption from ad valorem taxation. I also agree that the trial court erred in relying on the Garden Center's equal protection argument as a basis for its ruling, but write separately to express my reasoning on this issue.[1]
In Camp v. Boggs, 240 Ga. 127, 128(1), 239 S.E.2d 530 (1977), the Supreme Court noted that Code Ann. § 92-6912(5)(A) (now OCGA § 48-5-311(e)(1)) allowed a taxpayer, in an appeal to a county board of equalization, to raise "`matters of taxability, uniformity of assessment, and value.'" The Court further noted that (1) the statute required the notice of appeal to "`specifically state the grounds for appeal,'" (2) the board of equalization was required to specifically decide in writing all questions presented to it, and (3) the statute allowed the taxpayer to appeal decisions of the board of equalization to the superior court. Id. The Supreme Court construed the statute to mean that a taxpayer may not, in an appeal to the superior court, assert a different basis for appeal from that raised before the board of equalization. Thus, for example, where the sole issue presented to the board of equalization is the taxability of the subject property, the taxpayer may not raise the separate issue of uniformity of assessments in a de novo appeal to the superior court.
Since the Supreme Court's decision in Camp, the statute has been amended to delete the requirement that a notice of appeal to the board of equalization "`specifically state the grounds for appeal.'" See Ga. L.1990, pp. 1361-1362, § 1. The statute now provides that
[a] written objection to an assessment of real property received by a county board of tax assessors stating the location of the real property and the identification number, if any, contained in the tax notice shall be deemed a notice of appeal by the taxpayer under the grounds listed in paragraph (1) of this subsection[, i.e., taxability, uniformity of assessment, and value].
(Emphasis supplied.) OCGA § 48-5-311(e)(2)(A). Under the current statute, therefore, where a taxpayer files a proper notice of appeal without specifying the grounds for the appeal, the notice of appeal is deemed to raise each of the three statutory grounds.
In this case, however, the notice of appeal filed by the Garden Center clearly indicated that the only ground for appeal was the taxability of the subject property. The Garden Center admits in its appellate brief that its appeal to the board of equalization was based on the issue of taxability. Moreover, its notice of appeal to the superior court also indicated that the only issue raised was taxability. Accordingly, it is clear that the only issue presented to the board of equalization for decision was the taxability of the subject property.
The Garden Center concedes that, under Camp, a taxpayer may not appeal to the *898 board of equalization based on one of the three statutory grounds and then raise a different ground on appeal to the superior court. However, it asserts that its equal protection argument in fact relates to the issue of taxability that was presented to the board of equalization. This assertion is without merit.
Reduced to its essence, the Garden Center's equal protection argument is as follows: (1) regardless of whether the Garden Center meets the criteria for a "purely public charity" as set forth in York Rite Bodies &c. of Savannah v. Bd. of Equalization of Chatham County, 261 Ga. 558(2), 408 S.E.2d 699 (1991), two other entities in allegedly similar circumstances were previously approved for tax-exempt status by the Cobb County board of tax assessors; (2) by not giving the Garden Center tax-exempt status, the board of tax assessors unlawfully treated the Garden Center differently from similarly situated taxpayers. The success or failure of the Garden Center's equal protection argument thus turns not on whether the Garden Center in fact meets the criteria for a "purely public charity," but on whether it is unlawful to treat the Garden Center differently from other similarly situated taxpayers. It is thus clear that the Garden Center's equal protection argument is in fact a challenge to the uniformity of the Board's assessments rather than to the taxability of the Garden Center's property. The fact that the equal protection argument is couched in constitutional terms does not change the analysis, as county boards of equalization are authorized to consider constitutional challenges to tax assessments. See Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga.App. 208, 210(1), 367 S.E.2d 43 (1988). As the Supreme Court noted in Delta Air Lines v. Coleman, 219 Ga. 12, 19(4), 131 S.E.2d 768 (1963),
[t]he discrimination in taxation which the equal protection clauses forbid is the failure of the taxing authorities to tax all like property which is subject to taxation equally or to tax the property of one owner and exempt like property belonging to another owner.
That the Garden Center's equal protection argument does not in fact go to the taxability of its property is made more clear when we consider that
county boards of equalization have ample authority to remedy deficiencies in the uniformity of assessments required by the Constitution, including the authority to order the entire digest recompiled if such action is necessary to obtain uniformity.
Butts County v. Briscoe, 236 Ga. 233, 235(1), 223 S.E.2d 199 (1976). See also OCGA § 48-5-311(d)(2). Thus, even if the Garden Center could show that it was treated differently from a similarly situated taxpayer, this would not automatically lead to the conclusion that its property was not taxable. As the majority correctly notes in Division 2, the Garden Center does not meet the criteria for a purely public charity as laid down by the Supreme Court in York Rite Bodies, supra. Had the Garden Center raised the issue of uniformity before the board of equalization, and established that it was treated differently from other similarly situated taxpayers, the Board could have remedied the situation by reexamining the taxability of the other taxpayers' property, rather than by giving the Garden Center an unauthorized tax exemption.
Because the Garden Center's equal protection argument is in fact a challenge to the uniformity of the Board's assessments rather than a challenge to the taxability of the subject property, and because the issue of uniformity was not presented to the board of equalization for decision, I agree with the majority that the trial court erred in considering such issue in ruling on the parties' motions for summary judgment.
NOTES
[1] The Garden Center's appeal to the Board pertinently provided:
Please allow this correspondence to serve as formal notice of our client's appeal of the decision rendered by the Board of Tax Assessors denying the Center's application for exemption. Our client believes that its property is most eligible to receive tax exempt status in that it is not operated for profit and provides educational, civic, and charitable services to not only the City of Marietta and Cobb County, but to the entire state. In addition, the Center does not have paid employees and is operated through the volunteer efforts of members of the community who realize the great needs which the operation of the Center fulfills.
[2] In reaching this conclusion in Elder v. Henrietta Egleston Hosp., 205 Ga. at 491, 53 S.E.2d 751, supra, the Supreme Court noted that a contrary result would have been required had the case been decided before the adoption of the Constitution of 1945 under such cases as Trustees of the Academy of Richmond County v. Bohler, 80 Ga. 159, 7 S.E. 633 which held the property of purely public charitable institutions was taxable "when used for private or corporate profit or income." Elder, supra.
Art. VII, Sec. I, Par. IV of the State Constitution of 1945 pertinently provided:
"[A]ll institutions of purely public charity; ... provided the property so exempted be not used for the purpose of private or corporate profit and income, distributable to shareholders in corporations owning such property or to other owners of such property, and any income from such property is used exclusively for religious, educational and charitable purposes, or for either one or more of such purposes and for the purpose of maintaining and operating such institution."
Elder v. Henrietta Egleston Hosp., 205 Ga. at 492, 53 S.E.2d 751, supra.
The use of property to produce income as not defeating entitlement to exemption from ad valorem property taxation is reflected today by the third prong of York Rite Bodies &c. of Savannah v. Bd. of Equalization of Chatham County, 261 Ga. 558(2), 408 S.E.2d 699, supra ("[T]he use of the property must be exclusively devoted to those charitable pursuits.").
[1] Contrary to the Garden Center's contention, I believe this issue, which was addressed in the Board's brief, comes within the scope of the Board's first enumeration of error, which contends that it was entitled to summary judgment because the Garden Center was not a purely public charity. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332610/ | 194 S.E.2d 170 (1972)
NATIONWIDE MUTUAL INSURANCE COMPANY
v.
Curtis Lee CONLEY et al.
No. 13101.
Supreme Court of Appeals of West Virginia.
Submitted September 27, 1972.
Decided December 21, 1972.
*171 George L. Partain, John C. Valentine, Logan, for appellant.
Barrett & Chafin, James F. Barrett, Huntington, for appellees.
CAPLAN, Judge:
In a declaratory judgment action instituted in the Circuit Court of Logan County by Nationwide Mutual Insurance Company, a corporation, said company sought to have the rights of the parties, in relation to an insurance policy issued by it, determined and adjudicated. Its ultimate objective was to have said policy declared void ab initio.
Upon the pleadings and after considering the evidence, the court, in compliance with the requirements of Rule 52, West Virginia Rules of Civil Procedure, made certain findings of fact and noted its conclusions of law. It held that the subject insurance policy was void ab initio in all respects as between Nationwide and Curtis Lee Conley, the purchaser of the policy, but further held that Nationwide was estopped to deny the validity of the policy as to the other defendants who alleged rights to benefits thereunder. From this decision and the judgment entered pursuant thereto Nationwide prosecutes this appeal.
On December 28, 1966 defendant Conley purchased an automobile liability and collision insurance policy from Nationwide through its agent, Stanley H. Ferguson. From the record of this proceeding it appears that Conley, desiring to purchase an automobile, requested Lester Perry to assist him in borrowing the necessary money by co-signing his note. Mr. Perry agreed to do so on the condition that Conley would obtain a liability policy covering the operation of such vehicle. Pursuing this plan, Conley, together with his wife, Judith, and Mr. Perry, went to Ashland Finance Company to obtain the desired loan. Upon informing Jerry Hainer, the manager of Ashland, that it was necessary for him to obtain liability insurance in order to get Mr. Perry to co-sign his note, Mr. Hainer called Mr. Ferguson, an agent of Nationwide.
When Mr. Ferguson arrived at Ashland, he, with Mr. and Mrs. Conley and Mr. Perry, retired to a small booth where he began to fill out the insurance application for Mr. Conley. Admittedly, the answers on the application form were written by Mr. Ferguson. There was much conflicting evidence as to the information on the application and the manner in which such information was obtained, all of which gave rise to this controversy.
Among other questions on the application, Conley was asked to list any criminal arrests, if other than traffic, for the owner or any driver. The answer thereto was "Not in last 5 years." It is alleged in the complaint that this answer was untrue, false and fraudulent and that Conley knew it was untrue. Nationwide also alleged that Mr. Ferguson believed such answer to be true. A further question on the application asked: "Have you or any drivers of your automobile had an accident or been charged with a traffic violation in last 5 years?" In answer thereto an X was marked in the box designated "No." Nationwide alleges this to be false; alleges that Conley knew it was false; and that Mr. Ferguson believed the reply to be true.
Upon completion of the application it was signed by Mr. Conley, who thereby purportedly declared the statements therein to be true. Mr. Ferguson testified that he afforded Conley an opportunity to read the completed application and that he believed that he did read it. Mr. Conley and Mr. Perry, appearing on behalf of Mr. Conley, testified that Mr. Ferguson merely told Conley to sign the application; that he did not permit him to read it; and that Conley did not read it. On the same afternoon of the day on which this application was completed, *172 December 28, 1966, Mr. and Mrs. Conley obtained the policy from Mr. Ferguson's office. The application was sent to Nationwide by the agent and, as was its practice, an investigation of Mr. Conley was begun.
On January 13, 1967, Conley was involved in an automobile accident with two other vehicles wherein all of said vehicles were damaged and the occupants, including Conley, were injured. These injured persons are the other defendants referred to above.
In its complaint Nationwide alleges that, by reason of the false and fraudulent statements and representations on the application, the subject insurance policy is void and that it is not liable under the provisions thereof, either to Conley or to the other defendants for any claims they may assert against Conley. For these and other reasons stated in its complaint, Nationwide sought to have the subject insurance policy judicially determined to be void.
It is the position of the defendants that Nationwide did not sustain the burden of proof necessary to show that Conley gave false answers to questions on the application or that if misrepresentations were made that Nationwide believed or relied thereon. They further assert that Nationwide was negligent in issuing the policy to Conley and were therefore estopped to deny its validity. The court, agreeing in part with Nationwide, held that Conley's representations on the application were false, that they were material, that they were relied on and that the policy was therefore void as to Conley. However, the court further held that Nationwide was estopped to deny the validity of the policy as to the other defendants, the basis for its holding being that Nationwide, upon being informed of Conley's drinking habits, was negligent in issuing such insurance policy.
Was the trial court's ruling that the policy was void as to Conley, the insured, supported by the evidence? Much of the evidence was conflicting. Mr. Ferguson testified that he wrote the answers on the application for insurance as related to him by Mr. Conley. This was disputed by Conley, his wife and Mr. Perry. Mr. Conley stated that he could not read or write, but an exhibit reflecting his grades in the seventh grade would tend to show that his statement was false. Mr. Perry said that the insurance was not to be effective until after an investigative report was received; yet, he acknowledged that when they left Ashland Finance he believed that Conley was fully insured. It is not deemed necessary to detail the testimony suffice to say that an examination thereof shows much conflict.
When a case is decided on conflicting evidence this Court will rarely disturb the decision. Succinctly stating this proposition, Point 6 of the Syllabus of Daugherty v. Ellis, 142 W.Va. 340, 97 S.E.2d 33 says: "The finding of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding." United Fuel Gas Company v. Battle, 153 W.Va. 222, 167 S.E.2d 890; Intercity Realty Company v. Gibson, W.Va., 175 S.E.2d 452; State Road Commission v. Oakes, 150 W.Va. 709, 149 S.E.2d 293; Lewis v. Dils Motor Company, 148 W.Va. 515, 135 S.E.2d 597; Green v. Henderson, 136 W.Va. 329, 67 S.E.2d 554.
The court in the instant case heard the evidence in lieu of a jury. It was in a position to view the witnesses while testifying, to observe their demeanor and to thereby judge the credibility of such testimony. Certainly there is sufficient evidence to support the court's findings. Furthermore, an examination of the record is no manner reveals that the evidence preponderates against such findings. We are therefore of the opinion to and do affirm *173 the findings of the trial court wherein it held the policy to be void ab initio as between Nationwide and Conley and of no force or effect.
Nationwide assigned as error the action of the court in holding that it, through its agent, Ferguson, was negligent in issuing an automobile liability policy to Conley and that it was therefore estopped to deny the validity of such policy as to the defendants who were injured in the aforesaid accident. This assignment of error, in the circumstances of this case, is meritorious. The basis of the court's ruling was that Ferguson, being forewarned when informed that Conley had been convicted of driving while intoxicated, should not have issued a policy; and that he thereby, referring to Conley, "set [him] loose upon society."
In the foregoing, the court was inconsistent. It had already ruled that Conley was guilty of answering questions on the application falsely. Conley had falsely stated, according to the court's findings, that he had not been arrested for any offense within the past five years, when, in fact, he had been convicted of drunken driving four years prior to the date of the application. Mr. Ferguson testified, and his testimony was supported by James Frye, an underwriting expert for Nationwide, that, although Nationwide frowned on the practice of issuing a policy to anyone who had been convicted of the above offense, if such conviction had occurred more than five years prior to the application, a policy would be issued. Mr. Ferguson had been told by Conley that such conviction took place seven years ago. We believe that the court erred in charging Ferguson with negligence in the circumstances revealed by the record. Therefore, there being no negligence on the part of the agent, there is no ground for the application of the doctrine of estoppel.
The subject policy having been issued voluntarily and not under the compulsion of an assigned risk, or financial responsibility law, and the policy having been declared void ab initio, because of false representations, the insurer could not be held liable thereunder. See Safeco Insurance Company of America v. Gonacha, 142 Colo. 170, 350 P.2d 189. In that case the court held that the policy was void as to the persons injured by the purchaser of the policy. See also Woloshin v. Century Indemnity Co., 116 N.J.L. 577, 186 A. 44 and 46 C.J.S. Insurance § 1191. Furthermore, this policy having been declared void ab initio, it is of no force or effect, and in the absence of a curative statute, it cannot have life breathed into it for any purpose. A contract, void ab initio, is without legal effect. Such contract never had any legal existence and cannot form the basis of liability in the instant case. See National Union Indemnity Co. v. Bruce Bros., Inc., 44 Ariz. 454, 38 P.2d 648 and Webber v. Spencer, 148 Neb. 481, 27 N.W.2d 824.
For the reasons stated herein the judgment of the Circuit Court of Logan County is affirmed wherein the automobile insurance policy was held to be void ab initio as to the policyholder, but said judgment is reversed wherein it held that Nationwide was estopped to deny the validity of the policy as to the defendants injured in the automobile accident.
Affirmed in part; reversed in part.
CARRIGAN, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332619/ | 127 Ga. App. 664 (1972)
194 S.E.2d 680
HUNTER
v.
THE STATE.
47655.
Court of Appeals of Georgia.
Submitted November 8, 1972.
Decided November 15, 1972.
Rehearing Denied November 30, 1972.
*665 Auman & Miller, Roger R. Auman, for appellant.
Earl B. Self, District Attorney, Ralph Hill, Jr., for appellee.
DEEN, Judge.
1. Between three and four in the morning police cars converged on a country grocery store pursuant to information that a burglary was in progress. Two unidentified men, one in a white shirt, fled across a footbridge and into a wood. Just the other side of the footbridge were found a crowbar and a glove; at the corner of the building were two burlap sacks, the inference being that the latter had been recently dropped because they were not damp with dew. On a bank in the wooded area peace officers within a short space of time apprehended and arrested Hunter and the co-defendant, Woody, and recovered three gloves. They were taken back to the store and from there removed to jail. The officers soon afterward discovered an automobile on a country road about four tenths of a mile from the store and in the general direction of the defendant's flight. It was empty; the radiator was warm, and it was illegally parked with two wheels on the road. It was towed to a service station some time before dawn. Investigation of the license number showed it to belong to the defendant, but whether this information was available before or after a search conducted at the station later that morning does not appear. Another glove was found in the automobile and sweepings from the back floorboard matched in organic content (ground corn) debris taken from the inside of the bags found at the scene of the crime. Our concern is with the denial of the motion to suppress the evidence taken from the automobile, without a search warrant, and is restricted to two narrow questions: (1) whether there was any "first instance" right to interfere with the automobile and (2) if such right existed, whether it protected the searchers later in the day when they made the search without a warrant. In thus defining the problem, we accept the premise implicit in all the cases since Mapp v. Ohio, 367 U. *666 S. 643 (81 SC 1684, 6 LE2d 1081), that a search without warrant is prima facie illegal and must be shown to come within some recognized exception before the evidence can be admitted, and also the conclusion that must be drawn from Chimel v. California, 395 U.S. 762 (89 SC 2034, 23 LE2d 685) and like cases, that a search is not permissible as "incident to" the arrest without a warrant when it is not contemporaneous with it and conducted in an area within the immediate control of the prisoner, that is, an area so contiguous that he might gain control of a weapon, destroy evidence, and so on.
The arrest itself did not give the officers license to search an unidentified automobile some half mile away on the incident-to-arrest theory. However, the fact that it was unattended on a lonely road in a wood in the early hours of morning at a point toward which the defendant had been moving when arrested, that it showed signs of recent use, and that it was illegally parked, combined so that an immediate search would have been legal because reasonable. See in this connection Croker v. State, 114 Ga. App. 43 (150 SE2d 294), where an immediate search of a car legally parked in a residential area was held reasonable by a majority of the court under circumstances much milder than prevail here, upon the application of Fourth Amendment standards.
In Preston v. United States, 376 U.S. 364 (84 SC 881, 11 LE2d 777), it is held that once the defendant is in custody a search at another place is not incident to the arrest but must be treated as though it is in the defendant's or his agent's own possession, safe from intrusion. This is not true where, as in Cooper v. California, 386 U.S. 58 (87 SC 788, 17 LE2d 730), the vehicle is being held on proceedings to declare it contraband because of alleged use in transporting narcotics, and therefore required to be kept as evidence in a forfeiture proceeding. Following this case, in Chambers v. Maroney, 399 U.S. 42 (90 SC 1975, 26 LE2d 419), it was held that where there was probable cause to stop a vehicle and arrest the occupants (based on a description *667 of the perpetrators of a holdup just consummated), these constituted exigent circumstances (on authority of Carroll v. United States, 267 U.S. 132 (45 SC 280, 69 LE 543, 39 A.L.R. 790)) which allowed the judgment of the police as to probable cause to serve as a sufficient authorization for a search, and a search after the vehicle was brought in was approved because if it could be searched on the spot "the probable cause factor still obtained at the station house." This was followed by Coolidge v. New Hampshire, 403 U.S. 443, 457 (91 SC 2022, 29 LE2d 564), where it was held error, after arresting a defendant within his home without a warrant, to return, take an automobile parked in his driveway to the station house, and search it there some days later. "Even assuming arguendo that the police might have searched the Pontiac in the driveway when they arrested Coolidge in the house, Preston v. United States, 376 U.S. 364 [supra], makes it plain that they could not legally seize the car, remove it, and search it at their leisure without a warrant."
What appears from all these cases (evading the somewhat metaphysical discussion between Justices White and Harlan about relationship of reasonableness of search to probable cause) is that to make the search reasonable on the spot it must either be incident to arrest or contain other elements sufficient in themselves to authorize the peremptory action, and as to the latter, probable cause may be a contributing or even a sufficient factor; if however, the vehicle might be searched on the spot, there is a choice between leaving it guarded while someone goes for a warrant or taking it in custody while the warrant is being obtained, and, if the latter, a search of the vehicle at the time the vehicle is brought in or during the same morning will not be held unreasonable if it would not be unreasonable if performed on the spot. But it cannot be held for several days and then searched without a warrant, which is the holding in Coolidge, supra. The appellant protests on respectable authority that there are no exigent circumstances in this case to justify the search without a warrant, and only because of its *668 being reasonably contemporaneous with the discovery of the automobile, its suspected connection with the case, and the fact that it was legally moved because in violation of parking regulations do we find it within the exception to the constitutional requirements. The motion to suppress was properly denied in this case. Since sweepings from the burlap bags and the automobile were shown to correspond, it was also proper to allow the bags to be introduced in evidence.
2. The scope of cross examination of a witness rests largely within the discretion of the trial judge. Clifton v. State, 187 Ga. 502, 508 (2 SE2d 102). It is not reversible error that after the defendant, giving sworn testimony, had stated on direct examination that he did not know where the co-defendant was but that he had already been tried and he presumed he was up in Chattanooga working, to allow the district attorney by cross examination to attempt to establish that the defendant knew the co-defendant's case had resulted in a mistrial and that he had skipped bond, especially as the defendant admitted he had seen Woody the day before.
3. The evidence, although circumstantial, was sufficient to authorize the conviction.
Judgment affirmed. Eberhardt, P. J., and Clark, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332516/ | 643 S.E.2d 395 (2007)
In the Interest of M.J.L. et al., children.
No. A06A2369.
Court of Appeals of Georgia.
March 13, 2007.
*396 Lawrence W. Daniel, for appellant.
Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Sanders B. Deen, Marietta, for appellee.
MILLER, Judge.
Following the termination of their respective parental rights, the biological mother of M.J.L. and J.J.S. and the biological father of J.J.S. filed this appeal. The parents assert that the juvenile court erred in finding clear and convincing evidence that the children were deprived. Discerning no error, we affirm.
On appeal, we view the evidence in the light most favorable to the trial court's judgment to determine whether "any rational trier of fact could have found," by clear and convincing evidence, that the biological parents had forfeited their parental rights. In the Interest of C.R.G., 272 Ga.App. 161, 611 S.E.2d 784 (2005). In so doing, we "neither weigh[] evidence nor determine[] the credibility of witnesses; rather, we defer to the trial court's fact-finding and affirm unless the appellate standard is not met." (Citation omitted.) Id. at 162, 611 S.E.2d 784
So viewed, the evidence shows that on October 9, 2003, the children and their sibling, J.S., were taken into custody by the State Division of Family and Children Services, acting through the Cobb County Department of Family and Children Services (the "Department"). The Department sought custody after J.S. was hospitalized for multiple physical injuries, including blunt force trauma to the brain, and placed on life support. Shortly thereafter, J.S. died from his injuries, and the parents were indicted for his murder.[1]
Because it appeared that J.S.'s condition resulted from severe physical abuse, the Department sought and received an order of temporary protective custody of the children. That order found that the children were deprived and noted that the parents had consented to the finding of deprivation.
On January 17, 2004, the juvenile court issued a temporary placement order which allowed the Department to retain custody of the children and which specifically found that the children were deprived. The parents did not appeal either of these orders.
On June 17, 2004, the Department filed a petition to terminate the parental rights of each parent. Following an extensive hearing, the juvenile court granted that petition. It is from that ruling that the parents appeal.
A juvenile court's termination of parental rights is a two-step process: The first step *397 requires a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) such cause of deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are satisfied, the court must then determine whether termination of parental rights is in the child's best interest, considering physical, mental, emotional, and moral condition and needs, including the need for a secure and stable home.
(Citations and punctuation omitted.) In the Interest of A.C., 272 Ga.App. 165, 166, 611 S.E.2d 766 (2005).
Here, the parents have appealed only the juvenile court's finding that the children were deprived. They have not appealed the findings as to the remaining three factors underlying the juvenile court's determination of parental misconduct or inability. See OCGA § 15-11-94(b). Nor have they appealed the finding that termination of parental rights was in the best interest of the children.
Given that the parents failed to appeal the juvenile court's prior findings of deprivation, however, they are bound by the same. See In the Interest of M.S., 279 Ga.App. 254, 261(1), 630 S.E.2d 856 (2006) (Deprivation proceedings are separate and distinct from parental termination proceedings, and "a termination proceeding is not the proper time to assert error in the deprivation proceedings."); In the Interest of A.C., supra, 272 Ga.App. at 166(1)(a), 611 S.E.2d 766 (Where a deprivation order is not appealed, the parents are "bound by [the] finding of deprivation for purposes of the termination hearing."). The parents' sole enumeration of error, therefore, is without merit.
In light of the foregoing, we affirm the judgment of the juvenile court terminating the appellant-mother's parental rights as to both M.J.L. and J.J.S. and terminating the appellant-father's parental rights as to J.J.S.
Judgment affirmed.
JOHNSON, P.J., and ELLINGTON, J., concur.
NOTES
[1] We take judicial notice of the fact that, since the filing of this appeal, both parents have been convicted of felony murder in connection with J.S.'s death. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724910/ | 203 So. 2d 554 (1967)
251 La. 216
Clyde Ray JENNINGS
v.
RALSTON PURINA COMPANY et al. and Aetna Insurance Company et al.
No. 48890.
Supreme Court of Louisiana.
November 6, 1967.
The application is denied. According to the facts of the case as found to be by the Court of Appeal, the judgment complained of is correct.
SUMMERS, J., is of the opinion the writ should be granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743532/ | 289 Wis. 2d 550 (2006)
710 N.W.2d 725
2006 WI App 31
STATE v. BLANKS.
No. 2005AP000328.
Court of Appeals of Wisconsin.
January 11, 2006.
Unpublished opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333001/ | 291 S.E.2d 828 (1982)
Marie R. LEONARD, Administratrix of the Estate of Samuel L. Leonard, Deceased
v.
JOHNS-MANVILLE SALES CORPORATION, A Delaware Corporation; Unarco Industries, Inc., An Illinois Corporation; GAF Corporation, A Delaware Corporation; Armstrong Cork Company, A Pennsylvania Corporation; Raybestos-Manhattan, Inc., A Connecticut Corporation; Owens-Corning Fiberglass Corporation, A Delaware Corporation; Pittsburgh Corning Corporation, A Pennsylvania Corporation; the Celotex Corporation, A Delaware Corporation; Nicolet Industries, A Pennsylvania Corporation; Forty-Eight Insulation, Inc., An Illinois Corporation; Eagle-Picher Industries, Inc., An Ohio Corporation; Standard Asbestos & Insulation Co., A Missouri Corporation; Owens-Illinois, Inc., An Ohio Corporation; H. K. Porter, A Pennsylvania Corporation; National Gypsum Co., A Delaware Corporation; Fibreboard Corporation, A Delaware Corporation; Garlock, Inc., A Foreign Corporation; Keene Corporation, A New Jersey Corporation; North American Asbestos Corporation, A Foreign Corporation; Carey Canadian Mines, Ltd., A Foreign Corporation; Lake Asbestos of Quebec, Ltd., A Foreign Corporation; Amatex Corporation, A Pennsylvania Corporation; Southern Asbestos Company.
No. 8114SC1020.
Court of Appeals of North Carolina.
June 1, 1982.
*829 Haywood, Denny & Miller by George W. Miller, Jr. and Michael W. Patrick, Durham, for plaintiff.
Crossley & Johnson by John F. Crossley, Wilmington, for defendant Johns-Manville Sales Corp.
Smith, Moore, Smith, Schell & Hunter by McNeill Smith and Gerard H. Davidson, Jr., Greensboro, for defendant Raybestos-Manhattan, Inc.
Poisson, Barnhill & Britt by Donald E. Britt, Jr., Wilmington, for defendant Owens-Corning Fiberglas Corp.
C. K. Brown, Jr., Raleigh, for defendant The Celotex Corp.
Maupin, Taylor & Ellis by Armistead J. Maupin and Richard M. Lewis, Raleigh, for defendant Eagle-Picher Industries, Inc.
HARRY C. MARTIN, Judge.
Although plaintiff argues that on 26 May 1981 Judge Braswell again denied attorney Motley's motion for admission pro hac vice, the record on appeal does not sustain that contention. It is clear that Judge Braswell only denied plaintiff's alternative motion to reconsider the order of 4 March 1981. Plaintiff did not except to the order of 4 March 1981, and plaintiff's notice of appeal is only directed to the order of 26 May 1981.
The order of Judge Braswell denying plaintiff's motion to reconsider the order of 4 March 1981 is an interlocutory order and is not immediately appealable. Stanback v. Stanback, 287 N.C. 448, 215 S.E.2d 30 (1975); Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950); Pack v. Jarvis, 40 N.C. App. 769, 253 S.E.2d 496 (1979). It does not come within the statutory appeals in N.C. G.S. 1-277(a) or 7A-27(d).
The court's ruling did not affect a substantial right of plaintiff. The motion to reconsider the prior order of the court was addressed solely to the discretion of the court and is not reviewable unless there has been an abuse of discretion. Veazey, supra; Dworsky v. Insurance Co., 49 N.C.App. 446, 271 S.E.2d 522 (1980). No such abuse appears in the record on appeal. We note that plaintiff is represented by the able law firm of Haywood, Denny & Miller of Durham, North Carolina. Moreover, three members of Mr. Motley's South Carolina firm of Blatt and Fales have already been admitted pro hac vice as counsel for plaintiff in this case. It appears that plaintiff has a plethora of distinguished counsel representing her.
Furthermore, where the court in its discretion denies a motion for admission of counsel pro hac vice, as Judge Braswell did here, such order does not involve a substantial right and is not appealable as a matter of right. This is so because parties do not have a right to be represented in the courts of North Carolina by counsel who are not duly licensed to practice in this state. Admission of counsel in North Carolina pro hac vice is not a right but a discretionary privilege. N.C.Gen.Stat. § 84-4.1 (1981); In re Smith, 301 N.C. 621, 272 S.E.2d 834 (1981). "It is permissive and subject to the sound discretion of the Court." State v. Hunter, 290 N.C. 556, 568, 227 S.E.2d 535, 542 (1976), cert. denied, 429 U.S. 1093, 97 S. Ct. 1106, 51 L. Ed. 2d 539 (1977).
*830 We are not inadvertent to Holley v. Burroughs Wellcome Co., 56 N.C.App. 259, 289 S.E.2d 393 (1982). In Holley, the Court did not consider whether the appeal was interlocutory, and it is not precedent establishing a right of appeal from an order denying a petition for admission of counsel pro hac vice.
The statement in Hagins v. Redevelopment Comm., 275 N.C. 90, 102, 165 S.E.2d 490, 498 (1969), that "[n]ormally, a litigant has a fundamental right to select the attorney who will represent him in his lawsuit...." was not made in the context of a proceeding pursuant to N.C.G.S. 84-4.1. In Hagins plaintiff contested the appointment of a guardian ad litem to represent her, alleging that as a result she was deprived of the control of her lawsuit. The Hagins statement (referred to in Holley) is not authority for the proposition that a litigant has a right to be represented in the courts of North Carolina by counsel who are not duly licensed to practice in this state.
The United States Constitution does not protect pro hac vice proceedings. Procedural due process is not required in the granting or denial of petitions to practice pro hac vice in the courts of another state. Leis v. Flynt, 439 U.S. 438, 99 S. Ct. 698, 58 L. Ed. 2d 717, rehearing denied, 441 U.S. 956, 99 S. Ct. 2185, 60 L. Ed. 2d 1060 (1979). Mr. Motley is not duly licensed as an attorney by the State of North Carolina. Plaintiff has no right to be represented by Mr. Motley in this case. This being so, it follows that no substantial right of plaintiff was involved in the court's ruling on 26 May 1981. This also applies to plaintiff's objections to the orders allowing counsel to appear pro hac vice for defendants.
Appeal dismissed.
MORRIS, C. J., and CLARK, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333013/ | 299 S.E.2d 279 (1983)
John Edward BROWN
v.
Marian Davis LANIER and Linwood Lanier.
No. 824SC178.
Court of Appeals of North Carolina.
February 1, 1983.
*281 Keith E. Fountain, Jacksonville, for plaintiff.
Dunn & Dunn by Raymond E. Dunn, New Bern, for defendants.
WELLS, Judge.
This appeal involves interpretation of the provisions of G.S. 1A-1, Rules 7, 8, and 9 of the Rules of Civil Procedure. More specifically, we address the question of whether plaintiff was required to file a reply alleging fraud and misrepresentation. Defendants contend that summary judgment was properly granted because plaintiff failed to specifically plead the fraud he relies on in avoidance of the release. We disagree and reverse.
Rule 7 of the Rules of Civil Procedure allows filing a reply only when, in an answer, a defendant expressly asserts a counterclaim or when the defendant's answer raises a defense of contributory negligence and the plaintiff wants to retort by alleging last clear chance. Otherwise, a reply may be served only on order of the trial court. See generally Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977); and Shuford, N.C.Civ.Prac. & Proc. (2nd Ed.), § 7-6. Rule 8(d) deems affirmative defenses appearing in the answer to be denied or avoided if a reply is neither required nor permitted. Vernon v. Crist, supra. While Rule 9(b) provides that, in pleading, all averments of the circumstances constituting fraud shall be stated with particularity, "better pleading practice dictates that a plaintiff should not anticipate a defense and undertake to avoid it in his complaint." Vernon v. Crist, supra, citing Exum v. Boyles, 272 N.C. 567, 158 S.E.2d 845 (1968).
Plaintiff was not required to plead matters in avoidance of affirmative defenses, he could not as a matter of right file a reply to plead such matters, and he was not required to seek leave to plead such matters. See, e.g., Eubanks v. Insurance Co., 44 N.C.App. 224, 261 S.E.2d 28 (1979), disc. rev. denied, 299 N.C. 735, 267 S.E.2d 661 (1980). Thus, defendants' affirmative defense of release is deemed avoided or denied by Rule 8(d) and no further pleadings were required.
Under general principles of notice pleading,
[a] pleading complies with [Rule 8(a)(1)] if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, andby using the rules provided for obtaining pretrial discoveryto get any additional information he may need to prepare for trial.
Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). Defendants' answer makes it clear that they were aware of the material facts pertaining to the lawsuit. Moreover, defendants' discovery efforts which commenced with the filing of their answer resulted in responses from plaintiff which clearly revealed his position as to the events surrounding the alleged release. Had defendants desired more specific pleadings, they could have moved the trial judge to order a reply pursuant to Rule 7.
Plaintiff's complaint stated a claim in negligence. Defendants' answer raised the affirmative defense of release. A release procured by fraud or misrepresentation is invalid. Cunningham v. Brown, 51 N.C.App. 264, 276 S.E.2d 718 (1981). The duty of a person signing a contract to read the contract is not absolute. Sexton v. Lilley, 4 N.C.App. 606, 167 S.E.2d 467 (1969).
The materials on file clearly show that, while the parties are in agreement that plaintiff did in fact sign the release, there are genuine disputes as to whether he *282 knew what he was signing and as to whether the release was obtained by misrepresentation or fraud. At summary judgment, the trial court must consider not only the pleadings, but also the facts which are forecast by the evidentiary showing. See Mims v. Mims, 305 N.C. 41, 286 S.E.2d 779 (1982), and cases cited therein. The judgment of the trial court must be reversed and the case remanded for trial.
Reversed and Remanded.
VAUGHN, C.J., and BRASWELL, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333017/ | 165 Ga. App. 118 (1983)
299 S.E.2d 170
OSBURN et al.
v.
NORRIS.
64964.
Court of Appeals of Georgia.
Decided January 12, 1983.
Leon A. Wilson II, for appellants.
J. Edwin Peavy, for appellee.
McMURRAY, Presiding Judge.
In Norris v. Osburn, 243 Ga. 483, 486 (254 SE2d 860), the Supreme Court affirmed the trial court in dismissing the complaint of Norris, the same being a derivative action in which Norris alleged he was the owner of 10 shares of stock in a certain corporation in which Osburn was the president and principal shareholder, contending Osburn had appropriated two tracts of corporate real estate to his own use. At page 486 the Supreme Court held that the trial court was authorized to dismiss the complaint (1) on the ground that the statute of limitation had run; (2) Norris was guilty of laches barring him from the right to equitable relief; and (3) Norris never paid the consideration for his shares of stock and had never become a legal shareholder of the corporation.
In the case sub judice Raymond C. Osburn, Sr., Judy P. Osburn and a third party (later dropped, by stipulation of the parties, as a party plaintiff who did not desire to pursue the claim) filed this action for malicious use of process against the defendant Gary L. Norris, who had filed the derivative shareholder's suit which was dismissed and affirmed in Norris v. Osburn, 243 Ga. 483, supra. The complaint is based upon the original claim alleging that plaintiffs Osburn, as officers of said corporation, had fraudulently appropriated the properties and business and other assets of said corporation and converted same to their own use and personal gain and same had been carried out intentionally, wilfully and without any justification whatsoever for the sole motive of extorting monies from the plaintiffs with the full knowledge of the falsity of same. This action seeks to recover exemplary damages to deter defendant from repeating such wrongs or as compensation for the wounded feelings of the plaintiffs.
The defendant answered admitting jurisdiction and the filing of *119 the original suit and the outcome thereof, copy of which was attached to the pleadings, but otherwise denied the claim.
Thereafter, with reference to this malicious use of civil process case the parties stipulated that the plaintiffs were not arrested and the property of the plaintiffs was not attached, although Norris procured the issuance by the court of a rule nisi and an ex parte restraining order, later dissolved. The parties further stipulated that Norris had sought a temporary injunction and the appointment of a receiver of the assets of said corporation; the creation of a constructive trust in the corporate assets; the property in the constructive trust be transferred of record to Norris or in the alternative the Osburns pay into the corporation the fair market value of the property at the time of the sale; the assets and properties of said corporation once determined be liquidated and distributed among the shareholders in their rightful pro rata share; and, for such other and further relief as the court deemed proper. The damages which the plaintiffs contend they sustained as a result of that suit "claimed to be recoverable herein" are attorney fees for employing counsel in the previous civil action, other expenses of litigation involved in the former civil action and exemplary or general damages as compensation to deter Norris from repeating such wrongs or as compensation for the wounded feelings of the plaintiffs.
A motion for summary judgment was filed by the defendant Norris based upon the above stipulations of the parties. The motion was granted after a hearing, and the plaintiffs appeal. Held:
The only issue involved here is whether a claim for damages cognizable in an action for malicious use of civil process was made. If not, the trial court was correct in granting summary judgment in favor of the defendant and in dismissing the complaint.
The defendant contends that the plaintiffs incurred no recoverable damages by reason of plaintiffs' defense of the shareholders derivative action suit. In Taylor v. Greiner, 247 Ga. 526, 528 (277 SE2d 13), the Supreme Court held that this court in Taylor v. Greiner, 156 Ga. App. 663 (275 SE2d 737), at page 665 had correctly stated the Georgia law in "holding that a cause of action for malicious use of process will not lie absent a showing that the defendant was arrested, or his property attached, or he suffered some other special damage by reason of the serving out of the process, Mitchell v. Southwestern Railroad, 75 Ga. 398 (3) (1885); Jacksonville Paper Co. v. Owen, 193 Ga. 23 (17 SE2d 76) (1941); and that the expenses of defending the suit are not special damages within this rule. Jacksonville Paper Co. v. Owen, supra; [Dixie Broadcasting Corp. v. Rivers], 209 Ga. 98, 108 (70 SE2d 734)." Under the circumstances here, where the effect of the parties' stipulation was that there were no *120 special damages, and as a party may not recover attorney fees for employing counsel in the previous civil action (Dixie Broadcasting Corp. v. Rivers, 209 Ga. 98, 108, supra, and cases cited at page 108), the trial court did not err in granting summary judgment.
Judgment affirmed. Banke and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333052/ | 291 S.E.2d 913 (1982)
STATE of North Carolina
v.
Benjamin Franklin GRANT, III.
No. 818SC1279.
Court of Appeals of North Carolina.
June 1, 1982.
*915 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. J. Chris Prather, Raleigh, for the State.
David M. Rouse, Goldsboro, for defendant-appellant.
VAUGHN, Judge.
Defendant raises several assignments of error on appeal. None of them disclose prejudicial error.
In Assignment of Error No. 1, defendant argues that the court erred in failing to allow him to cross-examine the prosecuting witness as to whether she had filed a civil lawsuit for damages against him based on the facts involved in the prosecution. We agree that the court improperly limited the scope of cross-examination.
Cross-examination of an opposing witness for the purpose of showing his bias or interest is a substantial legal right. Jurors are to consider evidence of any prejudice in determining the witness' credibility. State v. Hart, 239 N.C. 709, 80 S.E.2d 901 (1954). In the present case, the prosecuting witness' pecuniary interest in the outcome of defendant's prosecution was clearly evidence which might have caused a jury to discount her testimony. The court, therefore, erred in its exclusion.
Ordinarily, such an exclusion of impeaching evidence would constitute reversible error since Mrs. Allen was the only witness, other than defendant, to the alleged assault. See State v. Treadaway, 249 N.C. 657, 107 S.E.2d 310 (1959); State v. Hart, supra. The present record indicates, however, that evidence of Mrs. Allen's pending civil action was later admitted without objection. Defendant has, therefore, failed to show prejudicial error entitling him to a new trial. See G.S. 15A-1443(a). The assignment of error is overruled.
In Assignment of Error No. 5, defendant argues that the court erred in failing to instruct the jury on justification. We disagree.
One without fault in provoking or continuing an assault is privileged to use such force as is reasonably necessary to protect himself from bodily harm or offensive physical contact. State v. Anderson, 230 N.C. 54, 51 S.E.2d 895 (1949). If defendant's evidence, even though contradicted by the State, raises the issue of self-defense, it is error for the court not to charge on the defense. State v. Blackmon, 38 N.C. App. 620, 248 S.E.2d 456 (1978), cert. denied, 296 N.C. 412, 251 S.E.2d 471 (1979).
The present defendant testified that Estelle Allen was the aggressor in the physical confrontation. It was only after she slapped him without cause that he struck her. Defendant presented no evidence, however, that Mrs. Allen's action caused him to fear for his personal safety. Defendant testified, "She slapped me with her right hand. I reacted in a split second." Defendant's sister stated that defendant had told her he slapped Mrs. Allen "on impulse" and "didn't mean to." Where there is no evidence from which a jury could find that defendant reasonably believed himself in need of protection, it would be improper for the court to instruct on justification. See State v. Moses, 17 N.C.App. 115, 193 S.E.2d 288 (1972).
Defendant also excepts to the court's failure to instruct on the law of corroborative evidence. We overrule the assignment of error.
A prior consistent statement is one made by a witness at an earlier time which is consistent with his testimony at trial. It is not admitted as substantive evidence. Rather it is admitted solely for the purpose of affirming the witness' credibility. 1 Stansbury, N.C. Evidence § 52 (Brandis rev.1973); State v. Covington, 290 N.C. 313, 337, 226 S.E.2d 629, 646 (1976). If defendant so requests, he is entitled to an instruction in the jury charge concerning *916 the restricted purpose for which the statement is received, in addition to a direction at the time of its admission. 1 Stansbury, N.C. Evidence § 52 (Brandis rev.1973). See State v. Lee, 248 N.C. 327, 103 S.E.2d 295 (1958); State v. Spain, 3 N.C.App. 266, 164 S.E.2d 486 (1968).
In the present case, the court properly admitted as corroboration a statement previously made by defendant which was consistent with his testimony at trial. Defendant requested a jury instruction on corroborative evidence. The request was denied. Although defendant has grounds for exception, we conclude that in this case, the court's refusal to instruct did not constitute prejudicial error. In fact, by not restricting consideration of his prior consistent statement, the court benefitted defendant.
No error.
ROBERT M. MARTIN and ARNOLD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/608493/ | 995 F.2d 227
Williams (Christopher)v.Moore (Dick)
NO. 92-2868
United States Court of Appeals,Eighth Circuit.
Oct 26, 1992
1
Appeal From: W.D.Mo.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1332747/ | 249 Ga. 504 (1982)
291 S.E.2d 535
ALLSTATE INSURANCE COMPANY et al.
v.
TRAVELERS INSURANCE COMPANY et al. COCHRAN et al.
v.
LEVITZ FURNITURE COMPANY OF THE EASTERN REGION.
38065, 38066.
Supreme Court of Georgia.
Decided May 19, 1982.
Rehearing Denied June 22, 1982.
Dennis, Corry, Webb, Carlock & Williams, Robert C. Semler, Diane Q. House, for appellants.
Oliver B. Dickins, Jr., & Associates, Brian F. Dorsey, for appellees.
SMITH, Justice.
Appellants, Evelyn Cochran and Allstate Insurance Company, obtained a default judgment against Levitz Furniture Company on December 3, 1980. During the next term of court, on January 28, 1981, Levitz filed a motion to open default and an out of time motion for new trial. On the same date, Levitz and Travelers Insurance Company filed a complaint in equity to set aside the default judgment. After hearing, the trial court granted the motion to open *505 default and the motion for new trial, and found in favor of Levitz and Travelers on their complaint in equity. The parties were ordered to proceed to trial on the merits.
In Case No. 38065, Cochran and Allstate appeal from the judgment of the complaint in equity. In Case No. 38066, Cochran and Allstate appeal from the grant of appellees' motion for new trial and motion to open the default. We reverse.
1. Appellees have moved to dismiss both appeals. They argue that the trial court's order opening default and granting the motion for new trial is not a final order and therefore not appealable absent a certificate of immediate review, which appellants did not acquire. Therefore, say appellees, the appeal in Case No. 38066 must be dismissed. Appellees then argue that with the appeal in Case No. 38066 dismissed, the case must be tried on its merits regardless of the outcome of the appeal in Case No. 38065. Thus, the latter appeal would be moot and would also have to be dismissed. We disagree.
The policy of the Appellate Practice Act is against multiple appeals and piecemeal litigation. Executive Jet Sales v. Jet America, 242 Ga. 307 (248 SE2d 676) (1978); Code Ann. § 6-905. Code Ann. § 6-701 (b) states in part: "Where an appeal is taken under any provision of paragraph (a) above, all judgments, rulings or orders rendered in the case which are raised on appeal, and which may affect the proceedings below, shall be reviewed and determined by the appellate court, without regard to the appealability of such judgment, ruling or order standing alone, and without regard to whether the judgment, ruling or order appealed from was final, or was appealable by some other express provision of law contained in paragraph (a) above, or elsewhere."
Appellees do not dispute that the judgment of the complaint in equity is a final judgment and thus appealable pursuant to Code Ann. § 6-701 (a)(1). Both appeals in this case emanate from the same court, involve the same parties, and pertain to the same default judgment. We conclude that appellees' motion to dismiss should be denied.
2. "A complaint in equity may be brought to set aside a judgment for fraud, accident, or mistake, or the acts of the adverse party unmixed with the negligence or fault of the complainant. Code Ann. § 81A-160 (e) (see former Code §§ 37-219, 110-710). The phrase `unmixed with the negligence or fault of the complainant' modifies the words `fraud, accident or mistake' as well as the words `acts of the adverse party.' Marshall v. Livingston, 77 Ga. 21, 28 (1886)." Leventhal v. C & S Nat. Bank, 249 Ga. 390, 391 (291 SE2d 222) (1982).
In this case, appellants, as plaintiffs below, properly served the complaint on Levitz' registered agent for service of process in Georgia. The agent mailed the complaint to the associate general *506 counsel for Levitz in Miami, Florida, Edward Zimmer. Zimmer mailed the complaint to Amercon, an insurance broker. Amercon mailed the complaint to Travelers in Atlanta. The complaint was either lost in the mails and never reached Travelers, or was misplaced by Travelers. In any event, Travelers has no record of having ever received the complaint. Travelers failed to file an answer on Levitz' behalf.
The evidence is undisputed that no one at Levitz made any effort at all to see that an answer was filed. It is therefore clear that the "accident or mistake" was not "unmixed with the negligence or fault of the complainant." The trial court erred in ruling in favor of appellees on their complaint in equity. Aetna Finance Co. v. Pair, 141 Ga. App. 243 (233 SE2d 218) (1977).
3. The trial court erred in opening the default pursuant to Code Ann. § 81A-155 after final judgment was rendered. By its clear terms, Code Ann. § 81A-155 provides for the opening of default before final judgment is rendered. John M. Murray Constr. Co. v. Tuxedo Plumbing &c. Co., 149 Ga. App. 101 (253 SE2d 465) (1979).
4. The trial court erred in granting appellees' motion for new trial. "A motion for new trial must be predicated upon some extrinsic defect which does not appear upon the face of the record or pleadings." Code Ann. § 81A-160 (c). Appellees have shown no extrinsic defect only their own negligence.
Judgment reversed. All the Justices concur, except Jordan, C.J., Marshall and Weltner, JJ., who dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332608/ | 194 S.E.2d 379 (1973)
In the Matter of the ESTATE of Rachel B. EVANS, Deceased.
Ronald E. EVANS, Executor Under the Will of Rachel B. Evans, Deceased,
v.
Richard L. DAILEY, State Tax Commissioner of West Virginia.
No. 13220.
Supreme Court of Appeals of West Virginia.
Submitted January 16, 1973.
Decided February 20, 1973.
*380 Chauncey H. Browning, Jr., Atty. Gen., Jack C. McClung, Asst. Atty. Gen., Charleston, for appellant.
McDougle, Davis, Handlan & Davis, Fred L. Davis, Parkersburg, for appellee.
NEELY, Judge:
This is an appeal by the State Tax Commissioner from an order of the Circuit Court of Ritchie County entered on May 17, 1971, which set aside appellant State Tax Commissioner's deficiency assessment of inheritance tax on the grounds that the deficiency assessment was erroneous.
The case turns upon the proper statutory construction of Chapter 11, Article 11, Section 7, Code of West Virginia, 1931, and the application of that statute to Item V of the will of Rachel B. Evans. Item V of the will provides:
"All the rest, residue and remainder of my property, real, personal and mixed, of whatsoever nature, to which I may be legally or equitably entitled, or over which I may have any power of appointment, I devise, bequeath and appoint to my said husband, Ronald E. Evans, for and during the term of his natural life, without impeachment for waste, with full power to use, dispose of, sell and convey any or all of it as he may desire, the same as I might do if living. After the death of my said husband, or if for any reason his said life estate should sooner terminate by renouncement or otherwise, I devise, bequeath and appoint the aforesaid property to Lawrence Leslie Evans and Walter (Pat) Donald Evans, two nephews of my said husband, or to either of them as shall survive me, their heirs, executors, administrators and assigns, as tenants in common. If either of said nephews shall predecease me, leaving issue, I direct that the share heretofore given to the nephew of my said husband shall not lapse but shall be paid and transferred to his issue, their heirs and assigns forever."
Section 11-11-7 the Code, provides:
"Whenever the transfer of any property shall be subject to tax hereunder and only a life estate, or an interest for a term of years, or a contingent interest to be transferred to one person and the remainder or reversionary interest to another, the tax commissioner on the application of any person in interest, or upon his own motion, may, after due notice to the persons interested, apportion such taxes among such persons and assess to each of them his proper share of such taxes, and shall make his certificates accordingly, which shall be forwarded and disposed of in the same manner as other certificates by him herein provided for. The portion of any such taxes apportioned to any person entitled in remainder or reversion shall be payable at once, and such person shall be required to pay them in the same manner, and within the same time, as if his interest had vested in possession."
The Tax Commissioner contended that two estates were created, a life estate in Ronald E. Evans and a remainder in Lawrence Evans and Walter Evans. The appellees contended that the whole estate should be taxed to the life tenant because more than a life estate was created. The question in this case is whether "only a life estate" passed to the husband, Ronald E. Evans, or whether the husband, Ronald E. Evans, received more than a life estate, which would remove the transfer from the operation of Section 11-11-7 of the Code.
The attempt to tax the bequest as two estates under Section 11-11-7 of the Code is contested because the life tenant, Ronald E. Evans, as husband of decedent, is entitled to the three percent rate of inheritance tax while the remaindermen are taxed at the rate of ten percent because they are without blood relation to the decedent. Chapter 11, Article 11, Section 2 of the Code of West Virginia, 1931, as amended. The Tax Commissioner determined that two estates were created by Item V of the *381 will, and accordingly issued a deficiency assessment of $3,498.65.
The Circuit Court correctly concluded that the case depends upon the proper interpretation of the words "only a life estate" in Section 11-11-7 of the Code. In order to derive the legal effect of the word "only" a purely linquistic analysis would not be instructive; however, an analysis of the economic consequences to the respective parties of differing tax treatment leads to but one reasonable interpretation of the word "only".
It is difficult to characterize the estate devised and bequeathed by Rachel B. Evans in terms of traditional property law. Before the passage of Chapter 36, Article 1, Section 16 of the Code of West Virginia, 1931, as amended, a bequest or devise similar to that made by Rachel B. Evans would have been enlarged from a life estate to a fee simple estate under common law. Morgan v. Morgan, 60 W.Va. 327, 55 S.E. 389, (1906). However, Section 36-1-16 abrogated the common law by providing:
"If any interest in or claim to real or personal property be given by sale or gift inter vivos or by will to one, with a limitation over either by way of remainder or of executory devise or any other limitation, and by the same conveyance or will there be conferred, expressly or by implication, a power upon the first taker in his lifetime or by will to use or dispose absolutely of such property, the limitation over shall not fail or be defeated except to the extent that the first taker shall have lawfully exercised such power of disposal. The proceeds of a disposal under such power shall be held subject to the same limitations and the same power of use or disposal as the original property, unless a contrary intent shall appear from the conveyance or will: Provided, however, that a trust deed or mortgage executed by such first taker shall not be construed to be an absolute disposal of the estate thereby conveyed unless there be a sale thereunder, but shall be effective only to the extent of the lien or encumbrance created by such trust deed or mortgage."
Consequently, a life tenant with unlimited powers of use and disposal takes something less than a fee simple.
The life tenant cannot defeat the remaindermen's right to the balance of the estate at the termination of the life tenancy; however, the life tenant, through waste or bona fide sale, can defeat the remaindermen's enjoyment of the right by converting all of the corpus during the life tenancy. Flesher v. United States, 238 F. Supp. 119 (N.D., W.Va.1965).
The estate bequeathed and devised by Rachel B. Evans was certainly more than a traditional life estate due to the preponderance of fee simple characteristics. In this case, the remaindermen received an estate which in practical terms may be little more than an illusion because they take only a vested remainder subject to divestment at the pleasure of the life tenant. 4A Thompson on Real Property (1961 Replacement) 470.
After initially determining that Code 11-11-7 controlled, the Tax Commissioner applied the statutory computation method of Chapter 43, Article 2, Sections 1 through 5 of the Code of West Virginia, 1931, as amended, and evaluated the life estate with power of disposal in Ronald E. Evans at $16,232.29 and evaluated the remainder in the two nephews at $58,730.21.
Obviously, this assessment bears no relationship to the actual fair market value of the two estates created under the will. In point of fact, the life tenant could sell his entire interest in the life tenancyas opposed to the corpus of the estateat a price approaching the value of the corpus itself. Conversely, the remaindermen could receive almost nothing on the open *382 market for their interest, yet under the statutory computation method more than three and one-half times the value of the life estate is attributable to the remaindermen as their taxable interest.
If this Court were to accept the Tax Commissioner's expansive definition of a life estate, the economic consequences of Chapter 11, Article 11, Section 12 and Chapter 11, Article 11, Section 7 of the Code of West Virginia, 1931, read in pari materia, would be that an impecunious remainderman in the same circumstances as the remaindermen in this case would be immediately obligated to the executor of an estate for payment of taxes on an interest in property which, at the time of the assessment, had no fair market value. He would not be able to sell or mortgage his interest to pay the taxes, and an injustice not contemplated or sanctioned by the legislature would be perpetrated.
Section 11-11-12 of the Code provides:
"Every executor, administrator, trustee, guardian, committee or other fiduciary having charge of an estate, any part of which is subject to such tax, and every person to whom property is transferred which is subject to such tax, but is not in charge of any such fiduciary, shall pay the same upon the market value of all the property subject to tax, whether there are or are not devises or bequests of successive interests in the same property, and whether such successive interests, if any, are defeasible or indefeasible, absolute or contingent. Such payment shall be made out of such estate in the same manner as other debts may be paid. Any such fiduciary may sell personal property for that purpose when necessary, and the circuit court may authorize him to sell real estate for the payment thereof in the same manner as it may authorize the sale of real estate for the payment of debts. * * *."
However, Section 11-11-7 of the Code provides:
"* * * The portion of any such taxes apportioned to any person entitled in remainder or reversion shall be payable at once, and such person shall be required to pay them in the same manner, and within the same time, as if his interest had vested in possession."
Inheritance tax is assessed upon the right or privilege of acquiring property. Central Trust Company v. State Tax Commissioner, 116 W.Va. 37, 178 S.E. 520 (1935). Although Ronald E. Evans could not dispose of the property by will, he had the unconditional right to dispose of all of it during his lifetime in any way in which he saw fit. Consequently, he had the right to acquire all of the property, and he is the person, from an economic point of view, who is able to bear the weight of taxation.
The rule is well established in this jurisdiction and elsewhere that tax levying statutes are, in case of doubt, to be construed strongly against the government and in favor of the taxpayer. In re Glessner's Estate, 146 W.Va. 282, 118 S.E.2d 873 (1961). Therefore, analyzing the economic consequences to the respective parties, and considering the rule which requires that tax statutes be construed strongly in favor of the taxpayer, the Court must conclude that the intention of the legislature in its use of the word "only" in Section 11-11-7 of the Code to modify the compound noun "life estate," was that Section 11-11-7 should apply exclusively to life estates with implied prohibitions by operation of law against waste and sale of the corpus. When there is a life estate, there is also a definitely ascertainable vested remainder, which if necessary, the remainderman can sell or mortgage to pay the taxes.
This case is limited in terms of precedent exclusively to tax questions arising under Section 11-11-7 of the Code and does not in any way interpret or change the law of real property or any other tax law of this State. Accordingly the judgment *383 of the Circuit Court of Ritchie County is affirmed.
Affirmed.
HADEN, J., did not participate in the deliberation on this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332631/ | 127 Ga. App. 590 (1972)
194 S.E.2d 284
DELTA EQUITIES, INC.
v.
BERRY.
47594.
Court of Appeals of Georgia.
Argued October 4, 1972.
Decided November 20, 1972.
Dunaway, Shelfer, Haas & Newberry, Hugh F. Newberry, Ben Swain McElmurray, Jr., for appellant.
Burnside, Dye & Miller, Thomas R. Burnside, Jr., A. Montague Miller, for appellee.
QUILLIAN, Judge.
The plaintiff filed a claim against the defendant to foreclose a laborer's lien. The defendant answered the petition but failed to respond to interrogatories within the time provided by law. The plaintiff then filed a motion regarding defendant's failure to respond to interrogatories, praying that all of the penalties *591 provided by law be assessed against the defendant and specifically praying that its answer be stricken and that the case be declared in default or, in the alternative, that a complete response to said interrogatories be required of defendant and that plaintiff be granted reasonable attorney's fees in prosecuting his motion. Thereafter, on the date set in the rule signed by the court in connection with the aforesaid order, the court ordered the defendant to serve upon the plaintiff answers to his interrogatories on or before April 3, 1972. The order further provided that if defendant should fail to comply with that order, the court would rule upon plaintiff's motion seeking to assess penalties for failure to answer interrogatories.
The defendant on April 3, 1972, filed answers to all but seven of the interrogatories. On that same day with no additional notice the court entered an order striking and dismissing the defendant's answer. The defendant appealed and the case is here for review. Held:
In Maxey v. Covington, 126 Ga. App. 197, 199 (190 SE2d 448), a case very similar to the case sub judice, this court held: "Code Ann. § 81A-137 (b) provides a range of sanctions which the court may impose for a party's failure to comply with an order to make discovery under subsection (a). Section 81A-137 (d) authorizes a dismissal or default judgment for wilful failure to be deposed or to answer interrogatories. Here the plaintiff had failed to answer within the proper time and had filed no objections to the interrogatories. The court had before it a motion cast in such terms that it could have either ordered the answers to be made or, proceeding under subsection (d), held a hearing on the question of wilfulness and dismissed the action if it were found. The court chose the former course but also added a self-executing order of dismissal in the event the answers were not filed within the time provided. Federal case law and the well-known commentators on Federal procedure clearly state that the drastic sanctions of dismissal and default cannot *592 be invoked under Rule 37 except in the most flagrant cases where the failure is wilful, in bad faith or in conscious disregard of an order. See the commentary and cited cases in 8 Wright & Miller, Federal Practice and Procedure: Civil § 2284 and 4A Moore's Federal Practice §§ 37.02 (2) and 37.05. This court, construing subsection (d), has held the same way. Smith v. Mullinax, 122 Ga. App. 833 (178 SE2d 909). The Supreme Court has cautioned against the harsh application of this rule. Milholland v. Oglesby, 223 Ga. 230 (154 SE2d 194). It is obvious that such a determination cannot be made in a prospective, self-executing order. A court cannot assume that a future failure will be unjustifiable. It must examine the circumstances retrospectively. This means affording an opportunity to explain the circumstances following the failure; which means, in turn, an express motion and notice to the party concerned."
It is clear from the holding in the Maxey case that where the trial judge elects not to have a hearing on wilfulness but decides to order that answers to the interrogatories be made he must afford an opportunity to explain the circumstances surrounding the failure to comply with his order. This would include a motion and notice to the party involved.
While the order in the Maxey case was self-executing, the same principle would apply here because the order of dismissal of the answer was entered without notice to the defendant.
Judgment reversed. Hall, P. J., and Pannell, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332628/ | 194 S.E.2d 560 (1973)
17 N.C. App. 451
Ray HAMM and Roe Church
v.
TEXACO INCORPORATED et al.
No. 7323DC153.
Court of Appeals of North Carolina.
February 28, 1973.
*561 Arnold L. Young, Sparta, for plaintiff-appellants.
Hayes & Hayes by Kyle Hayes and Douglas L. Winslow, North Wilkesboro, for defendant-appellees.
BROCK, Judge.
Plaintiffs assign as error the trial judge's entry of a judgment, pursuant to G.S. § 1A-1, Rule 41(b), dismissing the plaintiffs' action. This assignment of error presents the question whether there was sufficient evidence, when viewed in the light most favorable to the plaintiffs, to establish the existence of a contract between the plaintiffs and the defendants.
In Horton v. Refining Company, 255 N. C. 675, 122 S.E.2d 716 (1961), a case factually similar to the one at bar, Chief Justice Winborne stated:
"In Williamson v. Miller, 231 N.C. 722, 58 S.E.2d 743, 747, this Court said: `"To be binding, the terms of a contract must be definite and certain or capable of being made so." (Citations omitted).'
In Elks v. North State Ins. Co., supra [159 N.C. 619, 75 S.E. 810], this Court said: `It is elementary that it is necessary that the minds of the parties meet upon a definite proposition. "There is *562 no contract unless the parties thereto assent, and they must assent to the same thing, in the same sense. A contract requires the assent of the parties to an agreement, and this agreement must be obligatory, and, as we have seen, the obligation must, in general, be mutual." 1 Pars.Cont., 475.'"
In the case at bar, the evidence presented by the plaintiffs tends to show negotiations by the parties which were intended to culminate in a "five-year contract" in written form.
In Elks v. North State Ins. Co., supra, it is said that where the minds of the parties "meet upon a proposition which is sufficiently definite to be enforced, the contract is complete, although it is in the contemplation of the parties that it shall be reduced to writing as a memorial or evidence of the contract; but if it appears that the parties are merely negotiating to see if they can agree upon terms, and that the writing is to be the contract, then there is no contract until the writing is executed." Here, there is no evidence which would tend to show that the parties' minds met upon terms sufficiently definite to be enforced. Rather, the evidence tends to show that there was to be a written agreement executed by both parties and that there was to be no contract until the writing was executed.
The judgment entered in this case recites that the cause was heard before the judge and jury. The judgment also recites that defendant moved for dismissal under Rule 41. G.S. § 1A-1, Rule 41 (b) is applicable where a cause is tried before the judge without a jury; a motion to dismiss under this rule is not properly available in cases being tried by jury. The proper motion would have been a motion for directed verdict under Rule 50(a). General Rules of Practice for the Superior and District Courts adopted by the Supreme Court on 14 May 1970, pursuant to G.S. § 7A-34, provide in Rule 6 that "(a)ll motions . . . shall state the rule number or numbers under which the movant is proceeding." In this case movants stated that they were proceeding under Rule 41. Obviously movants were not entitled to relief under Rule 41 because the case was being tried before a jury. However, plaintiffs made no objection to the improper motion, and they may not raise the question for the first time on appeal. We, therefore, treat the judgment of dismissal in the present case as having been entered pursuant to a motion for directed verdict under Rule 50(a). See Pergerson v. Williams, 9 N.C.App. 512, 176 S.E.2d 885.
Affirmed.
MORRIS and HEDRICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332638/ | 194 S.E.2d 58 (1973)
17 N.C. App. 322
Randy Leon PRIDDY
v.
COOK'S UNITED DEPARTMENT STORE et al.
No. 7321SC5.
Court of Appeals of North Carolina.
January 31, 1973.
*59 Wilson & Morrow, by John F. Morrow, Winston-Salem, for plaintiff appellant.
Womble, Carlyle, Sandridge & Rice, by Allan R. Gitter, Winston-Salem, for defendant appellees.
GRAHAM, Judge.
The complaint and plaintiff's affidavit affirmatively show that the claims for assault and false imprisonment arose more than one year before the suit was instituted. These claims are therefore barred by the one-year statute of limitation applicable to both claims. G.S. § 1-54(3).
The only question presented on appeal is whether the trial judge correctly concluded that no genuine issue of fact exists as to plaintiff's claim for malicious prosecution. We hold that he did and affirm his order granting defendants' motion for summary judgment.
Want of probable cause is an essential element of malicious prosecution. 5 Strong, N.C.Index 2d, Malicious Prosecution, § 1. The affidavit offered by defendants, and also plaintiff's admission in his own affidavit, established that plaintiff was convicted in the District Court of Forsyth County under the warrant that is the basis of his claim that he was prosecuted maliciously. This conviction, in the absence of a showing that it was procured by fraud or other unfair means, conclusively establishes the existence of probable cause, even though plaintiff was afterwards acquitted of the charge in superior court. Moore v. Winfield, 207 N.C. 767, 178 S.E. 605. See also Overton v. Combs, 182 N.C. 4, 108 S.E. 357; Smith v. Thomas, 149 N. C. 100, 62 S.E. 772; Price v. Stanley, 128 N.C. 38, 38 S.E. 33; Griff is v. Sellars, 19 N.C. 492.
In Moore v. Winfield, supra, the Supreme Court pointed out that in some states a conviction is only prima facie evidence of probable cause if a new trial is granted or the judgment is reversed upon appeal; while in other states, including North Carolina, the conviction remains conclusive evidence unless shown to have been procured by artifice or fraud. The court cited the case of Haddad v. Chesapeake and O. Ry. Co., 77 W.Va. 710, 88 S.E. 1038, for the following proposition: "A judgment of conviction for larceny, although reversed on writ of error, and the accused discharged from further prosecution on remand of the case, is conclusive evidence of probable cause for believing the accused guilty of the offense charged to him, unless the conviction was procured by fraud; and on plaintiff in an action for malicious prosecution devolves the duty of averring and by convincing proof showing such fraud or other undue means." (Emphasis added.) Moore v. Winfield, supra, 207 at 770, 178 S.E. at 606-607.
Here, there are no allegations in plaintiff's complaint nor averments in his affidavit tending to show that he is prepared to offer evidence at trial that his conviction in district court was obtained by fraud or other unfair means.
Affirmed.
CAMPBELL and BROCK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332624/ | 521 S.E.2d 1 (1999)
237 Ga. App. 733
ROLLESTON
v.
CHERRY et al. (Four Cases).
Nos. A99A0195, A99A0549, A99A0789, A99A0823.
Court of Appeals of Georgia.
April 12, 1999.
Reconsideration Denied April 23, 1999.
Certiorari Denied September 17, 1999.
*2 Moreton Rolleston, Jr., pro se.
Shelby A. Outlaw, Decatur, for appellees.
BLACKBURN, Presiding Judge.
In Case Nos. A99A0195 and A99A0549 Moreton Rolleston, Jr., individually, Moreton Rolleston, Jr., Living Trust, and Moreton Rolleston, Jr., as trustee and/or beneficiary (referred to collectively as the Trust) appeals the trial court's order denying its motion for summary judgment and granting the motion for summary judgment of the Estate of Rebecca Wight Cherry Sims and John Randolph Cherry (referred to collectively as the Estate). The Trust further contends that the trial court's dismissal of its first notice of appeal whereby it attempted to appeal the denial of a previous motion for summary judgment was erroneous. The Trust also appeals the trial court's denial of its motion to set aside the judgment. In Case No. A99A0789, the Trust appeals the trial court's order holding Rolleston in contempt of court and finding that a lease from the Trust violated the interlocutory injunction. In Case No. A99A0823, the Trust appeals the trial court's order which required the posting of a $6 million supersedeas bond.
These combined cases are a continuation of litigation by Rolleston and the Trust against the Estate. In Rolleston v. Cherry, 226 Ga. App. 750, 487 S.E.2d 354 (1997), this Court affirmed $5.2 million in judgments against Rolleston for professional negligence, breach of fiduciary duty, fraud, and contribution relating to his representation of Rebecca Wight Cherry Sims. After the verdict, but before the judgment was entered, Rolleston recorded deeds in Fulton County and Glynn County transferring title to all of his property from his name into the name of the Moreton Rolleston, Jr. Living Trust. He also transferred *3 all of his personal property, including cash assets into the Trust with the exception of his interest in a $500,000 certificate of deposit in German Deutsch marks, which was put into the Trust on a later date. Thereafter, the Estate filed the present case seeking to set aside the transfers of Rolleston's property into the Trust as fraudulent. The Estate also sought and received an interlocutory injunction prohibiting any transfer of real or personal property from the Trust without approval of the court during the pendency of the underlying suit.[1]
Thereafter, the Trust attempted to directly appeal the trial court's denial of its first motion for summary judgment; but as it was an appeal from an interlocutory order, the trial court dismissed Rolleston's notice of appeal.[2] Subsequently, the trial court entered an order granting the Estate's motion for summary judgment and denying the Trust's third renewed motion for summary judgment. By such order, the trial court reserved the Estate's claims for permanent injunction, damages, and attorney fees for trial. These appeals arise out of the trial court's order on the parties' motions for summary judgment.
Case Nos. A99A0195 and A99A0549
1. The Trust contends that the trial court erred in granting the Estate's motion for summary judgment in that it misapplied OCGA § 18-2-22 and it failed to consider certain evidence.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga.App. 592, 593, 472 S.E.2d 140 (1996).
Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).
OCGA § 18-2-22 provides:
The following acts by debtors shall be fraudulent in law against creditors and others and as to them shall be null and void: (1) Every assignment or transfer by a debtor, insolvent at the time, of real or personal property ... to any person ... where any trust or benefit is reserved to the assignor or any person for him; (2) Every conveyance of real or personal estate... of any description had or made with intention to delay or defraud creditors, where such intention is known to the taking party; ... and (3) Every voluntary deed or conveyance, not for a valuable consideration, made by a debtor who is insolvent at the time of the conveyance.
The Estate need not establish a claim under each division of OCGA § 18-2-22, as proof of the elements in any division requires that the conveyances to the Trust be declared null and void. See Dearing v. A.R. III, Inc., 266 Ga. 301, 303(2), 466 S.E.2d 565 (1996).
(a) Rolleston argues that OCGA § 18-2-22 does not apply to the transfers he made to the Trust because, at the time of the transfers, he was not indebted to the Estate. However, this argument overlooks the precise statutory language and a long line of case authority. By its specific terms, the statute applies to "creditors and others."
These "others" include plaintiffs with claims against debtors "liable as tortfeasors, or otherwise ... for an unascertained damage to person or property, so far as fraudulent conveyances are concerned." Westmoreland v. Powell, 59 Ga. 256, 258 [(1877) ]. In 1895, the legislature put back in the statute the words declaring certain acts to be fraudulent in law against creditors "and others "... using as its source Westmoreland.
Kesler v. Veal, 182 Ga.App. 444, 449, 356 S.E.2d 254, aff'd. in part and rev'd in part, 257 Ga. 677, 362 S.E.2d 214 (1987). Therefore, *4 OCGA § 18-2-22 is applicable to Rolleston and the transfers he made to the Trust. See also Mercantile Nat. Bank v. Aldridge, 233 Ga. 318, 319-320, 210 S.E.2d 791 (1974).
(b) Rolleston argues that OCGA § 18-2-22(3) does not apply to the transfers he made to the Trust because he was not insolvent at the time of the transfers. However, insolvency of the debtor is determined by ascertaining whether he retained sufficient assets to satisfy his obligations after the transfers. See Chambers v. C & S Nat. Bank, 242 Ga. 498, 501-502, 249 S.E.2d 214 (1978). Rolleston was aware of the pendency of the Estate's claims against him by which it sought millions of dollars in damages, and he did not retain sufficient assets to satisfy any award against him. The evidence to which the Trust refers merely establishes the amount of assets transferred into the Trust. The amount of assets transferred into the Trust is not relevant in determining whether the debtor was solvent at the time of the transfer. Id. Furthermore, proof of Rolleston's solvency is unnecessary to establish the Estate's claim pursuant to OCGA § 18-2-22(2). Mercantile Nat. Bank, supra.
Because the trial court did not err in granting the Estate's motion for summary judgment, it also did not err in denying the Trust's motions for summary judgment.
2. The Trust contends that the trial court erred in failing to grant its first motion for summary judgment, arguing that the Estate failed to comply with OCGA § 9-11-56(e). By this enumeration, the Trust asserts that the Estate failed to respond to its initial motion for summary judgment with any evidence in opposition to such motion. The Trust further asserts that its motion for summary judgment established a prima facie case, and that, therefore, summary judgment in its favor was demanded pursuant to OCGA § 9-11-56(e).
The Trust's argument rests on its assertion that it had presented a prima facie case entitling it to summary judgment. However, as is shown in our discussion in Division 1, the Trust was not entitled to summary judgment as a matter of law, and therefore, the trial court did not err in denying its motions.
3. The Trust contends that the trial court erred in dismissing its initial notice of appeal of the trial court's order denying its first motion for summary judgment. However, as a direct appeal is not available from the denial of a motion for summary judgment, see OCGA § 5-6-34, the trial court did not err in dismissing the Trust's attempt to pursue such a direct appeal. See Attwell v. Lane Co., 182 Ga.App. 813, 814(1), 357 S.E.2d 142 (1987) (trial court empowered to dismiss appeal where judgment not final).
4. The Trust enumerates as error the trial court's order denying its motion to set aside the judgment and motion to dismiss the amended complaint. By this enumeration, the Trust has asserted more than one error.
It is well settled that when an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned.
(Citation and punctuation omitted.) Stubbs v. Harmon, 226 Ga.App. 631, 633(2), 487 S.E.2d 91 (1997). We will review the first error asserted.
The record makes it clear that the Trust filed a motion to set aside the judgment after the trial court denied its first motion for summary judgment. However, as the Trust's motion was not a proper motion, because there was no judgment to set aside, the trial court's denial of such motion was also not erroneous. Therefore, the Trust's enumeration is without merit.
Case No. A99A0789
5. Rolleston contends that the trial court erred in finding him and the Trust in contempt of the temporary injunction against alienation of assets by leasing real estate out of the Trust to a limited partnership.
"Whether a contempt of court has been committed in the violation of an injunctive order, and how it shall be treated, are questions for the discretion and judgment of the court that issued the order, and its *5 discretion will not be interfered with by this court unless there is an abuse of discretion. If there be any substantial evidence from which the judge could have concluded that his order had been violated, his finding to that effect cannot be disturbed by this court, insofar as the sufficiency of the evidence is concerned."
Gen. Teamsters Local Union No. 528 v. Allied Foods, 228 Ga. 479, 483-484, 186 S.E.2d 527 (1971).
The temporary injunction provides that Rolleston and the Trust are "enjoined from transferring or conveying any real or personal property without notice to and approval by this Court. This injunction shall remain in full force and effect until further order of this Court." The interlocutory injunction was entered on July 7, 1995. Before the interlocutory injunction was entered, Rolleston created a limited partnership, the MRJR Limited Partnership (the Partnership), of which he is the sole general partner and the Trust is the sole limited partner. The record contains a lease for 100 years from the Trust to the Partnership of substantial real and personal property described in exhibits attached to the lease. The lease was filed with the Fulton County Superior Court on August 13, 1998.
The Trust argues that because the lease did not transfer or convey title, it was not a transfer of the property as proscribed by the interlocutory injunction. However, "a lease of lands for five years or more creates an estate for years and passes as realty in this State. Such an estate may be bought and sold as any other estate, subject to the terms and conditions of the lease. OCGA §§ 44-6-100; 44-6-102; 44-7-1." (Punctuation omitted.) Paces Partnership v. Grant, 212 Ga.App. 621, 624, 442 S.E.2d 826 (1994). This type of transfer clearly violated the interlocutory injunction. "[I]f [one] is in doubt as to what acts he may or may not do under the order, he should request a modification or construction of its terms. If he proceeds under his own construction, he does so at his own peril." Gen. Teamsters, supra at 481, 186 S.E.2d 527. Additionally, we note that "[i]t is the spirit more than the letter of the injunction to which obedience is required." (Punctuation omitted.) Rapaport v. Buckhead Coach, 234 Ga.App. 363, 365(2), 506 S.E.2d 690 (1998).
The trial court determined that no economic purpose appeared on the face of the lease because, pursuant to its terms, the Partnership was required to pay the Trust 50 percent of the net income received in the preceding year. Yet, prior to the lease, the Trust received 100 percent of the net income. The trial court further determined that the lease was not an arms-length transaction because Rolleston was the Trustee of the Trust and also the general partner of the Partnership. Additionally, Rolleston canceled the lease a few days prior to the hearing on the Estate's motion for contempt. Therefore, the trial court did not abuse its discretion in determining that the temporary injunction was violated by the lease in question.
6. Rolleston contends that the trial court erred in holding him in contempt of court, in sentencing him to jail, and ordering him to pay a fine of $500. Rolleston's enumeration is not supported with argument or citation to authority as required by this Court's Rule 27(c)(2), and is, therefore, deemed abandoned.
In any event, the trial court found that "Rolleston acted with full knowledge that he was violating [its] order and [was] in willful contempt." The trial court sentenced Rolleston "to serve ten (10) days in the common jail of Fulton County," but allowed him to purge the contempt by payment of a fine of $500. The trial court's decision in fining Rolleston was within its discretion, and we find no abuse. Therefore, Rolleston's enumeration is without merit.
7. The Trust contends that attorney fees and costs are not recoverable in an action for contempt and that the trial court erred in awarding them to the Estate. The Supreme Court of Georgia has held that if a prohibition against attorney fees in contempt proceedings exists, it exists because of "constitutional and statutory limits put on the power of the courts to punish for criminal contempt" and is therefore limited to criminal contempt actions. Minor v. Minor, 257 Ga. 706, 709(2), 362 S.E.2d 208 (1987). See *6 also 1983 Ga. Const., Art. I, Sec. II, Par. IV.; OCGA § 15-6-8.
"The distinction between criminal and civil contempt is that criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order." (Punctuation omitted.) Rapaport, supra at 364(1), 506 S.E.2d 690. The present contempt motion is one for criminal contempt as the trial court's order punishes Rolleston for a previous violation of the temporary injunction. In Rapaport, we held that "[a]ttorney fees are not included in the permissible sanctions, and the Supreme Court of Georgia has held that they are not awardable in conjunction with a citation for criminal contempt." Id. at 365(3), 506 S.E.2d 690.
The Estate argues that, because the trial court specifically awarded attorney fees pursuant OCGA § 13-6-11 and not as punishment for the contempt, it did not err in making the award. The Estate distinguishes the cases cited by Rolleston by pointing out that therein, the attorney fees were awarded as either the sole punishment or as further punishment for the contempt rather than upon a separate basis. See Gen. Teamsters, supra (where defendant fined for violation of restraining order and required to pay attorney fees, Court found no authority for award of attorney fees); Ragsdale v. Bryan, 235 Ga. 58, 218 S.E.2d 809 (1975) ("punishment assessed in the form of attorney fees ... was improper"); Rapaport, supra (award of attorney fees reversed where only punishment assessed for finding of criminal contempt).
The Estate's argument fails to address our specific holding in Rapaport, wherein we found that attorney fees are not awardable in conjunction with a citation for criminal contempt. Id. at 365, 506 S.E.2d 690. Therein, the Court further distinguished civil contempt by noting that in that context, attorney fees were awardable where some other express authority exists. Id. at 365, n. 2, 506 S.E.2d 690. Therefore, upon the authority of Rapaport we must reverse the trial court's award of attorney fees on the Estate's motion for contempt.
Case No. A99A0823
8. The Trust contends that the trial court erred in requiring a $6 million supersedeas bond.[3] The Trust argues that OCGA § 5-3-24 precludes the imposition of a supersedeas bond in the present case. We do not agree.
OCGA § 5-3-24 provides that
[e]xecutors, administrators, and other trustees, when defending an action as such or defending solely the title of the estate, may enter an appeal without paying costs and giving bond and security as required by Code Section 5-3-22; but, if a judgment should be obtained against such executor, administrator, or other trustee and not the assets of the estate, he must pay costs and give security as in other cases.
However, such Code section governs appeals to superior courts from probate courts, not appeals from superior court to the Court of Appeals. OCGA § 5-6-46 governs the grant of supersedeas bonds on appeals from superior court to the Court of Appeals. This Code section provides, in pertinent part, that "upon motion by the appellee ... the trial court shall require that supersedeas bond be given with such surety and in such amount as the court may require." Therefore, pursuant to OCGA § 5-6-46, the trial court did not err in granting the Estate's motion for supersedeas bond.
In summary, in Case Nos. A99A0195 and A99A0549 the trial court's grant of summary judgment to the Estate and its denial of summary judgment to the Trust is affirmed. In Case No. A99A0789, the trial court's finding of contempt and punishment therefor is affirmed; however, its assessment of attorney fees is reversed. In Case No. A99A0823, the trial court's requirement of a $6 million supersedeas bond is affirmed.
*7 Judgment in Case Nos. A99A0195, A99A0549, and A99A0823 affirmed, judgment in Case No. A99A0789 affirmed in part and reversed in part.
BARNES, J., and Senior Appellate Judge HAROLD R. BANKE concur.
NOTES
[1] Upon Rolleston's appeal from the interlocutory injunction, the Supreme Court of Georgia affirmed without opinion. See Rolleston v. Cherry, 266 Ga. XXV, 466 S.E.2d 866 (1996).
[2] The Trust then attempted to directly appeal the trial court's order dismissing its appeal. See Rolleston v. Cherry, 233 Ga.App. 295, 504 S.E.2d 504 (1998) where this Court dismissed the Trust's appeal.
[3] This issue was previously raised by the Trust in a motion before this Court. On September 17, 1998, this Court entered an order denying the Trust's motion to reverse the trial court's imposition of a supersedeas bond. Such order is hereby vacated and this opinion substituted in its place. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332618/ | 521 S.E.2d 19 (1999)
239 Ga. App. 106
BEAN
v.
The STATE.
No. A99A1011.
Court of Appeals of Georgia.
June 30, 1999.
Reconsideration Denied July 14, 1999.
*20 William A. Adams, Jr., Thomaston, for appellant.
William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.
JOHNSON, Chief Judge.
This appeal from convictions of child molestation and furnishing alcohol to a minor challenges the sufficiency of the state's notice of its intent to introduce similar transaction *21 evidence, the court's rulings on the scope of cross-examination of state witnesses, and the jury charges on similar transactions and child molestation. We find no reversible error by the trial court and therefore affirm the convictions.
Charles Bean was indicted for child molestation by masturbating in the presence of the victim, sodomy by placing his mouth on the victim's penis, aggravated child molestation also for placing his mouth on the victim's penis, interference with child custody and furnishing alcohol to a minor. Bean denied the charges, and the case was set for a jury trial. Before trial, the court dismissed the charge of interfering with child custody.
The case proceeded to trial on the remaining charges. The victim testified that when he was 11, Bean touched his "private parts." He further testified that when he was 15, Bean gave him beer, played games of "strip pool" with him during which the loser of each game had to remove his clothes, sat naked with him in a hot tub, showed him a pornographic movie, fondled the victim's penis, performed oral sex on him and masturbated in front of him.
The state presented two similar transaction witnesses. The first witness testified that when he was 21, Bean played a game of "strip pool" with him, sat nude with him in Bean's hot tub, showed him his penis, and asked if the witness wanted to watch a pornographic movie and masturbate. The other witness testified that when he was 13, Bean asked him to play "strip pool" and twice touched his penis.
Bean presented witnesses who testified about his good character and reputation for honesty. Bean then testified, denying the allegations of the victim and the similar transaction witnesses regarding his sexual conduct with them. He further claimed that he did not provide alcohol to the victim.
The state then introduced a rebuttal witness who testified that when he was 16, he spent the night at Bean's house. Bean insisted that the teenager sleep in the same bed with Bean. During the night Bean touched the teenager's penis and placed the teenager's hand on Bean's penis.
The jury returned its verdict, finding Bean guilty of child molestation and of furnishing alcohol to the victim, but not guilty of the remaining charges. The court sentenced Bean to serve ten years in prison followed by ten years on probation for child molestation, with a concurrent sentence of twelve months imprisonment for furnishing alcohol to a minor. Bean appeals from his convictions.
1. Bean argues the court erred in allowing the victim to testify that Bean touched his penis when he was 11 because the state had not given Bean notice, as required by Uniform Superior Court Rules 31.1 and 31.3, of its intention to introduce this similar transaction evidence.[1] The Supreme Court has ruled that USCR 31.1 and 31.3 do not apply to instances of prior difficulties between a defendant and a victim. Wall v. State, 269 Ga. 506, 507-509(2), 500 S.E.2d 904 (1998). Bean's argument is therefore without merit. See Smith v. State, 270 Ga. 123, 124(2), 508 S.E.2d 173 (1998).
Moreover, it is apparent from the record that Bean was not surprised by the victim's testimony because Bean filed a motion in limine to exclude testimony by the victim that Bean had molested him several years before the molestation charged in this case. Absent harm, Bean has shown no reversible error in the admission of the testimony. See Martin v. State, 219 Ga.App. 277, 280(2)(b), 464 S.E.2d 872 (1995).
2. Bean complains that the court should not have allowed the two similar transaction witnesses to testify because the state failed to give him proper notice of its intention to introduce such testimony.[2] The complaint is without merit.
*22 The purpose of requiring the state to give notice of its intention to introduce evidence of similar transactions is to provide the defendant an opportunity to raise questions of the admissibility of such evidence before trial. Davidson v. State, 232 Ga.App. 250, 251(1), 501 S.E.2d 510 (1998); Tenant v. State, 229 Ga.App. 20, 22(a), 492 S.E.2d 909 (1997) (physical precedent). In the instant case, the purpose of the notice requirement was fulfilled because Bean had sufficient notice and opportunity to raise his questions regarding the admissibility of the similar transaction evidence before trial.
The state gave Bean written notice more than ten days before trial of its intention to present evidence from the first similar transaction witness regarding Bean's solicitation of mutual masturbation in September 1996 and from the second witness regarding incidents of child molestation by Bean from 1979 through 1982. Bean then filed a motion in limine regarding the similar transaction testimony. In his motion, Bean expressly referred to a law enforcement investigator's written summaries of interviews he had conducted with both witnesses. Bean stated in his motion in limine that the first witness told the investigator that Bean had suggested that they watch pornographic tapes and masturbate, and that Bean had shown him his penis. Bean further stated in his motion in limine that the second witness claimed that when he was thirteen, Bean, amongst other things, had touched his penis two or three times. Thereafter, at the similar transaction hearing, the prosecutor made proffers of the witnesses' expected testimony that were almost identical to Bean's motion in limine summaries of the statements of the witnesses.
As evidenced by his motion in limine, Bean was fully aware of the details of the similar transaction witnesses' allegations, he had an opportunity to challenge the admissibility of their testimony before trial, and he was not surprised or unfairly prejudiced by the testimony at trial. See Parrish v. State, 237 Ga.App. 274, 279-280(4), 514 S.E.2d 458 (1999); Tenant, supra. The trial court therefore did not err in allowing the similar transaction evidence.
3. Bean asserts that, even though the court charged the jury on the limited purpose of the similar transaction testimony as part of its general charge at the end of the trial, the court erred in not giving such a charge contemporaneous with the admission of the similar transaction testimony. Bean claims he requested such a contemporaneous charge and cites his motion in limine in support of that claim. While Bean's motion in limine does request a similar transaction jury charge, it does not ask that the court give the charge contemporaneously with the admission of the evidence. Moreover, our review of the trial transcript of the two similar transaction witnesses' testimony reveals that Bean did not request a contemporaneous charge before, during or after their testimony. Thus, contrary to Bean's assertion, it does not appear he ever requested that the court give a similar transaction charge contemporaneous with the admission of such evidence.
The Supreme Court has expressly ruled that absent a request for a contemporaneous charge, the trial court's failure to give such a charge is not error. See State v. Hinson, 269 Ga. 862, 506 S.E.2d 870 (1998); State v. Belt, 269 Ga. 763, 765, 505 S.E.2d 1 (1998). The trial court in this case therefore did not err in failing to charge the jury on the limited purpose of the similar transaction testimony at the time the testimony was admitted. See Stone v. State, 236 Ga.App. 365, 366-367(2), 511 S.E.2d 915 (1999); Rehberger v. State, 235 Ga.App. 827, 830(3), 510 S.E.2d 594 (1998).
4. Bean contends the court improperly ruled that he could not cross-examine the victim about a pending juvenile court proceeding which could have revealed the victim's motive in testifying against Bean. We disagree.
The court ruled that Bean should not refer to the victim's juvenile delinquency record, but that he could ask the victim if the state had promised him anything in exchange for his testimony. Thereafter, the court allowed Bean to elicit testimony from the victim that he had gone to Bean's house to avoid going to a juvenile court probation revocation hearing. Bean also was permitted to ask the *23 victim if the police, while questioning him in a youth detention facility, promised him leniency, immunity or any other help in exchange for his testimony against Bean.
Contrary to Bean's contentions, the court correctly ruled that the victim's juvenile delinquency record could not be used to impeach him. See Smith v. State, 270 Ga. 240, 244(5), 510 S.E.2d 1 (1998); McBee v. State, 210 Ga.App. 182(1), 435 S.E.2d 469 (1993). Moreover, the court did not impede Bean's ability to question the victim about his possible bias or motive for his testimony, but plainly allowed such questioning. We therefore find no error.
5. Bean contends the court erred in not allowing him to cross-examine the first similar transaction witness about a theft charge pending against him. When Bean attempted to question the witness about the pending charge, the court sustained the state's objection to the question and rejected Bean's assertion that he wanted to explore the witness' motive to testify on behalf of the state. This ruling was error.
A criminal defendant's right of confrontation includes the right to cross-examine a key State witness concerning pending criminal charges against the witness. In addition to the general right to impeach the witness by proof of prior criminal convictions, the defendant is entitled to make a more particular attack on the witness' credibility by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness.
(Citations and punctuation omitted.) Hurston v. State, 206 Ga.App. 570, 573(3), 426 S.E.2d 196 (1992) (physical precedent).
However, given the testimony of the victim, the other similar transaction witness, and the state's rebuttal witness, we find that there is overwhelming evidence of Bean's guilt and that the court's error was therefore harmless. See Garcia v. State, 267 Ga. 257, 259(7), 477 S.E.2d 112 (1996); Byrd v. State, 262 Ga. 426, 428(2), 420 S.E.2d 748 (1992).
6. Bean also argues the court improperly refused to allow him to question the other similar transaction witness about his motive for testifying in light of criminal charges pending against him. Although Bean claims that the court made this ruling when passing on the state's motion in limine, it is not apparent to us that such a ruling as to this witness was ever made.
At the start of the trial the court heard the parties' arguments on the state's motion asking that any attempts by Bean to impeach the state's witnesses be done through the introduction of certified copies of prior convictions and not by reference to arrest records. The parties' arguments focused on the juvenile victim and his juvenile record. At no time during the arguments did Bean claim that the second similar transaction witness had criminal charges pending against him about which Bean wanted to cross-examine him in order to show bias or motive in favor of the state. Rather, Bean argued only about the proper use of the juvenile victim's record. After the parties' arguments, the court issued its ruling as to the juvenile's record, as discussed above in Division 4, and further stated, "on the grown folks, you'd clearly have to show an adjudication there."
Based on the arguments made to the judge, we find that this statement was simply a correct ruling that in order to impeach a witness by showing general bad character a party must introduce evidence of the witness' conviction and may not rely on evidence of an arrest or pending charge. See King v. State, 194 Ga.App. 770(1), 391 S.E.2d 769 (1990). Because Bean had not argued to the judge that he wanted to explore the witness' motives for testifying due to some pending criminal charge, we cannot construe the judge's statement as somehow precluding Bean from questioning the witness about his motives.
Moreover, we note that when this witness testified, Bean made no effort to cross-examine him about any pending criminal charges. Consequently, Bean waived any argument on this issue not only by failing to suggest to the court that it was important to cross-examine the witness about pending charges to determine if he thought he had a reason to please the prosecution, but also by not attempting to question the witness about *24 the charges. See Isaac v. State, 269 Ga. 875, 876(2), 505 S.E.2d 480 (1998).
7. Bean complains that the court's jury charge on the statutory definition of child molestation was misleading because it failed to limit the jury's consideration only to the method of the crime alleged in the indictment. This complaint is without merit.
In addition to charging the jury on the definition of child molestation set forth in OCGA § 16-6-4(a), the court read to the jurors the indictment charging Bean with child molestation by masturbating in the victim's presence, instructed the jurors that the state bears the burden of proving every allegation in the indictment, and instructed the jurors that they were authorized to find Bean guilty of child molestation only if the evidence showed beyond a reasonable doubt that he committed the offense as set out in the indictment.
Thus, contrary to Bean's complaint, the jury charge as a whole was correct, not misleading and limited the jury's consideration of the child molestation charge only to the manner alleged in the indictment. Fuller v. State, 211 Ga.App. 104, 105(4), 438 S.E.2d 183 (1993); Potts v. State, 207 Ga. App. 863, 865(1), 429 S.E.2d 526 (1993).
Judgment affirmed.
POPE, P.J., and SMITH, J., concur.
NOTES
[1] Bean's enumeration of error violates OCGA § 5-6-40 by asserting other errors in addition to the allegedly deficient notice. We exercise our discretion by declining to review these multiple claims of error argued in a single enumeration. See White v. State, 221 Ga.App. 860, 861(1), 473 S.E.2d 539 (1996).
[2] In his enumerations of error regarding the sufficiency of the state's similar transaction notice, Bean again argues additional errors, which we shall not review. See White, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332652/ | 521 S.E.2d 367 (1999)
239 Ga. App. 684
HARVEY et al.
v.
HIGHTOWER et al.
No. A99A1501.
Court of Appeals of Georgia.
July 26, 1999.
Reconsideration Denied August 20, 1999.
Joseph I. Carter, Tifton, for appellants.
Fred W. Rigdon, Jr., Tifton, for Lindsey.
R.M. Hightower, pro se.
McMURRAY, Presiding Judge.
Patricia O'Quinn Harvey acquired an access easement across her sister's, Jo Edith Lindsey's, adjoining property via her deceased father's estate. Following this conveyance, Lindsey fenced her land and blocked Harvey's easement with chained gates. Lindsey allowed her neighbor, R.M. Hightower, to construct a "satellite dish" on her property, in the path of Harvey's easement.
Harvey brought an action against Lindsey and Hightower to remove these alleged obstructions.[1] Lindsey answered and asserted a right to fence her property and gate Harvey's easement so as to protect her property. Hightower neither answered the complaint, nor made an appearance at a subsequent bench trial. The trial court later entered an order pertinently providing that Lindsey may gate Harvey's easement, but that she must provide Harvey with access keys. The trial court's order also provides that Hightower's satellite dish does not impair Harvey's easement. This appeal followed. Held:
Harvey contends the trial court erred in finding that Lindsey's gates do not obstruct her easement. She also contends the trial court erred in allowing Hightower's satellite dish to remain in her easement. We are compelled to agree.
In Hill v. Miller, 144 Ga. 404, 87 S.E. 385, the Supreme Court of Georgia held that a servient tenant could not maintain a protective gate over the dominant tenant's prescriptive access easement. This holding is based on the fact that the dominant tenant acquired the easement during the prescriptive period without a gate obstruction. Thus, rather than examining the circumstances of the servient tenant's alleged need for protection, the Supreme Court of Georgia excluded the servient tenant's alleged right to gate his property by viewing such an obstruction as an unauthorized encumbrance upon the dominant tenant's easement. Id. at 407, 87 S.E. 385. The same logic appears to apply in the case sub judice.
*368 Although Harvey's access easement was conferred by grant rather than prescription, this difference does not appear to exclude the Supreme Court of Georgia's reasoning in Hill. Because Harvey acquired her right-of-way over Lindsey's property without Lindsey's gates as an encumbrance, the trial court erred in ruling that Lindsey's gates do not impair Harvey's easement. And while the rule in Hill v. Miller, 144 Ga. at 407, 87 S.E. 385, supra, would likewise appear to require removal of Hightower's satellite dish, we need not address this issue since Hightower failed to answer Harvey's complaint, and thereby admitted that his satellite dish obstructs Harvey's easement. Moss v. Wilkie, 210 Ga.App. 688(2), 437 S.E.2d 367; see McCombs v. Southern Regional Med. Center, 233 Ga.App. 676, 677(2), 504 S.E.2d 747.
Judgment reversed.
ANDREWS, P.J., and RUFFIN, J., concur.
NOTES
[1] Harvey's spouse is a party to this action as well as the appeal in the case sub judice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332648/ | 127 Ga. App. 542 (1972)
194 S.E.2d 302
BOLICK
v.
THE STATE.
47563.
Court of Appeals of Georgia.
Submitted October 5, 1972.
Decided October 19, 1972.
Rehearing Denied November 15, 1972.
Wiley H. Bolick, pro se, Carl P. Savage, Jr., for appellant.
Claude N. Morris, District Attorney, for appellee.
CLARK, Judge.
"Jailhouse lawyer" may be a pejorative term applied by some with derision but not by judges who know these penitentiary paracletes present frequently imaginative and innovative ideas. Gideon v. Wainwright, 372 U.S. 335 (83 SC 792, 9 LE2d 799, 93 ALR2d 733), was the result of a prisoner's product. Incarceration may provide the needed hours of idleness for contemplation which would be confirmation of the views expressed by famed New York City Attorney Morris Ernst who wrote in 58 Am. Bar Assn. Journal 165 (Feb. 1972) that "It is now apparent from vast studies that man's mind leaps higher and better when relaxed. I am persuaded that man is least inventive when he is waiting for a mess of telephone calls or watching a clock. Most of us get our good ideas falling asleep, waking up, lolling in a hot bath, driving a car along a known route or sitting on a toilet."
Such prefatory views arise from the ingenious legalisms expounded in the enumerations of error and written brief prepared here by a fellow inmate of the accused. This *543 followed the declination of his court appointed attorney to pursue an appeal after defendant had been convicted and given the statutory minimum sentence of one year for the crime of escaping from the Macon County Public Works Camp where he was serving a sentence imposed from another jurisdiction for burglary. His defense was his sworn testimony of lack of wilfulness in that he did not intend to escape but walked through an unlocked kitchen door with the purpose of going to the residence of a friendly guard to ask his intervention to arrange a removal from a large dormitory occupied by 30 convicts to a smaller section having 10 prisoners or to another place of detention.[1] His excuse for his behavior was fear of other prisoners arising from their threats. In rebuttal to such alleged lack of criminal intent the State proved that when apprehended 1 1/2 miles away some 3 to 4 hours after departure from durance vile he was wearing the warden's pants and shirt, without removal of the name tag, coupled with testimony from a fellow prisoner concerning defendant's discussions with him about escape plans.
Appellant's advocate urges four grounds of error, three being (a) insufficient time to appoint counsel for trial preparation, (b) not furnishing adequate and effective counsel for the trial and (c) failure to provide "counsel for this appeal and other necessary legal aids needed by the indigent and pauperis prisoner to guarantee his constitutional rights."
The remaining enumeration of error deserves to be quoted in full: "The State in this above case placed the responsibility *544 for security squarely on this indigent inmate, where security is the sole responsibility of a State and the agents thereof, and by doing so has created and caused civil damages, irreparable damages, on this indigent prisoner by their negligence and/or malfeasance in maintaining security at the level that would be required by law, as it is clearly recorded that there was no force and no arms and/or weapons, and no damage to any State or private property, and the records show that no crime was committed, not even a misdemeanor, other than the escape charge, by this indigent; the court erred by not considering the above stated and dismissing the charge of escape, where there was no escape, just a home sick indigent desiring and wandering into freedom which is so precious a heritage of all Americans, to seek without force what we all desire, cherish and demand, certainly cannot be a crime to pursue the guarantees that the Constitution was based on as a whole freedom for all men. It is sincerely believed that to dangle this morsel of freedom before the indigent and not expect him to have the American desire is squarely a violation of the 8th Amendment of the Constitution of the United States, cruel and unusual punishment, inflicted in a torturous way, by punishing for having an American desire for freedom and seeking in a peaceful way what is guaranteed to all in this beloved free land of the United States of America."
1. Appointed trial counsel himself raised the question of insufficient time for preparation, which he based upon this being his fifth court-appointed assignment during the term. In support of his motion the attorney argued this lack of time prevented him from interviewing the fellow prisoner subpoenaed by him at his client's direction whom he did not use after learning he was adverse but who was put on the stand by the State for rebuttal. Since he had brought this adverse witness into court at the direction of his client, it is clear the accused brought about his own undoing and not lack of time for preparation. *545 Furthermore, as the trial judge noted, the designation of counsel had been made six days in advance and the simplicity of the case did not warrant a postponement. This being a matter of discretion which was manifestly not abused, this contention is without merit. "Mere shortness of time, however, does not ipso facto show a denial of the rights of an accused. Something more is required." Carnes v. State, 115 Ga. App. 387, 388 (154 SE2d 781) cert. den., 389 U.S. 928 (88 SC 287, 19 LE2d 279). See also Smith v. State, 126 Ga. App. 547 (191 SE2d 304) and cits.
2. The complaint of court-appointed counsel being inadequate and ineffective is contradicted completely by the transcript of the trial. It shows defense counsel skilfully presenting every available objection with the trial judge scrupulously protecting the rights of the accused. In fact, the district attorney's handling was clearly aimed to make a fair and unbiased trial certain for the accused. It should be noted that appointed counsel was from the county in which the trial was held and the jury's verdict of the minimum sentence plus a recommendation for misdemeanor punishment constituted a vindication of the attorney's efforts in behalf of his client. "Where counsel, representing a defendant in a criminal case, is a member of the bar in good standing, and, in representing his client in the trial of his case, gives his complete loyalty to his client, serves him in good faith to the best of his ability, and his service is of such a character as to preserve the essential integrity of the proceedings in a court of justice, the requirements of due process within the Fourteenth Amendment of the Federal Constitution and Art. 1, Sec. 1, Par. 3 of the Constitution of Georgia are met." Hill v. Balkcom, 213 Ga. 58 (1) (96 SE2d 589). See also Hart v. State, 227 Ga. 171, 176 (179 SE2d 346) and Heard v. State, 126 Ga. App. 62 (189 SE2d 895).
3. This court does not consider the constitutional requirements to require an appeal in every criminal case. "A sentence is not necessarily void where counsel for one convicted of crime declines to appeal his case though *546 requested by his client to do so." Balkcom v. Roberts, 221 Ga. 339 (1) (144 SE2d 524). As was said by our Supreme Court in that case at p. 343, "[W]e are unwilling to substitute our judgment for that of his counsel who heard the evidence against him and observed the conduct of his trial." Moreover, it should be noted defendant received the minimum of one year rather than a greater sentence permissible by statute up to five years. Code Ann. § 26-2501. If there were a second trial a harsher sentence might well be the result and has been ruled permissible as not constituting double jeopardy. Salisbury v. Grimes, 223 Ga. 776 (158 SE2d 412); Salisbury v. Grimes, 406 F2d 50; Rozier v. State, 126 Ga. App. 336 (190 SE2d 627). See also North Carolina v. Pearce, 395 U.S. 711 (89 SC 2072, 23 LE2d 656).
4. Although we consider innovative the contention that accused was subjected to cruel and inhumane punishment in violation of the Eighth Amendment by imprisonment resulting from his having been unable to withstand the temptation of the unlocked kitchen door and because no force was used in his taking French leave, we see no legal merit in this contention.
5. The case was one in which the credibility of the accused was in issue and decided against him by the jury. His present appeal is reminiscent of the baseball plaint "we wuz robbed." Such analogy to our national pastime causes this court to comment: in baseball parlance, his attempt to reach home base failed and his squawk to this court in the position of umpire that "They ain't playing fair!" fails because the game was conducted in conformity with the rules.
Judgment affirmed. Eberhardt, P. J., and Deen, J., concur.
*547 ON MOTION FOR REHEARING.
CLARK, Judge.
Following rendition of the foregoing opinion we received a document entitled "Reply Brief for Appellant." As we had already considered all of the points raised therein our customary practice would be merely to enter the customary "Rehearing denied" with no further explanation. Since, however, we have become aware of the results of "creative loafing" and are impressed that the brief cites eight United States Supreme Court cases on one point alone, we deem it proper to deal with only one assertion. This is that the indigent defendant was entitled to have appointed counsel continue his services after trial though consummation of this appeal. Our efforts are in accord with the theme of the excellent article entitled "Habeas Corpus" by the beloved and venerable Hon. Frank A. Hooper, Senior U. S. District Judge of the Northern District of Georgia, published in the August 1972 issue of the Georgia State Bar Journal (9 Ga. State Bar Jour. 29) urging a spirit of comity between State and Federal judges in order to reduce the large number of habeas corpus petitions which he says "is one of the principal sources of chaos, confusion and congestion in the courts."
Appellant now claims he did not have the benefit of effective representation on this appeal in that his appointed counsel declined to participate. In support of this contention he cites Anders v. California, 386 U.S. 738 (87 SC 1396, 18 LE2d 493). It was there held that the constitutional right to counsel is not satisfied where an indigent petitioner seeking initial review of his conviction has an amicus curiae rather than an active advocate. The procedure there suggested at p. 744 is that "if counsel finds a case to be wholly frivolous after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court not counsel then proceeds, *548 after a full examination of all the proceedings, to decide whether the case is wholly frivolous." Our Supreme Court has recently approved this procedure in Chambers v. State, 229 Ga. 648.
Although in the case now under consideration appointed counsel wrote this court, he did not submit citations or argument. Nevertheless, we are of the opinion that constitutional requirements have here been satisfied as this appellate court has carefully reviewed the transcript of the trial and given full consideration to all legal points that might be involved.
It should be noted that the charge against the accused was not a complex or involved crime that would require extensive research. His defense against the charge of escape from a place of detention was based on his credibility in explanation as to intent. Did the jury believe that in fact he did not intend to escape? The finding of the jury was adverse to his contentions and the evidence supports the verdict which has been approved by the trial judge. Our review of the transcript shows his right to a constitutionally fair trial including representation by competent counsel existed.
Our Supreme Court has wisely ruled that the advisability of appealing a judgment of conviction is for determination by counsel. Buxton v. Brown, 222 Ga. 564 (150 SE2d 636) and Blackmon v. Smith, 226 Ga. 849 (178 SE2d 176). A primary reason for this rule revolves around the possibility that upon a re-trial a harsher sentence might result. In Rozier v. State, 126 Ga. App. 336 (2) (190 SE2d 627) we held that "imposition of a harsher sentence by a jury on a retrial after an appeal does not violate defendant's constitutional rights." Since that decision the United States Supreme Court ruled in Colten v. Kentucky, 407 U.S. 104 (92 SC 1953, 32 LE2d 584) that upon a de novo trial there is a completely fresh determination of guilt or innocence which distinguishes such procedure from Pearce v. North Carolina, 395 U.S. 711 (89 SC 2072, 23 LE2d 656).
Thus, it was in order for appointed counsel in the case at *549 bar to decline to have defendant take such risk after his representation brought a minimum sentence with the jury recommending punishment as for a misdemeanor. It is then in the judge's discretion as to whether he will approve such recommendation and his action thereon is final. Harris v. State, 216 Ga. 740 (119 SE2d 352) and citations therein. "`Lawyers are not required to be infallible ... The ability and faithfulness of an attorney is not to be judged by whether he won or lost the verdict.'" Hart v. State, 227 Ga. 171, 177 (179 SE2d 346) quoting Williams v. Beto (CCA 5), 354 F2d 698, 704, and Odom v. United States (CCA 5), 377 F2d 853. See also Heard v. State, 126 Ga. App. 62 (189 SE2d 895).
The remaining arguments in the brief are only repetitious of the original contentions which have already been fully considered and dealt with adversely to appellant.
Judgment adhered to. Eberhardt, P. J., and Deen, J., concur.
NOTES
[1] Georgia's prison reform program is making progress. The accused was transferred to the Reidsville penitentiary where he is studying a high school equivalency and automotive trade program with the result that he testified: "They've really got a good program for prisoners down there [at Reidsville] to help them and I really am proud that I've got there." (T., p. 26) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332655/ | 213 Va. 605 (1973)
RICHARD THOMAS HEWITT, JR.
v.
COMMONWEALTH OF VIRGINIA.
Record No. 8091.
Supreme Court of Virginia.
March 5, 1973.
Present, All the Justices.
Unauthorized use is a lesser offense included under larceny of motor vehicle. Essential difference is one of intent. Indictment sufficiently charges lesser offense and evidence supports conviction.
Error to a judgment of the Circuit Court of Nelson County. Hon. Robert C. Goad, judge presiding.
Humes J. Franklin, Jr. (Franklin, Poindexter & Franklin, on brief), for plaintiff in error.
William A. Carter, III, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
Per Curiam.
Richard Thomas Hewitt, Jr. was tried by the court without a jury on an indictment charging him with larceny of a pickup truck. He was found guilty of unauthorized use of a vehicle in violation of Code | 18.1-164 [1] and sentenced to serve six months in jail. We granted Hewitt a writ of error to determine whether the evidence supports the finding of unauthorized use and whether Hewitt could be convicted of unauthorized use when the indictment charged him only with larceny.
On the night of August 12, 1971, Hewitt was a passenger in a station wagon that failed to negotiate a curve on Route 639 in Nelson *606 County and overturned. None of the five occupants was killed, but Hewitt and another were injured. Leaving their wrecked vehicle the men walked up the road until they found parked in front of a house a pickup truck belonging to Wallace A. Hammer. Some of the group took possession of the truck, and one of them started the vehicle by "hotwiring" it. Because of his injuries, Hewitt did not actively participate in taking or moving the truck, but he rode on it with the others as it was driven about a half mile into Amherst County and up a fire trial. There was some evidence that Hewitt wished to be taken to a hospital, but the group slept in the truck that night and abandoned it on the fire trail the next day before dispersing to their homes.
Counsel for Hewitt argues that the evidence, while sufficient to support a conviction of larceny, is insufficient to support a conviction for unauthorized use. The essential difference between the two offenses is one of intent. A taking of personalty without the owner's consent and with intent to deprive him of possession permanently constitutes common law larceny. See Vaughan Lytton, 126 Va. 671, 679, 101 S.E. 865, 867 (1920); Black's Law Dictionary
1023 (4th ed. 1951). A taking of a vehicle with intent to deprive the owner of possession temporarily is unauthorized use under | 18.1-164. Intent may be inferred from the circumstances. Here, Hewitt's slight involvement, his injuries and his desire to be taken to a hospital in the truck were sufficient to justify the trial court in inferring that he did not intend to deprive the owner of possession permanently.
Moreover, although the evidence may tend to prove only the offense charged in the indictment, the finder of fact may nevertheless convict of a lesser offense. Blankenship Commonwealth, 193 Va. 587, 591-92, 70 S.E.2d 335, 337 (1952); Maxwell Commonwealth, 165 Va. 860, 868-69, 183 S.E. 452, 456 (1936).
We have not heretofore determined whether unauthorized use is a lesser offense included under larceny. We hold that it is. In Slater Commonwealth, 179 Va. 264, 18 S.E.2d 909 (1942), and Robinson Commonwealth, 190 Va. 134, 56 S.E.2d 367 (1949), both relied upon by Hewitt, unauthorized use was assumed to be a lesser included offense as the defendants, who were indicted for and convicted of larceny, sought to have the trial court give instructions to the jury on unauthorized use.
Code | 19.1-249 provides: *607
{"If a person indicted of a felony be by the jury acquitted of part of the offense charged, he shall be sentenced for such part as he is so convicted of, if the same be substantially charged in the indictment, whether it be felony or misdemeanor . . .."
Manslaughter and assault and battery are lesser offenses included under murder. Lee Commonwealth, 144 Va. 594, 607-08, 131 S.E. 212, 216-17 (1926); F. Wharton, Criminal Law | 33 (12th ed. J. Ruppenthal 1932). Unlawful wounding is a lesser offense included under malicious wounding. Code | 19.1-251; Montgomery Commonwealth, 98 Va. 840, 36 S.E. 371 (1900). The determining factor in each instance is intent, i.e. the presence or absence of malice.
Indecent exposure, Code | 18.1-236, while not a lesser offense included under sodomy because the facts to be proven are not the same, is a lesser offense included under the statutory felony of exposure to certain infants with lascivious intent, Code | 18.1-214, because only the intent differs. Ashby
commonwealth, 208 Va. 443, 158 S.E.2d 657 (1968). Similarly, intent alone distinguishes larceny of a vehicle from unauthorized use.
We conclude that the indictment charging that Hewitt did "feloniously and unlawfully . . . steal" the truck "against the will and wothout the consent" of the owner sufficiently complied with the provisions of | 19.1-249 to charge unauthorized use. His conviction of the lesser offense is therefore
Affirmed.
NOTES
[1] "| 18.1-164. Unauthorized use . . .. -- Any person who shall take, drive or use any . . . vehicle, . . . not his own, without the consent of the owner thereof and in the absence of the owner, and with intent temporarily to deprive the owner thereof of his possession thereof, without intent to steal the same, shall be confined in the penitentiary . . . [or] confined in jail. . . ." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332614/ | 521 S.E.2d 848 (1999)
239 Ga. App. 715
SAMS
v.
The STATE.
No. A99A1369.
Court of Appeals of Georgia.
August 27, 1999.
*849 Roderick H. Martin, Russell J. Parker, Jr., Marietta, for appellant.
Patrick H. Head, District Attorney, Debra H. Bernes, Joel C. Pugh, Nancy I. Jordan, Assistant District Attorneys, for appellee.
McMURRAY, Presiding Judge.
Defendant was tried before a jury and convicted of driving a motor vehicle after having been declared an habitual violator and receiving notice that his driver's license had been revoked as an habitual violator in violation of OCGA § 40-5-58(c)(1). The evidence which authorized this conviction, construed so as to uphold the jury's verdict (Tate v. State, 264 Ga. 53, 54 (1), 440 S.E.2d 646), reveals the following:
At about 6:15 in the morning on December 22, 1996, Cobb County Police Officer Michael Rosine was dispatched to investigate a reported car collision at a mobile home park. The officer found defendant's car abandoned on the side of the road. The driver had apparently left the car after colliding with a nearby stop sign. No key was in the car's ignition, but the vehicle was directed toward defendant's nearby mobile homewhich was a block and a half away. Officer Rosine had defendant's car impounded and then went to defendant's home and "let the people inside the trailer know that if [defendant] wanted his vehicle, he would need to contact the Cobb County Police Department."
Later, at 7:30 that morning, defendant appeared at the Cobb County Police Department asking about his car. Officer Rosine met defendant and "advised him it had been involved in a hit and run accident." While Officer Rosine was speaking to defendant, he noticed that defendant "had a very strong odor of an alcoholic beverage[; that his] eyes were bloodshot, [and that] he appeared unsteady on his feet." The officer then asked defendant where he had been the previous night, and defendant responded, "Runaround Sue's"a bar located in Kennesaw. Defendant told the officer that "he had his vehicle with him at Runaround Sue's." Officer Rosine asked defendant if he drove home from the bar, but defendant explained "that he didn't remember if he drove it home, that he blacked out." Defendant said "that he had been drinking a lot the night before." Officer Rosine then asked defendant if he had his car key and defendant responded, "of course I do, and he pulled them out of his pocket and showed them to [the officer]." At that point, Officer Rosine informed defendant that he was going to cite him for leaving the scene of an accident, but then learned that defendant's driver's license had been suspended, and Officer Rosine placed defendant under arrest.
This appeal followed the denial of defendant's motion for a new trial. Held:
1. Defendant challenges the sufficiency of the evidence, arguing that the circumstantial evidence of his guilt was insufficient to exclude his own hypothesis that another person wrecked his car.
In order to sustain the judgment of conviction, the evidence need not exclude every *850 inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt. It [is] the duty of the [jury], as the trier of fact, to determine if there was sufficient evidence, direct or circumstantial, to require a judgment of guilty. See Townsend v. State, 127 Ga.App. 797(2), 195 S.E.2d 474 and cits.
Goode v. State, 130 Ga.App. 791(2), 792, 204 S.E.2d 526. In the case sub judice, the jury was authorized in rejecting defendant's explanation of his innocencei.e., that an unidentified person wrecked his car. Defendant's admissions that he was at a bar with his car, in a state of extreme intoxication and too drunk to remember how he got home during the evening before his arrest, and proof that defendant's car was wrecked within a block and a half of his home; that defendant had possession of his car keys shortly after this collision, and that defendant's driver's license had been revoked based on his status as an habitual violator at the time of the collision are sufficient to authorize the jury's finding that defendant is guilty, beyond a reasonable doubt of driving a motor vehicle after having been declared an habitual violator and receiving notice that his driver's license had been revoked as an habitual violator in violation of OCGA § 40-5-58(c)(1). Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560; Parker v. State, 170 Ga.App. 333, 334(3), 317 S.E.2d 209.
2. Defendant contends the trial court erred by admitting statements he made to Officer Rosine before he was read his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694.
A suspect is not entitled to warnings under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, supra, unless that suspect has been taken into police custody or has been deprived of freedom of action in another significant way. Carroll v. State, 208 Ga. App. 316, 317(2), 430 S.E.2d 649. A trial court's findings as to whether a suspect was unlawfully questioned while in police custody, without being advised of his Miranda rights, will be upheld on appeal unless clearly erroneous. Brown v. State, 262 Ga. 833, 834-835(6), 426 S.E.2d 559. At a hearing conducted pursuant to Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, the trial court in the case sub judice found that defendant was not in police custody when he responded to Officer Rosine's questioning at the Cobb County Police Department. The evidence which supported this finding was Officer Rosine's testimony that he did not coerce defendant into coming to the police station; that defendant was free to leave during questioning and that, although defendant was questioned while behind closed doors, defendant was neither physically restrained nor unable to leave the interview room. This evidence supports the trial court's findings that defendant's statements were freely and voluntarily made, under noncustodial circumstances. See Mullis v. State, 248 Ga. 338, 340(9), 282 S.E.2d 334; Hendrix v. State, 230 Ga.App. 604(1), 605-606, 497 S.E.2d 236.
3. Defendant contends the trial court erred in failing to strike Officer Rosine's opinion testimony regarding why he believed defendant wrecked his car while en route home from "Runaround Sue's." Citing Maxwell v. State, 262 Ga. at 76(5), 414 S.E.2d 470, overruled on other grounds, Wall v. State, 269 Ga. 506, 507(2), 509, 500 S.E.2d 904, defendant argues that this testimony should not have been permitted because it went to the ultimate issue of fact for the jury.
While we agree that Officer Rosine's opinion testimony invaded the jury's province as to an ultimate issue of fact in violation of the rule enunciated in Maxwell v. State, 262 Ga. at 76(5), 414 S.E.2d 470, supra, we find no reversible error because the trial transcript reveals that defense counsel induced this error by asking Officer Rosine on cross-examination whether there is "any other link to [defendant] that you could place him in the vehicle other than a statement ...?" "Induced error cannot be complained of on appeal. [Cit.]" Chambley v. State, 177 Ga. App. 630(1), 340 S.E.2d 635.
4. Defendant contends the trial court erred in not requiring Officer Rosine to elaborate on whether defendant's memory *851 lapse would authorize a conclusion that someone else wrecked defendant's car. Defendant argues that defense counsel should have been permitted to inquire into theories that challenged the officer's own stated opinion.
The trial court determined that defense counsel's question to Officer Rosine during cross-examination"And it could mean that somebody had driven him home"was inappropriate because it called for speculation. This reasoning reflects an appropriate basis for the trial court's discretion in limiting the scope of defendant's cross-examination. See Dick v. State, 246 Ga. 697, 706(16), 273 S.E.2d 124. Finding no abuse of discretion, we affirm the trial court's judgment.
Judgment affirmed.
ANDREWS, P.J., and RUFFIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332656/ | 521 S.E.2d 257 (1999)
239 Ga. App. 448
The STATE
v.
MARKS.
No. A99A0983.
Court of Appeals of Georgia.
July 29, 1999.
*258 Barry E. Morgan, Solicitor, Jessica K. Moss, Katherine L. Kissam, Assistant Solicitors, for appellant.
John S. Morgan, Marietta, for appellee.
ELDRIDGE, Judge.
The State appeals from a Cobb County State Court order granting Susan Marks' motion to suppress Marks' refusal to take a State-administered breath test.
At approximately 2:30 a.m., appellee Susan Marks, Eric Billings, and five unnamed women were involved in a three-car accident on Barrett Parkway on the I-75 entrance ramp. Marks and Billings had just left Cowboys, a nearby bar. Marks rear-ended Billings' vehicle, which had rear-ended the vehicle occupied by the unnamed females. All three vehicles stopped in the road, and all passengers and drivers were milling around the vehicles when Officer B. Perez arrived on the scene.
Upon arrival, Perez "observed that two drivers were heavily intoxicated, and that's when I made contact with Susan Marks." The officer spoke to Marks and "observed a heavy odor of alcoholic beverage on her, and I asked her if she had been drinking that night. She said she had just left Cowboys and had four or five drinks that night." Officer Perez administered field sobriety tests to Marks. Marks "performed the finger to nose, which she failed both times, the heel to toe walk, which she failed, and the alphabet, which she did pretty fine, and the one-leg stand." The entire process was captured on videotape. During one part of the testing, Marks questioned the officer, asking "Why am I doing all these when they [the unnamed women] cut us [Marks and Billings] off?" On the videotape, Marks accused the officer of blaming her for the accident and thus making her perform the tests. Perez told Marks that the other drivers would be questioned too, and the officer "then gave her [Marks] a registeredgave her an alcosensor which she registered positive on. I gave her that before and after field tests. She registered positive both times." Marks was arrested at 2:50 a.m. and placed in the back of Perez's patrol car.
During the entire course of the field testing and questioning of Susan Marks, Eric Billings was continuously, as the trial judge *259 put it, "kibitzing the situation, that is, he was making comments and throwing out things as [the officer was] trying to handle [the] investigation." Officer Perez testified that "I kept having to look over there, and Officer Littler kept having to tell him to get back also."
After placing Marks in the back of the patrol car, Officer Perez turned her attention to Eric Billings. Billings admitted to having "four or five drinks at Cowboys," as well as several beers at an earlier Braves game. Perez administered the same field sobriety tests to Billings. He failed them and was placed under arrest. Immediately following arrest, Perez read Billings the implied consent notice for those age 21 and over. OCGA § 40-5-67.1(b)(2). When asked whether he consented to testing or not, Billings refused testing, complaining that the implied consent notice failed to contain the information that a hearing is held before one's driver's license is suspended for refusing to take a State-administered chemical test.
The videotape shows that at approximately 3:06 a.m., Officer Perez placed Billings in the back of her patrol car along with Marks. Immediately thereafter, in the amount of time it took Perez to walk around the car to Marks' side, Perez then read the implied consent notice to Marks. The audio portion of the videotape records no conversation between Marks and Billings while Perez was walking around the patrol car. Further, Perez did not hear any conversation. Also, Billings did not speak while Perez read the implied consent to Marks.
Perez began reading Marks the implied consent notice approximately 16 minutes after her arrest. Immediately after Perez began reading, Susan Marks stated "I don't agree to anything you're saying because I don't want to talk to you anymore." Officer Perez kept reading. Marks stated, "That's fine. I'm gonna sue you." Officer Perez kept reading. At the conclusion of the notice, Perez asked Marks to respond "yes or no," as to consent to testing. Marks refused to answer. It is only at this point in the audio portion of the tape that Billings' voice is heard urging Marks to "say no, say no." However, Marks did not take Billings' advice and refused to answer at all. Perez asked Marks if she was going to respond, and Marks replied "Nope." Susan Marks, again, complained that "you didn't give one thing to those girls who caused the wreck."
Marks and Billings were transported to the precinct. There, Perez took Marks aside. "I reread Implied Consent to her, placed her in front of the machine and she refused to perform the test."
Prior to trial, Marks filed a motion to suppress her refusal. She contended that the approximately 16-minute delay between her arrest and the reading of the implied consent warnings rendered Marks' subsequent refusal to take the test inadmissible. The trial court did not agree with this contention. The trial court did not find that the 16-minute delay between arrest and notification was excessive or unwarranted by the circumstances. Nor did the trial court find that the delay impaired the accused's ability "to make an intelligent choice concerning the state's request and [her] right to undergo an independent test." Perano v. State, 250 Ga. 704, 707, 300 S.E.2d 668 (1983).
Instead, the trial court granted Marks' motion to suppress because the trial court found that Officer Perez's act of placing Billings into the back seat of the patrol car interfered with Marks' decision as to implied consent testing:
[Trial Court:] Suppose I tell you that I am less concerned about the passage of 17 or 18 minutes of time and I am more concerned about the fact that they placed him [Billings] in the back seat of the patrol car with her, after this lengthy delay, an individual who had clearly been interfering with her, with the police officer trying to deal with her on her field sobriety, and that individual had just refused, very forcefully, just refused Implied Consent, and they placed him into the car with her in the back seat and then read her Implied Consent, and he is allowed to interfere with her answer in that by telling her say no, say no.... That's what I'm concerned about right there. That was a situation created by the police, not by the Defendant.... Bad advice was given by a person who was under arrest and under the control of the police, and they have a right *260 to keep him away from her if they wanted to. That's what worries me.
(Emphasis supplied.)
Thereafter, the trial court granted Marks' motion to suppress, finding:
I think that this was a situation that was created by the arresting officer that could have been easily avoided. There were more than one police car in the area. These two suspects could have been kept apart from each other. And perhaps if that had been done there would have been a better opportunity for Ms. Marks to remain calm and to have a better understanding of her Implied Consent and make a more reason to answer to the Implied Consent. Therefore, I am going to suppress her refusal to submit to the state-administered chemical test and not allow her refusal to be used in evidence against her.
Held:
1. We conclude that the above-referenced ruling was error based upon both (a) the law and (b) the facts of this case.
(a) The law does not require an officer to ensure that a DUI suspect be provided an environment free from a non-State actor's "bad advice" when deciding whether to cooperate with a properly administered implied consent notice, especially when that advice does not inure to the State's benefit and especially when the DUI suspect is equally free to ignore such advice. In Allenbrand v. State,[1] we specifically rejected the "bad advice" basis for suppressing a refusal to submit to chemical testing; we found that a DUI suspect who acts on non-State-initiated advice demonstrates the exercise of free "choice," regardless of whether such choice is later deemed to be based upon "good advice" or "bad advice." Id. at 611, 458 S.E.2d 382.
In this case, there is no evidence that the implied consent warnings given before the test gave Marks "inaccurate, misleading, and/or inapplicable information," thus depriving her of making an informed choice regarding submitting to or refusing the State-administered test. Morrissette v. State, 229 Ga.App. 420, 423(2)(a), 494 S.E.2d 8 (1997). Moreover, "[a]ppellant presented no evidence and absolutely nothing is raised by the evidence to suggest that appellant did not in fact understand, or was incapable of understanding, the law and [her] rights as read to [her] by the officer[ ]." Mitchell v. State, 174 Ga.App. 594, 596(1), 330 S.E.2d 798 (1985). See also State v. Leviner, 213 Ga.App. 99, 443 S.E.2d 688 (1994). Accordingly, we do not find that Officer Perez's act of placing a contentious Billings in the backseat of her patrol car with Marks provides a sufficient basis for suppression of Marks' subsequent refusal to submit to chemical testing, absent any allegation and evidence of defect in the implied consent notice and absent any allegation and evidence that Marks did not understand her rights under such notice. The trial court's granting of Marks' motion to suppress on this basis was error as a matter of law.
(b) "In reviewing a trial court's decision on a motion to suppress, an appellate court must adopt the trial court's findings of fact unless they are clearly erroneous and not supported by any evidence admitted at the suppression hearing. [Cits.]" State v. David, 269 Ga. 533, 535(1), 501 S.E.2d 494 (1998). Here, there is no evidence in the record to support the trial court's conclusion that the officer's act of placing Billings in the back of the patrol car with Marks "interfered with" Marks' decision as to implied consent.
(i) Marks did not testify at the suppression hearing, and she never stated that Billings interfered with or influenced in any way her decision as to implied consent. Accordingly, that such interference/influence occurred was not established so as to provide a factual basis for the trial court's decision. "A fact is not proved unless it is established." (Citation and punctuation omitted.) Jackson v. State, 177 Ga. 264, 265, 170 S.E. 26 (1933); Mooney v. State, 221 Ga.App. 420, 424, 471 S.E.2d 904 (1996).
*261 (ii) Further, a review of the videotape and the testimony at the hearing on the motion to suppress shows that, before Billings said one word to Marks in the back of the patrol car, Marks had already determined that "I don't agree to anything you're [Officer Perez] saying because I don't want to talk to you anymore." Marks' decision not to cooperate with chemical testing was apparent before Officer Perez could even begin the notification process properly and before Billings offered any alleged interference. From the video, it is clear that Marks' refusal to cooperate was driven not by any interference by Billings, but by Marks' anger that the police "didn't give one thing to the girls who caused the wreck," anger that Marks had expressed earlier during field testingwell before Billings was placed in the back of the patrol car.
(iii) Finally, according to the trial court, Billings' alleged interference was to advise Marks to "say no, say no" to chemical testing. However, while in the back of the patrol car, Marks did not listen to Billings. Instead, she refused to answer Officer Perez at all with regard to chemical testing. Later at the precinct, after Marks and Billings had been separated, Marks was again read the implied consent notice, and she was placed in front of the breath test machine. It was at that time, free from Billings' alleged interference and "kibitzing the situation," that Marks refused chemical testing.
Accordingly, based upon the facts of record, we find as clearly erroneous the trial court's factual determination that the officer's act of placing Billings in the back of the patrol car with Marks interfered with her decision as to implied consent. The trial court's granting of Marks' motion to suppress on this basis was error as a matter of fact.
2. We agree with the trial court's initial conclusion that, under the facts of this case, the approximately 16-minute delay between Marks' arrest and the reading of the implied consent notice did not require suppression of Marks' refusal to submit to chemical testing.
"[T]his Court has held that notification is timely if given at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant." (Citation and punctuation omitted.) Hollis v. State, 234 Ga.App. 269, 271, 505 S.E.2d 837 (1998). A delay may be warranted where "the exigencies of police work prevent giving the advice." Edge v. State, 226 Ga.App. 559, 560, 487 S.E.2d 117 (1997).
Here, at 2:30 a.m., on Barrett Parkway next to the I-75 entrance ramp, Officer Perez was dealing with a three-car collision. The vehicles were still in the roadway, and seven people were involved. Initially, there were three officers on the scene,[2] one of whom handled the unnamed women and arranged to have the vehicles moved and impounded, and one of whom was a training supervisor who tended to the disruptive Eric Billings, aided in the handling of traffic and vehicles, and observed Perez as lead investigative officer. "[I]n deciding whether the delay in giving implied consent advice is excusable, we consider the particular set of facts and circumstances of each case. [Cit.]" Edge v. State, supra at 561(1)(a), 487 S.E.2d 117. Under the facts and circumstances of this case, we agree with the trial court that it was not unreasonable for Perez, in dealing with Marks and Billings, both of whom appeared to the officer to be heavily intoxicated, to determine that attending to Eric Billings was necessary prior to reading Marks the implied consent notice.
In a situation where an officer properly delays the reading of implied consent for a brief period in order to attend to the exigencies of police work, it would appear incumbent upon a defendant to demonstrate how she would have benefited by being read the implied consent notice earlier. Fore v. State, 180 Ga.App. 196, 348 S.E.2d 579 (1986); Mason v. State, 177 Ga.App. 184, 186(2), 338 S.E.2d 706 (1985); see also Vandiver v. State, 207 Ga.App. 836, 838, 429 S.E.2d 318 (1993) (Birdsong, P.J., dissenting). Marks has made no such showing.
*262 [D]ue to the more immediate concerns of the arresting officer in the present case with completing [her] investigation of the accident scene and dealing with the hazard created by the [the second intoxicated, contentious suspect], and given the fact that it would have been of no conceivable benefit to the defendant to have been informed of [her] implied consent rights any earlier, we hold that the advice was given as soon after the moment of the arrest as was reasonably practical.
(Citation and punctuation omitted.) Fore v. State, supra at 196, 348 S.E.2d 579.
"Accordingly, because the warning was given in close proximity to the arrest and its timing was warranted by the circumstances, the evidence of defendant's refusal to submit to testing was admissible and should not have been suppressed." (Citation and punctuation omitted.) State v. Holmes, 224 Ga. App. 29, 30, 479 S.E.2d 409 (1996).
Judgment reversed.
POPE, P.J., and SMITH, J., concur.
NOTES
[1] 217 Ga.App. 609, 610-611(2), 458 S.E.2d 382 (1995) (rejecting defendant's contention that he was deprived of an opportunity to make an informed choice regarding implied consent because "`attorneys in the past had advised him never to take the breath test'").
[2] Apparently, one more officer arrived on the scene after Marks had been placed in the back of the patrol car and Perez was interviewing Billings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332667/ | 127 Ga. App. 604 (1972)
194 S.E.2d 346
FULTON INDUSTRIES
v.
KNIGHT.
47308.
Court of Appeals of Georgia.
Argued July 5, 1972.
Decided October 24, 1972.
Rehearing Denied November 21, 1972.
Smith, Cohen, Ringel, Kohler, Martin & Lowe, Williston C. White, for appellant.
Albert P. Feldman, Marjorie C. Thurman, for appellee.
BELL, Chief Judge.
In a prior appearance of this case we reversed the judgment of the superior court affirming an award denying compensation in a death case on the basis of erroneous findings of fact and directed that the case be recommitted to the board for rendition of a proper finding of fact. Knight v. Fulton Industries, 123 Ga. App. 538 (181 SE2d 691). The board, upon remand and without hearing any new evidence, made findings of fact that the deceased died from cardiac arrest on the premises of the employer which resulted from his exertion of walking up and down a flight of stairs at least four times on the *605 day of death and "shortly prior thereto" and awarded the claimant widow compensation. The superior court affirmed and awarded claimant $750 attorney fees and the expenses of the appeal to the superior court. Held:
1. We disagree with the employer's first enumeration of error which maintains that the findings of fact are insufficient to support the board's ultimate conclusion as to compensability; that the board is required to make underlying findings of fact supporting the ultimate findings which it did not do. The findings are sufficient and supported by evidence. They show employment, that the employee suffered a heart attack while at work which resulted from exertion in climbing and descending stairs and the ultimate conclusion that he died of an accident or injury arising out of and in the course of his employment and that his widow is entitled to compensation. The argument that the board must make underlying findings with respect to the lay testimony as well as medical testimony to support its ultimate finding that death was caused by cardiac arrest is without merit. All the evidence, lay as well as medical, points to no conclusion other than death was caused by cardiac arrest.
2. The board found as a fact that deceased walked up and down a flight of stairs "shortly" prior to his death. It is contended that by the use of the term "shortly," the board misread the evidence as death occurred at 2:00 p. m., more than two and one half hours after the ascent or descent of the stairs and therefore in view of this time lapse, the event in climbing the stairs could not be logically or reasonably inferred as happening "shortly" prior to death. A death certificate included in the record does reflect the time of death as 2 p. m. The term "shortly" in point of time is a relative term and Webster has defined it as a short interval of time. Under the facts of this case we cannot say that the board erred in finding that two and one half hours is "a short interval" of time.
3. Error is alleged in that the board failed to make a finding on the question of notice as required by Code § 114-303. *606 While there is an absence of this finding, no issue as to notice was raised below. The deceased collapsed on the employer's premises and his supervisor testified that he was made aware on the very same day that "something" had happened to the deceased at the plant and that the employee had died. This evidence demands that the employer was placed on notice of an injury to the employee arising out of and in the course of employment. The employer did establish that it did not receive notice that a claim for compensation would be made until more than 30 days after the employee's death. The required notice need not be given with a view to claiming compensation. Davidson-Paxon Co. v. Ford, 88 Ga. App. 890, 892 (78 SE2d 257). The absence of any finding on notice is not cause for reversal where the facts are undisputed that the employer was given timely notice of the injury. It is not necessary to remand a case to the board because of its failure to state findings of fact on issues where the facts in the record are undisputed. Lee v. General Accident Group, 112 Ga. App. 197 (c) (144 SE2d 457).
4. There is no merit in the contention that the prior decision by this court was accepted by the board as a mandate to rule in favor of the widow. The record shows that the board performed its statutory duty. The mere fact that it found in favor of the widow after reversal of an earlier award in favor of the employer does not alone indicate that it abdicated its duties to consider all the evidence and to make appropriate findings of fact.
5. The award of $750 attorney fees and the expenses of the appeal are not authorized. Questions raised on appeal had substance and the grounds of the appeal are not totally unreasonable. Commonwealth Ins. Co. v. Arnold, 114 Ga. App. 835 (152 SE2d 896). As to the reasonableness of the appeal it is somewhat persuasive to recall that this judgment appealed and affirmed is totally different from that one in the same case which was appealed and reversed. We will affirm the judgment below with direction to set aside so much of the judgment as *607 provides for an award of attorney fees and expenses.
6. The motion for damages for delay under Code § 6-1801 is denied.
Judgment affirmed with direction. Stolz, J., concurs. Evans, J., concurs specially.
EVANS, Judge, concurring specially.
I concur in the judgment affirming the trial court, but as to Division 5 of the majority opinion, I concur specially. This is another instance of depriving a plaintiff's attorney of attorney fees, and I believe a re-examination of this entire area of practice is in order. I favor the allowance of attorney fees in proper cases, and yet it becomes increasingly difficult to give effect to same. Perhaps the General Assembly should spell out those instances when a litigant is entitled to attorney fees in unmistakable language, so they may not be taken away from an attorney by the court, as is now the prevailing practice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332665/ | 229 Ga. 881 (1972)
194 S.E.2d 910
SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY
v.
MARTIN.
27529.
Supreme Court of Georgia.
Argued November 14, 1972.
Decided December 4, 1972.
Rehearing Denied December 20, 1972.
Harry S. Baxter, William W. Cowan, A. Stephens Clay, for appellant.
Hansell, Post, Brandon & Dorsey, W. Lyman Dillon, Jule W. Felton, Jr., Powell, Goldstein, Frazer & Murphy, Daryll Love, for appellee.
Bouhan, Williams & Levy, George W. Williams, Leamon R. Holliday, III, Joe M. Harris, Jr., Trotter & Duncan, William P. Trotter, Henry L. Bowden, Edwin L. Sterne, Tisinger & Tisinger, Robert D. Tisinger, Carl E. Sanders, Allen E. Lockerman, Robert L. Pennington, amicus curiae.
UNDERCOFLER, Justice.
This case is here on certiorari from the Court of Appeals. Beverly Ann Martin filed a complaint seeking recovery for injuries she sustained when the automobile in which she was a passenger collided with a telephone pole constructed and maintained by Southern Bell Telephone & Telegraph Company in the City of Atlanta. The complaint was filed against the driver of the vehicle, the owner of the vehicle, and Southern Bell. This appeal involves the sole question of whether the trial judge properly granted Southern Bell's motion for summary judgment. The Court of Appeals held that the motion for summary judgment should not have been granted and reversed the trial court. A full statement of the facts appears in Martin v. Southern Bell Tel. & Tel. Co., 126 Ga. App. 809 (192 SE2d 176).
As a part of its motion for summary judgment, Southern Bell attached certain ordinances of the City of Atlanta granting it a franchise to use its streets and to construct, operate and maintain telephone and telegraph lines, including the erection of poles. The ordinance provides: "That the work of erecting poles, and constructing subways shall be done under the supervision of the city electrician, or the street committee, or such other person or persons as the city council may designate." Held:
1. The owner of a telephone pole is not liable for its alleged negligent placement in a public road right of way where such pole is located with the approval of the county or municipal authorities and does not obstruct or *882 interfere with the ordinary use of the public highway. In our opinion this is the intent of Code § 104-205. It specifically grants to telephone companies the right to locate their lines "... upon, under, along, and over the public highways of this State, with the approval of the county or municipal authorities in charge of such highways ..." The City of Atlanta in 1907 granted to Southern Bell Telephone & Telegraph Company the right to construct, operate and maintain its lines and provided, "That the work of erecting poles ... shall be done under the supervision of the city electrician, or the street committee, or such other person or persons as the city council may designate." However, the city may also acquiesce in the location of the poles. As stated in South Ga. Power Co. v. Smith, 42 Ga. App. 100 (2) (155 S.E. 80), "Since the city could have lawfully authorized the erection of the poles in the middle of the street, the acquiescence by the city, in the maintenance of the poles in the middle of the street, although they had originally been erected there by the power company in violation of the restriction placed by the city on the manner of their erection, amounts to a waiver by the city of the restriction which it had imposed upon the power company, and the maintenance by the power company of the poles in the middle of the street, while acquiesced in by the city, and where otherwise not unlawful, does not, as to persons lawfully using the street, constitute negligence as a matter of law." Thus it cannot be said that the pole was negligently located by the telephone company. See Townsend v. Ga. Power Co., 44 Ga. App. 132 (160 S.E. 712).
Code § 104-205 also provides, "that the posts, arms, insulators, and other fixtures of such lines be so erected, placed, and maintained as not to obstruct or interfere with the ordinary use of such ... public highways ..." The evidence is clear here that the pole was located behind a curb line which delineated the ordinary use of the road by vehicular traffic. The evidence further showed that if the vehicle in which the plaintiff was riding had *883 remained on the paved portion of the road and within the curb, it would not have struck the pole. See Lenderman v. Haynie, 89 Ga. App. 513 (80 SE2d 216); Southern Bell Tel. & Tel. Co. v. Spears, 212 Ga. 537 (93 SE2d 659).
We think our conclusion as to the intention of Code § 104-205 is further supported by Code § 69-304 which states, "Without express legislative authority, a municipality may not grant to any person the right to erect or maintain a structure or obstruction in a public street."
2. Under certain circumstances, it has been held that the failure to properly maintain utility poles may create an inherently dangerous situation and may result in liability. Lenderman v. Haynie, 89 Ga. App. 513, supra. We hold, however, that the failure to provide warning signs, lights, guardrails, crash cushions and breakaway type poles would not create an inherently dangerous situation.
3. The motion for summary judgment made by Southern Bell was properly granted by the trial judge.
4. The motion to dismiss the application for the writ of certiorari in this case is denied.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332663/ | 229 Ga. 765 (1972)
194 S.E.2d 465
PARK et al.
v.
MINTON et al.
27446, 27447.
Supreme Court of Georgia.
Argued September 12, 1972.
Decided November 9, 1972.
Rehearing Denied November 30, 1972.
*766 Twitty & Twitty, Frank S. Twitty, Jr., for appellants.
Frank C. Vann, for appellees.
MOBLEY, Chief Justice.
Mrs. Hettie A. Park, Mrs. Ins. A. Reeves, and Mrs. Johnnie A. Mewborne brought a complaint plaint against Mrs. Eunice C. Minton, individually and as administratrix of the estate of J. O. Minton, and the three minor children of J. O. Minton. The complaint alleged that: J. O. Minton died intestate on September 1, 1971, leaving his widow, Eunice C. Minton, and three named minor children as his heirs. At the time of his death J. O. Minton was the owner of described real property. This property was set aside to Mrs. Minton and the three minor children as a year's support, subject to certain security deeds. J. O. Minton was formerly married to the sister of the plaintiffs and inherited the described property from her on her death in 1953. For several years prior to the death of the plaintiffs' sister, J. O. Minton had been farming her land and that of the plaintiffs which adjoined it, and he desired to continue farming all of the land together. On January 14, 1953, the plaintiffs and J. O. Minton entered into an agreement wherein the plaintiffs agreed for J. O. Minton to farm their land rent free for the remainder of his life, paying only the ad valorem taxes as they became due, in consideration of which J. O. Minton agreed to devise the property he inherited from their sister to the plaintiffs, their sister and brother. Pursuant to the agreement, J. O. Minton farmed the land owned by the plaintiffs for the remainder of his *767 life without paying rent. A few years after the contract was made J. O. Minton married Eunice C. Minton. She was fully advised of the agreement. The value of the described property at the time of the agreement was approximately $24,000. The reasonable value of the rental of the plaintiffs' property during the life expectancy of J. O. Minton would exceed the value of the property, and the agreement was fair and equitable. The plaintiffs have fully performed their obligations under the agreement and are entitled to have specific performance. The plaintiffs demanded specific performance, or damages in lieu thereof, and injunctive relief.
The defendant's filed motions to dismiss on the grounds that the complaint fails to state a claim upon which relief could be granted; the complaint seeks to set aside a valid judgment of a court of competent jurisdiction and fans to set forth any grounds upon which it could be set aside; and as to the defendants individually, the complaint seeks to recover damages for an alleged breach of contract between J. O. Minton and the plaintiffs on which the defendants are not personally liable.
On June 8, 1972, the trial judge entered a judgment sustaining the motions to dismiss and dismissing the complaint as to all defendants. This order recited that the parties had agreed that if any contract existed, it was oral, and that the year's support proceedings were valid.
Notice of appeal from this judgment was filed by the plaintiffs on July 6, 1972 (Case No. 27446).
On July 11, 1972, the trial judge entered an amended order, adhering to his ruling that the complaint showed no reason why the year's support judgment should be set aside, and that the judgment is superior to any claim asserted in the complaint, but stating that he could not determine as a matter of law from the pleadings whether the plaintiffs have a claim against the estate of J. O. Minton, and therefore against the administratrix in her representative capacity, and this question is left for future determination.
Notice of appeal was filed from this order (Case No. 27447).
*768 1. The appellees have filed motions to dismiss the appeals in both cases, asserting that the appellants have failed to include a statement as to why the Supreme Court has jurisdiction of the appeal in their enumerations of error, and have failed to include a copy of the enumerations in their brief. The appellants have filed amendments to their enumerations of error and briefs supplying the information.
The rules of this court which the appellants have failed to comply with are directory only, and not jurisdictional. Compare Norton Realty &c. Co. v. City of Gainesville, 224 Ga. 166, 169 (160 SE2d 819). The motions to dismiss are denied.
2. We consider first the appeal (Case No. 27446) from the judgment dismissing the complaint.
An oral contract to make a will devising land, for a valuable consideration, which contract has been performed by the promisee, will be enforced by specific performance, if its terms are fair and equitable; and if specific performance is impossible, damages will be awarded for its breach. Banks v. Howard, 117 Ga. 94 (1) (43 S.E. 438); Gordon v. Spellman, 145 Ga. 682 (89 S.E. 749, AC 1918A 852); Redford v. Lloyd, 147 Ga. 145 (2) (93 S.E. 296); Landrum v. Rivers, 148 Ga. 774 (1) (98 S.E. 477); Zachos v. Citizens & Southern Nat. Bank, 213 Ga. 619 (100 SE2d 418); Pace v. Pace, 220 Ga. 66 (5) (137 SE2d 28); Harp v. Bacon, 222 Ga. 478 (1) (150 SE2d 655); Liberty Nat. Bank &c. Co. v. Diamond, 227 Ga. 200 (179 SE2d 761).
The complaint alleged an oral contract to devise property enforceable in a court of equity.
3. A year's support for the widow and minor children of a decedent is among the necessary expenses of administration and is to be preferred before all other debts except those provided by statute. Code § 113-1002, as amended. A year's support will be granted whether the decedent dies testate or intestate, but where the testator by his will makes provision in lieu of the year's support, the widow must elect whether she will take under the will or apply for the year's support. Code § 113-1007.
*769 The claim of a widow for a year's support is superior to legacies given by her husband in his will. Grant v. Sosebee, 169 Ga. 658, 661 (151 S.E. 336); Knowles v. Knowles, 125 Ga. App. 642, 647 (188 SE2d 800). "The husband can make no disposition of his property by will which will defeat the year's support of his widow." McNair v. Rabun, 159 Ga. 401, 407 (126 S.E. 9). A judgment placing title to property in the widow in a year's support proceeding is superior to the claim of title of a devisee under the will of her husband. Bowman v. Bowman, 215 Ga. 459 (111 SE2d 36).
If J. O. Minton, after his marriage to Eunice C. Minton, had devised the property described in the complaint to the appellants pursuant to the contract alleged, the title of the widow and minor children under the year's support proceedings would be superior to the title under the will of J. O. Minton. By analogy, the title under the year's support proceedings is superior to the claim of title of the appellants under the oral contract to devise.
Since specific performance of the contract to devise the described property is impossible, the only remedy that the appellants would have would be damages for the breach of the contract, if there are other assets of the estate. See Gordon v. Spellman, 145 Ga. 682 (3), supra. The complaint does not show that there are no other assets from which damages could be paid, and the trial judge erred in dismissing the complaint. Therefore the judgment in Case No. 27446 is reversed.
3. The appeal in Case No. 27447 is from an order which is not a final judgment, and there is no certificate for immediate review. However, consideration of this order was necessary in order to determine what effect it had on the judgment in Case No. 27446.
The order appealed from in Case No. 27447 was entered after the notice of appeal was filed in Case No. 27446. In Aetna Casualty &c. Co. v. Bullington, 227 Ga. 485 (1) (181 SE2d 495), it was held: "The filing of a notice of appeal serves to supersede a judgment and while on appeal, the trial court is without authority to modify such judgment. *770 See Jackson v. Martin, 225 Ga. 170, 172 (167 SE2d 135), and citations. Accordingly, the judgment attempting to vacate the prior judgment, though rendered during the same term of court, was a nullity, ..."
While the trial judge reached the proper result in the amended judgment, it was entered at a time when he had no jurisdiction, and is a nullity.
Judgments reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332683/ | 521 S.E.2d 419 (1999)
239 Ga. App. 472
MITCHELL
v.
SPEERING.
No. A99A1494.
Court of Appeals of Georgia.
July 29, 1999.
Bell & Bell, David B. Bell, Sharon B. Enoch, Augusta, for appellants.
Thompson & Smith, Larry I. Smith, Augusta, for appellee.
RUFFIN, Judge.
Sharon Mitchell sued Mabry Kathryn Speering in the Civil Court of Richmond County for causing a three-vehicle collision. After Speering failed to respond to Mitchell's complaint, the trial court entered a $20,000 default judgment. More than three and a half months later, the court granted Speering's motion to set aside the default judgment, finding a proper case for doing so under OCGA § 9-11-60. For reasons that follow, we reverse.
After settlement negotiations floundered, Mitchell filed suit against Speering. Mitchell's counsel sent a copy of the complaint by certified mail to Allstate Insurance Company ("Allstate"), and the return receipt bears the date of June 8, 1998. Allstate then forwarded the file to its counsel, who received it the next day. Service, however, was not perfected on Speering until August 15, 1998, when Speering personally accepted service. The *420 process server's affidavit was file stamped by the clerk's office on August 24. After no response was forthcoming from Speering, Mitchell obtained judgment by default on October 5. The order recited that the court tried the issue of damages without a jury and it awarded $20,000 to Mitchell.
Nearly two months later, on December 2, Speering moved to set aside the judgment. In support of this motion, Speering offered no evidence of fraud or accident but instead relied solely on a single affidavit from the legal assistant of defense counsel, which blamed the clerk's office for providing misinformation about service. The legal assistant averred that she had checked with the clerk's office on seven different dates spanning from June 16 to October 22 and had been advised each time that service had not been perfected. Yet, for none of those dates did the legal assistant identify any employee of the clerk's office by a complete name or provide any specific details. Instead, the affidavit simply recited, "[o]n [each of certain dates] Affiant telephoned the Clerk's office and was informed that service had not been perfected on the Defendant."[1]
After accepting service of the complaint, Speering testified that she did absolutely nothing about the suit. When asked in her deposition, "[w]hat did you do with [the pleadings]?" she responded, "[a]ctually, they kind of got under my pile of things to do and I didn't get back to them." She admitted that she did not contact Allstate or an attorney or anyone else after being served with the complaint. Speering also affirmed that after June 1, 1998, Allstate never telephoned or corresponded with her concerning the automobile accident or about service of the complaint.
In an order filed January 27, 1999, the trial court set aside the October 5 default judgment. The court found that
defense counsel's office justifiably relied upon verbal communications with personnel in the Clerk's office regarding the status of service of process. During these communications, an error occurred which may have contributed to the failure to file a timely answer.
In her sole enumeration of error, Mitchell contends that the trial court erred in setting aside the judgment because Speering's own negligence contributed to the entry of judgment. We agree.
After the expiration of the term of court in which a default judgment is entered, the discretion of the court in setting aside the judgment is limited to the criteria set forth in OCGA § 9-11-60.[2] See Lee v. Restaurant Mgmt. Svcs., 232 Ga.App. 902, 903(1), 503 S.E.2d 59 (1998). Thus, this default judgment could be set aside only if the provisions of OCGA § 9-11-60 were satisfied. See Archer v. Monroe, 165 Ga.App. 724, 725(2), 302 S.E.2d 583 (1983). Under subsection (d)(2), a judgment may be set aside where that judgment was procured on the basis of "[f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant." OCGA § 9-11-60(d)(2). But where there is any negligence or fault on the part of the movant, this section is inapplicable. Richardson v. Indus. Welding &c., 238 Ga. 144, 145(2), 231 S.E.2d 760 (1977); First Dixie Properties v. Chrysler Corp., 202 Ga.App. 145, 146-147, 413 S.E.2d 464 (1991). A mistake on the part of a movant does not afford a basis for relief under OCGA § 9-11-60(d)(2). Smith v. Manns, 200 Ga.App. 701, 703(1)(b), 409 S.E.2d 270 (1991).
Even assuming arguendo that the legal assistant's affidavit constituted admissible evidence, such evidence would not negate Speering's admission on deposition that she *421 did nothing after being served with the complaint. See Hassell v. First Nat. Bank of Newton County, 218 Ga.App. 231, 234(2), 461 S.E.2d 245 (1995); Moore v. State, 154 Ga. App. 535, 268 S.E.2d 706 (1980). Even if the clerk's office had misinformed the office of Speering's counsel that service had not been perfected, this "mistake" would not justify setting aside the judgment because it was not unmixed with the negligence or fault of Speering, who failed to take any action in response to the complaint and whose counsel did not check with her to see whether she had been served. See Aycock v. Hughes, 189 Ga.App. 838(1), 377 S.E.2d 689 (1989). Accordingly, the trial court abused its discretion in setting aside the judgment. Lee, supra.
Notwithstanding Speering's claim to the contrary, Wright v. Archer, 210 Ga.App. 607, 608(1), 436 S.E.2d 775 (1993) neither demands nor authorizes a different result. In Wright, we presumed that the trial court's factual findings were correct because no evidence or transcript had been provided for appellate review. Id. Whereas here, Speering's undisputed deposition testimony attests to fault on her part. Because the mistake asserted was not unmixed with the negligence or fault of Speering, we reverse. See Northeast Atlanta Surety Co. v. State of Ga., 197 Ga.App. 399, 401-402, 398 S.E.2d 435 (1990).
Judgment reversed.
McMURRAY, P.J., and ANDREWS, P.J., concur.
NOTES
[1] To controvert the occurrence of any alleged mistake, Mitchell offered an affidavit from the Clerk of the Civil Court, Vera Butler. Butler testified that the affidavit showing service on Speering "was properly filed and an entry was made on the Bench Execution Docket." Butler averred that had a call been placed, as claimed, "in which the captioned case was properly identified, then the caller would have been told of the entry of service on the Bench Execution Docket of the Clerk's office."
[2] Speering did not controvert Mitchell's statement of fact that the term of court in which judgment was entered had expired. Thus, we accept this statement of fact as true. See Court of Appeals Rule 27(b)(1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332670/ | 521 S.E.2d 901 (1999)
239 Ga. App. 763
WHITLOCK
v.
The STATE.
No. A99A1192.
Court of Appeals of Georgia.
August 31, 1999.
Certiorari Denied January 14, 2000.
*902 Anthony T. Pete, Athens, for appellant.
Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.
PHIPPS, Judge.
Jimmy Whitlock was convicted of armed robbery and aggravated assault. For the armed robbery, he was given the mandatory minimum sentence of ten years' imprisonment without possibility of parole. OCGA § 17-10-6.1(b). He was given a concurrent ten-year sentence for the aggravated assault. Following denial of his motion for new trial, he appeals his convictions.
An indictment was returned charging Whitlock, Terry Evans, and Joseph Houston with one count each of armed robbery and aggravated assault on June 7, 1997. The indictment alleged that a purse and its contents had been taken from Maggie Scott by use of a handgun and that an aggravated assault with intent to rob was committed upon Bill Sparks. The indictment also charged Evans, Houston, and a third individual with two counts of robbery by sudden snatching on May 29, 1997. Evans pled guilty to the June 7 crimes. He and his girlfriend, Rebecca McDonald, testified for the State at Whitlock's trial.
Sparks and Scott were University of Georgia students. Testimony given by them showed that at approximately 3:00 a.m. on June 7, they were walking toward Sparks's apartment in a dimly lit area on Baxter Street when they were accosted by three males. The one in the middle pointed a gun at Sparks's face and demanded money. Sparks handed his wallet to the taller man on the right while telling him that the wallet contained no money. After the taller man searched the wallet and returned it, Sparks gave him Scott's purse containing a billfold with credit cards and six dollars in cash. The robbers kept the billfold and fled the scene.
When questioned by police concerning the May 29 robberies, McDonald provided information as to the crimes committed on June 7. McDonald testified that on the evening of June 6, she and her friend Kim Trent had come from Commerce to Athens where they "met up" with her boyfriend Evans, Houston, and Whitlock; and that she observed Evans and Houston in possession of guns.
Testimony given by McDonald and Evans showed that Whitlock was attempting to secure money so he and Trent could get a motel room. At approximately 3:00 a.m. on June 7, the group was proceeding down Baxter Street in a car owned by McDonald but driven by Evans, when Whitlock noticed a male and a female college student standing in the area of an apartment building. At Whitlock's urging, Evans stopped the car and the three men exited it. Then they went around the building and returned to the car several minutes later.
McDonald testified that the three men attempted to conceal their faces as they walked away from the car. Evans testified that Houston pulled a handgun and told the victims to "give it up," whereupon the wallet and purse were handed to Whitlock. According to Evans and McDonald, Evans drove McDonald and the others to a Krystal restaurant after Evans and the other two men returned to the car. According to McDonald, Evans and Houston discussed the robbery en route, and Houston said that he had told the victims to "give it up." McDonald further testified that while they were in the car, the billfold was given to her after Whitlock went through it and removed the six dollars; and, after arriving at the restaurant, she deposited the billfold and credit cards in a trash can. McDonald's and Evans's testimony further showed that the group went from the Krystal to a motel and got a room in Trent's name. They stayed there for about one and one-half hours. *903 Whitlock and Trent were in the room by themselves most of the time.
Neither Sparks nor Scott was able to positively identify any of their assailants. But upon viewing Whitlock at trial, Sparks testified that he was the same height, build, and general physique as the man who had taken his wallet and Scott's purse. Scott gave like testimony concerning this man's height. Sparks also testified that the man who took the wallet and purse was either bald or nearly bald. McDonald testified that on June 7, Whitlock was almost bald.
1. Based on conflicts in the testimony of McDonald and Evans concerning events prior and subsequent to commission of the armed robbery and aggravated assault, Whitlock contends the evidence is insufficient to support his convictions. Whitlock argues that McDonald and Evans were both accomplices in the crimes and their testimony contained too many conflicts to corroborate each other.
"In a felony case, `there can be no conviction upon the testimony of an accomplice, unless the same is corroborated by other evidence connecting the accused on trial with the perpetration of the crime, and tending to show his participation therein.' [Cit.]" Adkins v. State, 138 Ga.App. 349, 350(1), 226 S.E.2d 137 (1976).
However,
"[i]t is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. [Cits.] Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. [Cit.] The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant's guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence. [Cits.]"
Brown v. State, 232 Ga. 838, 840, 209 S.E.2d 180 (1974).
Moreover, the testimony of one accomplice may corroborate that of another. Brookshire v. State, 230 Ga.App. 418, 420, 496 S.E.2d 757 (1998). Conflicts in the testimony of the witnesses, including the State's witnesses, are a matter of credibility for the jury to resolve. Thrasher v. State, 225 Ga. App. 717-718(1), 484 S.E.2d 755 (1997).
It appears from the record that there is an insufficiency of evidence to support a finding that McDonald was a party to the armed robbery. However, corroboration of her testimony still would be needed if she became a participant in the criminal enterprise by receiving stolen property. See Selvidge v. State, 252 Ga. 243, 313 S.E.2d 84 (1984). Even if corroboration were required for this reason, Evans's and McDonald's testimony did corroborate one another as to Whitlock's guilt as each witness testified to facts and circumstances which, in themselves and independently of the testimony of the other, directly connected Whitlock to the crimes. See generally Brookshire, supra. The sufficiency of the corroborating testimony was a matter for the jury. See id. Viewed in a light most favorable to the verdict, the evidence would authorize any rational trier of fact to conclude beyond a reasonable doubt that Whitlock is guilty of the offenses charged. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
2. Whitlock charges the trial court with error in limiting his cross-examination of Evans concerning the sentences he could have received for the crimes he committed and his motivation for testifying at trial.
On direct examination, Evans testified that he pled guilty to the armed robbery and aggravated assault charges and had not made any deal with the district attorney's office. On cross-examination, Evans claimed no such deal could have been made. Before Evans could explain the reason, a bench conference was conducted at the behest of the court. During the conference, defense counsel argued that to disprove Evans's claim that there was no deal, he wanted to show *904 the jury that Evans could have received a maximum sentence of eighty years' imprisonment if he had been convicted of the four crimes charged in the indictment but was only given a minimum sentence of ten years. After extensive discussion, the court allowed counsel to show the crimes with which Evans had been charged and the counts which were dismissed, and that he received minimum sentencing for the crimes to which he pled guilty even though he could have received a substantial amount of time on the charges. The court would not let counsel inform the jury of the lengths of the minimum and maximum sentences because that would have injected into the trial the matter of the sentencing to which Whitlock was subject, thereby diverting the jury's attention from the issues of guilt or innocence.
"`"It is especially important in a case where a witness or an accomplice may have substantial reason to cooperate with the government that a defendant be permitted to search for an agreement between the government and the witness." [Cit.] ...' [Cit.]" Hines v. State, 249 Ga. 257, 260(2), 290 S.E.2d 911 (1982). Consequently, the trial court abuses its discretion when it prohibits all inquiry on the subject. Id.; see Owens v. State, 251 Ga. 313, 314(1), 305 S.E.2d 102 (1983). The trial court nonetheless retains wide latitude to impose reasonable limits on cross-examination, based on such concerns as the prevention of prejudice and of questioning on subjects that are only marginally relevant. Shaw v. State, 201 Ga.App. 456, 457, 411 S.E.2d 537 (1991) (physical precedent only), citing Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).
Here, the State's witness denied he had made a deal with the prosecutor in exchange for his testimony. The testimony Whitlock was permitted to elicit from the witness provided an ample basis for the jury to infer that such a deal had been made. Moreover, the so-called "minimum" sentence which the witness received was ten years' incarceration without possibility of parole for the only count of the indictment subject to such a requirement. The limitation imposed on Whitlock's cross-examination of the witness did not hamper his ability to challenge the witness's credibility. We find no abuse of discretion.
Judgment affirmed.
BLACKBURN, P.J., and BARNES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332707/ | 291 S.E.2d 897 (1982)
Sheila Locklear BECK, Administratrix of the Estate of Daryl Ivan Beck, Deceased
v.
CAROLINA POWER AND LIGHT COMPANY.
No. 8110SC833.
Court of Appeals of North Carolina.
June 1, 1982.
*899 Thorp, Anderson & Slifkin by Anne R. Slifkin and William L. Thorp, Raleigh, Locklear, Brooks & Jacobs by Dexter Brooks, Pembroke, for plaintiff-appellee.
Fred D. Poisson and Manning, Fulton & Skinner by Howard E. Manning, Raleigh, for defendant-appellant.
ROBERT M. MARTIN, Judge.
THE JURY CHARGE ON THE ISSUE OF NEGLIGENCE
Defendant's first argument on appeal is that the trial court failed to properly instruct the jury on the issue of negligence. The trial court instructed:
What is negligence? It's a lack of ordinary care. It's a failure to do what a reasonably careful and prudent person would have done, or the doing of something which a reasonably careful and prudent person would not have done; considering all of the circumstances existing at the time in question and on the occasion in question.
The court continued with another rule of negligence for electric utility companies:
*900 There is another rule with respect to negligence that applies to electric utility companies. The rule of negligence that I have just read to you applies to individuals. It is a proper definition of negligence. An electric utility company owes to the public the highest degree of care, not ordinary care, but the highest degree of care for the safe installation, safe maintenance and safe inspection of the electrical lines and apparatus as is commensurate with the practical operation of the business of the electric utility company.
We agree with defendant that there is no separate rule of negligence for an electric utility company. The standard is always the rule of the prudent man or the care which a prudent man ought to use under like circumstances. "What reasonable care is, of course, varies in different cases and in the presence of different conditions. [Citation omitted.] The standard is due care, and due care means commensurate care under the circumstances." Jenkins v. Electric Co., 254 N.C. 553, 560, 119 S.E.2d 767, 772 (1961).
As a general rule, power companies are held to the "utmost diligence" in striving to prevent injury to others from electricity. Keith v. Gas Co., 266 N.C. 119, 130, 146 S.E.2d 7, 15 (1966). The courts view electricity as inherently dangerous and apply a correspondingly "higher standard of care." Wake Forest University, North Carolina Tort Practice Handbook 142 (1981).
In Ellis v. Power Co., 193 N.C. 357, 137 S.E. 163 (1927), the decedent had been found dead near a path with an electrical wire in his hand. As in this case, the wire was uninsulated and the pole was found to be in an unsafe condition. No one had been seen inspecting or repairing the line. In discussing the duty of this defendant, the Supreme Court stated:
It [the wire] lay there, perhaps several days, like a serpent. The rattle-snake warns its victim, but not so with this subtle, invisible and death-producing power. It is a matter of common knowledge that this wonderful force is of untold benefit to our industrial life.... Every legitimate encouragement should be given to its manufacture and distribution for use by public utility corporations, manufacturing plants, homes and elsewhere. On the other hand, the highest degree of care should be required in the manufacture and distribution of this deadly energy and in the maintenance and inspection of the instrumentalities and appliances used in transmitting this invisible and subtle power.
Id. at 362, 137 S.E. 166.
In Jenkins v. Electric Co., supra, 254 N.C. at 560, 119 S.E.2d 772, the court reasoned:
One who installs an instrumentality for a known use, which involves a great danger to life and limb, must exercise a degree of care commensurate with the danger for the protection of those who rightfully may be subject to the peril. The duty rests upon those who make and distribute the dangerous current... Electricity is not only dangerous, even deadly, but it is invisible, noiseless, and odorless, rendering it impossible to detect the presence of the peril until the fatal work is finished. It is for this reason that the high duty is imposed, a breach of it fixes liability for the resulting injury to those to whom the duty is owed. [Citation omitted.]
In Lynn v. Silk Mills, 208 N.C. 7, 11, 179 S.E. 11, 13 (1935), the Supreme Court acknowledged the "`highest degree of care'" owed by the power company and refused to hold improper a judge's charge which stated that: "it was its [the defendant's] duty to keep a constant lookout, a constant vigilance, and to observe a high degree of care in keeping its equipment outside of the house in good condition." Id. at 12-13, 179 S.E. 14. Likewise, in Letchworth v. Town of Ayden, 44 N.C.App. 1, 4, 260 S.E.2d 143, 145 (1979), disc. rev. denied 299 N.C. 331, 265 S.E.2d 396 (1980), this Court noted: "`The danger is great, and care and watchfulness must be commensurate to it.'" (Citation omitted) See also Rice v. Lumberton, 235 N.C. 227, 69 S.E.2d 543 (1952); Willis v. Power Co., 42 N.C.App. 582, 257 S.E.2d 471 *901 (1979); and Hale v. Power Co., 40 N.C.App. 202, 252 S.E.2d 265, disc. rev. denied, 297 N.C. 452, 256 S.E.2d 805 (1979), all stating that a supplier of electricity owes the "highest degree of care" in providing for the safety of the public.
Thus the courts agree that in order for a power company to be reasonably prudent in the exercise of its business, a high degree of care must be implemented because the hazards inherent in the business are great. This understanding of the duty of power companies does not differ in any significant or prejudicial fashion from that set out by Judge Godwin. Judge Godwin's instruction merely informed the jury that the degree of care owed by a power company in maintaining and inspecting its lines is a high degree of care, which degree of care is different from ordinary care required under ordinary circumstances. Although the judge may have been slightly incorrect in stating that "another rule" applies to power companies, the defendant has made no showing that this charge, when viewed as a whole, had any prejudicial effect on the defendant's opportunity to prevail on this issue.
The defendant also protests that the court failed to couple the term "highest degree of care" with "consistent with the practical operation of its business" on every occasion on which the judge used the phrase "highest degree of care." When Judge Godwin first set forth the duty of the power company, he clearly stated that the company had "... the highest degree of care for the safe installation, safe maintenance and safe inspection of the electrical lines and apparatus as is commensurate with the practical operation of the business of an electric utility company." (Emphasis added.) Later in discussing the degree of care the judge stated, "[t]his high degree of care..." The defendant has made no showing that within the context of the charge as a whole, this omission constituted prejudicial error. In fact, the charge as given could not be deemed prejudicial because the negligence which plaintiff alleged was the failure of the defendant to abide by its own rules and regulations and the rules and regulations promulgated by the National Electrical Safety Code and given the force of law by the Utilities Commission. See Rule R8-26, Rules and Regulations of the North Carolina Utilities Commission. Thus any failure of the judge to repeat the phrase "consistent with the practical operation of its business" could have had no material impact on the outcome of this action.
The defendant's final argument concerning the jury charge is that the trial court did not give equal stress to the contentions of the defendant. This claim is without merit. Where one party presents substantially more evidence than the other, it is not error for the court's recapitulation of that party's evidence to be longer than the recapitulation of the evidence of the other party. Love v. Pressley, 34 N.C.App. 503, 239 S.E.2d 574 (1977), disc. rev. denied, 294 N.C. 441, 241 S.E.2d 843 (1978). Plaintiff presented the testimony of 19 witnesses who gave the jury information relating to the physical facts surrounding the decedent's death, medical findings, the scientific explanation for the decedent's death, the applicable standards of the industry, the worth of Daryl Beck to his family, friends and as a worker and the economic loss suffered by his family as a result of his death. Defendant's evidence consisted of three witnesses, none of whom gave testimony relevant to the plaintiff's decedent and none of whom could provide anything other than speculation as to the cause of Beck's death. By reviewing the evidence which the defendant presented and by stating that the defendant contended that plaintiff's allegations were untrue, the court adequately fulfilled its obligation to instruct the jury as to defendant's contentions.
The assignments of error based on the judge's charge are without merit and overruled. When an error in the judge's charge is asserted by the appellant as a basis for reversal of the verdict below, the burden is on that party not merely to demonstrate that the court's instructions were *902 in error, but also to demonstrate that when the judge's instructions are considered in their entirety, as opposed to in fragments, the error was prejudicial to the appealing party's chance of success and amounted to the denial of a substantial right. Otherwise, reversal or a new trial is unwarranted. Gregory v. Lynch, 271 N.C. 198, 155 S.E.2d 488 (1967); Burgess v. Construction Co., 264 N.C. 82, 140 S.E.2d 766 (1965). The defendant has failed to meet this burden.
COMPENSATORY DAMAGES
The defendant next argues that the trial court erred by admitting into evidence the testimony of Dr. J. C. Poindexter, on the prospective economic losses of the plaintiff. Dr. Poindexter, qualified as an economics expert, testified that based on the decedent's life expectancy, education, race, geographic location and sex he could project the loss of income support, reduced to present monetary value, incurred by Beck's wife Shelia and daughter Rekelle as a result of Daryl Beck's death. Dr. Poindexter testified that the figures produced through his calculations were consistent with the actual earnings received by Daryl Beck during his short work history. Dr. Poindexter pointed out that earnings of people within the statistical group which Dr. Poindexter utilized as representative of this decedent were low. In fact, in arriving at his opinion, Dr. Poindexter used computations which presumed an initial earnings figure less than that amount which Daryl Beck earned during 1978, the last year of his life. The economist testified that a loss figure of $186,245 was appropriate if Daryl Beck had worked until age 60, and that a figure of $204,037 was appropriate presuming a work life to 65. In addition, Dr. Poindexter valued the present value of Daryl Beck's projected in-home services for 10 hours per week at minimum wage, at $47,653.
The testimony of Dr. Poindexter was not improper speculation as defendant contends. The General Assembly intended the wrongful death statute to as fully as possible compensate persons for the loss of their decedent. Bowen v. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973). In allowing recovery under this statute, the North Carolina courts have recognized that, by necessity, some speculation is necessary in determining damages. In Bowen at 419, 196 S.E.2d 805-06, the court noted that monetary recovery cannot be denied simply "because no yardstick for ascertaining the amount thereof has been provided."
In Brown v. Moore, 286 N.C. 664, 673, 213 S.E.2d 342, 348-49 (1975), in discussing the monetary value of a 17 year old, the court noted that although an award of damages must not be based on sheer speculation that:
The present monetary value of the decedent to the persons entitled to receive the damages recovered will usually defy any precise mathematical computation. [Citation omitted.] Therefore, the assessment of damages must, to a large extent, be left to the good sense and fair judgment of the jury ... The fact that the full extent of the damages must be a matter of some speculation is no ground for refusing all damages. [Citations omitted.] ... "The damages in any wrongful death action are to some extent uncertain and speculative. A jury may indulge in such speculation where it is necessary and there are sufficient facts to support speculation." [Citation omitted.]
Plaintiff has presented the testimony of an expert who has predicted economic loss based on available knowledge pertaining to Daryl Beck: testimony of work supervisors, testimony regarding the decedent's skills and wage data. This testimony also was based on Dr. Poindexter's own expertise and ability to project a person's likely economic status through the use of data available in his field. Such evidence provided a reasonable basis for the computation of damages, even though the result is, at best, only approximate. It is the function of cross examination to expose any weakness in such testimony. Normally, "the lack of sufficient basis for testimony goes primarily to the weight to be accorded such evidence." Rutherford v. Air Conditioning Co., 38 N.C.App. 630, 639-40, 248 *903 S.E.2d 887, 894 (1978), disc. rev. denied 296 N.C. 586, 254 S.E.2d 34 (1979). Dr. Poindexter's testimony was properly admitted into evidence.
Furthermore, the trial court properly permitted Dr. Poindexter to give his opinion in response to a hypothetical question referring to the statistical group of persons to which Daryl Beck belonged. In examining Dr. Poindexter, plaintiff's counsel asked a hypothetical question which concluded as follows: "... do you have an opinion satisfactory to yourself as to the present monetary value or the reasonably expected net income for the statistical group of persons to which Daryl Beck belonged...." In Rutherford v. Air Conditioning Co., 38 N.C. App. at 638, 248 S.E.2d 893, the expert witness was asked if he had an opinion "as to the present monetary value of the reasonably expected net income for the statistical group of persons to which this deceased person belonged...." The defendant in Rutherford objected to this question on the ground that an expert opinion could not be based on facts, figures and statistics not in evidence. In rejecting the defendant's claim, this court noted:
The facts, figures, statistics and charts relied upon by the witness, although not offered into evidence, are customarily relied upon by persons in the profession. See generally McCormick, Evidence §§ 14-16 (2d Ed.). Based upon the better reasoned cases, such information may be relied upon by the expert regardless of whether admissible into evidence....
... [Just as a] diagnosis ... of injury is within the expertise of physicians and is based upon all reliable information which physicians consider when making such a diagnosis ... an expert in economics commonly relies upon statistics and data relating to all aspects of the work force and economy which affect the present value of the loss of future income earning capacity.
Id. at 638-39, 248 S.E.2d 893.
As in Rutherford, the materials on which Dr. Poindexter relied constituted information on which Dr. Poindexter appropriately based his expert opinion. The reports did not need to be introduced into evidence. The defendant had adequate opportunity to cross-examine the witness on these matters.
We have carefully considered defendant's remaining assignments of error regarding the compensatory damages and the testimony of Dr. Poindexter. We find these assignments to be totally without merit and thus overruled.
PUNITIVE DAMAGES
The defendant argues that the trial court erred in submitting the issue of punitive damages to the jury and that the court erred in its instruction on gross negligence as the basis for a punitive damages award. We disagree.
Our Court has stated that "[u]nder the common law of this State punitive damages may be awarded `when the wrong is done willfully or under circumstances of rudeness or oppression, or in a manner which evinces a reckless and wanton disregard of plaintiff's rights.'" Russell v. Taylor, 37 N.C.App. 520, 525, 246 S.E.2d 569, 573 (1978). "`An act is wanton when it is done of wicked purpose or when done needlessly, manifesting a reckless indifference to the rights of others.'" Siders v. Gibbs, 39 N.C.App. 183, 187, 249 S.E.2d 858, 861 (1978), citing Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 36, 37-38 (1929). An act is wilful when there exists "a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another," a duty assumed by contract or imposed by law. Brewer v. Harris, 279 N.C. 288, 297, 182 S.E.2d 345, 350 (1971), citing Foster v. Hyman, supra.
Moreover, the North Carolina wrongful death statute specifically allows the award of punitive damages upon a showing of gross negligence. N.C.Gen.Stat. § 28A-18-2(b)(5) provides for punitive damages for wrongful death caused through "maliciousness, wilful or wanton injury, or gross negligence." Although the term gross negligence is not defined in the statute, based on prior case law the inclusion *904 of gross negligence would authorize punitive damages in cases where the defendant's conduct was something less than wilful or wanton. Blanchard and Abrams, North Carolina's New Products Liability Act: A Critical Analysis, 16 Wake For.L. Rev. 171, 183-84 (1980).[1] In Clott v. Greyhound Lines, 9 N.C.App. 604, 609, 177 S.E.2d 438, 441 (1970), rev'd on other grounds, 278 N.C. 378, 180 S.E.2d 102 (1971), Judge Morris, now Chief Judge, stated that gross negligence was something less than wilful or wanton conduct. We follow this position, a position in accord with the rule in other states that gross negligence is very great negligence or the absence of even slight care.[2]
Plaintiff's evidence which tended to show numerous violations of the National Electric Safety Code and of defendant's own standards was sufficient to merit the submission of the issue of punitive damages to the jury.
The judge instructed the jury on gross negligence:
Gross negligence is an extreme departure from the ordinary standard of conduct; it is great or very great negligence; negligence materially greater than ordinary negligence, the difference being one of degree; although it is sometimes said to be of a different kind, negligence of an aggravated character and gross failure to exercise proper care.
The term implies a thoughtless disregard of consequences without exerting any effort to avoid them, an indifference to the rights and welfare of others. Gross negligence is a relative term, which is to be understood as meaning a greater want of care than is implied by the term ordinary negligence.
The plaintiff contends that she has shown by the greater weight of the evidence that the defendant, through its agents, erected pole 1998 and the attachments thereto in 1974, in violation of the safety code and in violation of its own specifications as has been set forth above; and that such conduct was negligence within itself; that the negligent condition continued continually until the day of the death of Daryl Beck; that if the defendant made appropriate inspections of the pole and attachments during the interim, it failed to note or to correct the alleged negligent condition; that Daryl Beck's death was proximately caused by such condition and that the complained of negligent conduct on the part of the defendant was willful or wanton or gross negligence.
And so, I instruct you that if you find by the greater weight of the evidence that the defendant's conduct in erecting, *905 maintaining and inspecting pole 1998 and the attachments was accompanied by such aggravating circumstances, under the instructions that I have given youas under the instructions I have given you, will permit an award of punitive damages you may award to the plaintiff an amount which in your discretion will serve to punish the defendant and deter others from committing like offenses.
We agree with plaintiff that gross negligence is a lesser degree of wrongdoing than wilful and wanton negligence. Therefore, the trial court's instructions were proper.
We have carefully examined all of defendant's assignments of error and found them to be without merit and overruled.
In the judgment of the trial court we find no error.
No error.
WHICHARD, J., concurs.
HARRY C. MARTIN, J., dissents.
WHICHARD, Judge, concurring:
The first issue raised in the dissenting opinion, that relating to the instruction on independent contractors, was not argued in defendant's brief. Assuming there was in fact error in the instruction, it was not of such magnitude, in my view, that this Court should ex mero motu make it the basis for awarding a new trial.
As to the punitive damages issue, "[i]t is a well established principle of statutory construction that a statute must be construed, if possible, so as to give effect to every part of it, it being presumed that the Legislature did not intend any of its provisions to be surplusage." State v. Williams, 286 N.C. 422, 431, 212 S.E.2d 113, 119 (1975). To treat the G.S. 28A-18-2(b)(5) phrases "willful or wanton injury" and "gross negligence" as synonymous, as does the dissenting opinion, effectively renders one or the other mere surplusage, contrary to the mandate of the foregoing rule of construction.
I believe the General Assembly intended, by use of the disjunctive in the phrase "through maliciousness, willful or wanton injury, or gross negligence," to establish three separate categories of wrongful conduct which could be found to have caused a decedent's death. By analogy to the criminal law, conduct from which a jury could find murder could fall in the category of "maliciousness," see, e.g., State v. Withers, 271 N.C. 364, 156 S.E.2d 733 (1967); conduct from which a jury could find voluntary manslaughter could fall in the category of "willful or wanton injury," see, e.g., State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971); and conduct from which a jury could find involuntary manslaughter could fall in the category of "gross negligence," see, e.g., Rummage, supra.
For the foregoing reasons, I concur in the opinion by ROBERT M. MARTIN, J.
HARRY C. MARTIN, Judge, dissenting:
This cause of action arose 1 July 1978 and resulted in a lengthy and important trial in the Superior Court of Wake County. Nevertheless, I am compelled to dissent.
The defendant expected to the following portion of the charge:
And so I instruct you that you may find that Carolina Power & Light Company, that it may be found to be negligent under the doctrine of corporate negligence; and I instruct you that if you find from the evidence and by its greater weight that the defendant corporation has itself been negligent through its agents, or independent contractors, in failing to promulgate adequate safety rules, or failing to assure proper installation, maintenance and inspection of its electrical lines, poles and apparatus in accord with its duty to exercise the highest degree of care in performing such responsibility; and that such negligence was a proximate cause of Daryl Beck's death, then you may find that the defendant is liable to the plaintiff under the doctrine of corporate negligence. (Emphasis ours.)
I find this exception to be prejudicial error. Although the particular aspect of *906 the challenged instruction discussed herein is not argued by counsel, I find the error so palpable as to require analysis by this Court. See State v. Booher, ___ N.C. ___, 290 S.E.2d 561 (1982). One of the principal acts of negligence alleged by plaintiff is that defendant did not take proper care in replacing the transformer on the pole in 1974. At that time, a new transformer was installed to increase the voltage from 7,200 to 13,200 volts. All the evidence shows that Sumter Brothers, an independent contractor, made this change under a contract with defendant.
This portion of the charge allows the jury to find defendant liable for the acts of an independent contractor. Ordinarily, an independent contractor is not liable for injuries to third parties occurring after the work has been completed and accepted by the owner. Price v. Cotton Co., 226 N.C. 758, 40 S.E.2d 344 (1946); 26 Am.Jur.2d Electricity § 54 (1966). It may be otherwise where the work done is so negligently defective as to be imminently dangerous to third persons, provided the contractor knows, or should know, of the dangerous situation created by him, and the owner does not know of the dangerous condition and would not discover it by reasonable inspection. Price, supra; Williams v. Stores Co., Inc., 209 N.C. 591, 184 S.E. 496 (1936).
The facts in this aspect of the case are similar to Texas Traction Co. v. George, 149 S.W. 438 (Tex.Civ.App.1912). In Traction Co., George was killed while installing a transformer at Traction's substation. George worked for a plumbing company that was doing the installation for the benefit of Traction and Stark Grain, Traction's customer. The court held that the plumbing company was an independent contractor and that Traction, the electric company, was not responsible for its negligence. The court further held that the installation of a transformer was not intrinsically and necessarily dangerous. Likewise, the actions of Sumter Brothers in installing the transformer for defendant were not ultra-hazardous so as to invoke liability upon defendant. Insurance Co. v. Blythe Brothers Co., 260 N.C. 69, 131 S.E.2d 900 (1963) (blasting); Evans v. Rockingham Homes, Inc., 220 N.C. 253, 17 S.E.2d 125 (1941) (open ditch); Cole v. Durham, 176 N.C. 289, 97 S.E. 33 (1918) (opening in sidewalk).
Of course, where an electric company owes a direct duty to its patron, the duty cannot be evaded and shifted to an independent contractor. This principle is illustrated in Alabama Power Co. v. Emens, 228 Ala. 466, 153 So. 729 (1934). Alabama Power generated and distributed electricity. In addition, it sold and installed electrical home appliances. It engaged an independent contractor to install a stove in plaintiff's home. A fire resulted from the negligent installation. The court held that where the power company sold and installed the electric appliance in the patron's home, it could not evade its responsibility to the patron by use of an independent contractor for the installation. The duty was a direct personal obligation from the power company to its patron. See also National Fire Ins. Co. of Hartford v. Westgate Const. Co., 227 F. Supp. 835 (D.Del.1964).
By installing the transformer through its independent contractor, Carolina Power & Light Company was not performing a direct personal duty to the deceased. Therefore, the general rule that there is no vicarious liability for the negligence of an independent contractor applies. Hendricks v. Fay, Inc., 273 N.C. 59, 159 S.E.2d 362 (1968).
The challenged instruction is also erroneous in that it would allow the jury to find defendant negligent by reason of Sumter Brothers' failing to promulgate adequate safety rules or failing to assure proper installation, maintenance and inspection of its electrical lines, poles and apparatus. There is no evidence that Sumter Brothers had a duty to promulgate adequate safety rules or to assure proper installation of the electrical facilities. These duties were obligations of the power company. The evidence of negligence as to Sumter Brothers was limited to its actions in the installing of the transformer in 1974.
I also find error in the punitive damage aspect of the case. Defendant excepted to *907 the submission of issues 4A and B to the jury. The issues, and the answers by the jury were as follows:
4. Was Plaintiff's intestate Daryl Beck killed by:
A. The willful or (APGJr) wanton negligence of Defendant Carolina Power and Light?
ANSWER: No
B. The gross negligence of Defendant Carolina Power and Light?
ANSWER: Yes
The trial court obviously believed that N.C.G.S. 28A-18-2(b)(5) (adopted 1973) (Cum.Supp.1981) required that issues based upon willful or wanton negligence and gross negligence be submitted to the jury. I find this to be error. The pertinent part of the statute reads: "(5) Such punitive damages as the decedent could have recovered had he survived, and punitive damages for wrongfully causing the death of the decedent through maliciousness, willful or wanton injury, or gross negligence."
As the majority states, gross negligence is not defined in the statute, although the statute has a section of definitions. By failing to define gross negligence for the purpose of the statute, the legislature obviously intended to adopt the meaning of gross negligence established by our Supreme Court. In addressing the question of gross negligence as a basis for punitive damages, the Court held:
References to gross negligence as a basis for recovery of punitive damages may be found in our decisions ... When an injury is caused by negligence, any attempt to differentiate variations from slight to gross is fraught with maximum difficulty....
An analysis of our decisions impels the conclusion that this Court, in references to gross negligence, has used that term in the sense of wanton conduct. Negligence, a failure to use due care, be it slight or extreme, connotes inadvertence. Wantonness, on the other hand, connotes intentional wrongdoing. Where malicious or wilful injury is not involved, wanton conduct must be alleged and shown to warrant the recovery of punitive damages. Conduct is wanton when in conscious and intentional disregard of and indifference to the rights and safety of others....
True, decisions in other jurisdictions are somewhat divergent in the statement of the applicable rule. The divergence is greater in the application to specific factual situations.
Hinson v. Dawson, 244 N.C. 23, 27-28, 92 S.E.2d 393, 396-97 (1956).
Thus, in 1956 our Court clearly established that with respect to punitive damages, gross negligence and wanton conduct are synonymous. This holding by our Court has been consistently followed in an unbroken procession of cases. Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976); Brewer v. Harris, 279 N.C. 288, 182 S.E.2d 345 (1971); Van Leuven v. Motor Lines, 261 N.C. 539, 135 S.E.2d 640 (1964); Rubber Co. v. Distributors, 253 N.C. 459, 117 S.E.2d 479 (1960); Jenkins v. Department of Motor Vehicles, 244 N.C. 560, 94 S.E.2d 577 (1956); Robinson v. Duszynski, 36 N.C.App. 103, 243 S.E.2d 148 (1978); Siders v. Gibbs, 31 N.C.App. 481, 229 S.E.2d 811 (1976); Brake v. Harper, 8 N.C.App. 327, 174 S.E.2d 74, cert. denied, 276 N.C. 727 (1970); McAdams v. Blue, 3 N.C.App. 169, 164 S.E.2d 490 (1968).
This principle is well stated by this Court, speaking through Judge Robert M. Martin, in Duszynski, supra:
Our courts have generally held that punitive damages are recoverable where the tortious conduct which causes the injury is accompanied by an element of aggravation, as when the wrong is done wilfully or under circumstances of rudeness or oppression, or in a manner evincing a wanton and reckless disregard of the plaintiff's rights.... In cases where plaintiff's action was grounded on negligence, our courts have referred to gross negligence as the basis for recovery of punitive damages, using that term in the sense of wanton conduct. Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393 (1956). In Hinson, the Court explained that *908 "[c]onduct is wanton when in conscious and intentional disregard of and indifference to the rights and safety of others."
36 N.C.App. at 106, 243 S.E.2d at 150. It is to be noted that Duszynski was a wrongful death case in which the issue of punitive damages was controlled by N.C.G.S. 28A-18-2(b)(5), as in the case sub judice.
The majority relies upon Clott v. Greyhound Lines, 9 N.C.App. 604, 177 S.E.2d 438 (1970), rev'd, 278 N.C. 378, 180 S.E.2d 102 (1971), a bailment case, in which the Court of Appeals stated: "Our Supreme Court has defined gross negligence as `something less than willful and wanton conduct.' Smith v. Stepp, 257 N.C. 422, 125 S.E.2d 903 (1962)." 9 N.C.App. at 609, 177 S.E.2d at 441. While it is true that Smith v. Stepp does contain the quoted language, it must be understood that our Supreme Court was stating the law of the Commonwealth of Virginia, not the law of North Carolina. Smith involved an automobile accident that occurred in Virginia, but the lawsuit was tried in North Carolina. The Court was concerned with the application of Virginia's guest passenger statute which required a finding of gross negligence to support recovery. The Court cited as authority for the quoted statement the Virginia case of Thomas v. Snow, 162 Va. 654, 174 S.E. 837 (1934). Furthermore, the Clott opinion by this Court was reversed by the Supreme Court. Although Duszynski did not cite or refer to Clott, it was decided subsequent to Clott and, by implication, removes any vestigial authority of Clott in this regard. The Clott decision cannot be taken as authority that the quoted statement is the law of North Carolina. Rather, Hinson v. Dawson, supra, remains the law of North Carolina.
This position with respect to punitive damages is also consistent with the philosphy expressed in Hinson that "[W]e are not disposed to expand the doctrine beyond the limits established by authoritative decisions of this Court." 244 N.C. at 27, 92 S.E.2d at 396.
Although it can be argued that under the law of Hinson the jury, by finding in its answer to issue 4A no willful or wanton conduct on the part of defendant, has foreclosed the issue of punitive damages, it is submitted that a more just result is to allow a new trial on that issue. The submission of issues 4A and B resulted in a misapplication of the law with respect to punitive damages. Only one issue should be submitted to the jury with respect to a basis for allowing punitive damages.
I vote for a new trial on all issues consistent with this opinion.
NOTES
[1] See, Clott v. Greyhound Lines, Inc., 278 N.C. 378, 180 S.E.2d 102 (1971) (as a gratuitous bailee, a carrier is liable only for gross negligence); Perry v. Seaboard Air Line Ry., 171 N.C. 158, 88 S.E. 156 (1916) (gratuitous bailee is liable only for gross negligence, which is a failure to exercise the care of an ordinary prudent person undertaking to carry the goods of another without compensation).
[2] See, e.g., Sumner v. Edmunds, 130 Cal. App. 770, 21 P.2d 159 (1933) (gross negligence is the absence of slight diligence and distinguishable from willful or wanton conduct); Sebastian v. Wood, 246 Iowa 94, 66 N.W.2d 841 (1954)(a plaintiff may recover punitive damages upon a showing of gross negligence, something greater than ordinary negligence); Storm v. Thompson, 155 Or. 686, 64 P.2d 1309 (1937)(gross negligence is the absence of care which even careless, thoughtless, or inattentive persons are accustomed to exercise). See also Smith v. Stepp, 257 N.C. 422, 125 S.E.2d 903 (1962). In Smith the North Carolina Supreme Court applied Virginia case law to Virginia's automobile guest statute. The Virginia statute imposed liability for "gross negligence or willful and wanton disregard of the safety" of a passenger. Id. at 424, 125 S.E.2d at 905. The Virginia courts had recognized gross negligence as something less than willful or wanton conduct. The North Carolina Supreme Court concluded that evidence of the defendant's lack of experience in driving a car, combined with her persistence despite plaintiff's protests, magnified the negligent character of the defendant's conduct, rendering the issue of gross negligence one for the jury. The North Carolina Court of Appeals later cited Smith as North Carolina authority for the rule that gross negligence is something less than willful or wanton conduct in Clott v. Greyhound Lines, Inc., 9 N.C.App. 604, 609, 177 S.E.2d 438, 441 (1970), rev'd on other grounds, 278 N.C. 378, 180 S.E.2d 102 (1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332678/ | 194 S.E.2d 827 (1973)
283 N.C. 94
STATE of North Carolina
v.
Homer Mack GUFFEY.
No. 10.
Supreme Court of North Carolina.
March 14, 1973.
*828 Atty. Gen. Robert Morgan and Asst. Attys. Gen. William W. Melvin and William B. Ray, for the State.
*829 Charles Lawrence James, Chapel Hill, for defendant appellant.
MOORE, Justice.
"Except in misdemeanor cases initiated in the District Court Division, no person shall be put to answer any criminal charge but by indictment, presentment, or impeachment." Constitution of North Carolina, Article I, Section 22. A defendant may be tried in superior court upon a warrant only if there has been a trial and appeal from a conviction by an inferior court having jurisdiction. G.S. § 15-137; G.S. § 15-140; State v. Evans, 262 N.C. 492, 137 S.E.2d 811 (1964).
In State v. Hall, 240 N.C. 109, 81 S.E.2d 189 (1954), this Court said that Sections 12 and 13 (now Sections 22 and 23) of Article I of the State Constitution provide, "in essence, that the superior court has no jurisdiction to try an accused for a specific misdemeanor on the warrant of an inferior court unless he is first tried and convicted for such misdemeanor in the inferior court and appeals to the Superior Court from the sentence pronounced against him by the inferior court on his conviction for such misdemeanor." State v. Cofield, 247 N.C. 185, 100 S.E.2d 355 (1957); State v. Morgan, 246 N.C. 596, 99 S.E.2d 764 (1957); State v. Thomas, 236 N.C. 454, 73 S.E.2d 283 (1952).
The district court has exclusive original jurisdiction for the trial of misdemeanors. G.S. § 7A-272. The warrant in this case charges a violation of G.S. § 20-138 and of G.S. § 20-28(b); both are misdemeanors. There are no jury trials on criminal charges in district court, but upon appeal trial de novo in superior court is by jury. G.S. § 7A-196(b); G.S. § 15-177.1.
The record in this case fails to disclose that defendant was tried, convicted and sentenced in the district court for operating a motor vehicle on a public street or highway while the operator's license issued to him was permanently revoked, a violation of G.S. § 20-28(b). To the contrary, the judgment in district court recited only that defendant pled not guilty to a charge of driving under the influence, fourth offense, and was convicted and sentenced for that offense.
The Superior Court of Orange County has no original jurisdiction in a case involving a violation of G.S. § 20-28(b), one of the offenses for which defendant was convicted in that court. The jurisdiction of the superior court in such cases is derivative, and since the record does not disclose that defendant was convicted and sentenced in district court for this offense, the Superior Court of Orange County was without jurisdiction to try him, and the trial in the superior court for that charge upon the original warrant is a nullity. State v. Evans, supra.
"In this Court, where the lack of jurisdiction is apparent, the Court may, and will, on plea, suggestion, motion or ex mero motu, stop the proceeding." State v. King, 222 N.C. 137, 22 S.E.2d 241 (1942).
It should be noted that this jurisdictional question was not raised before the able trial judge in the superior court, nor was it raised in the Court of Appeals. Hence, neither of those courts passed upon this question.
It is possible, of course, that defendant was regularly tried in the district court and was convicted on each count in the warrant but was only sentenced on the driving while intoxicated charge, in which event the district court could still impose sentence on the count charging a violation of G.S. § 20-28(b). It is also possible that he was only tried upon the driving while intoxicated count, in which event he could still be tried for a violation of G.S. § 20-28(b). We cannot speculate, however, as to what occurred in district court, but must base our decision upon the record as we *830 find it. State v. Patterson, 222 N.C. 179, 22 S.E.2d 267 (1942).
The record in this case is another example of the improper use of forms and the consequent failure to keep a full and complete record of the trial. Due to this failure, we are unable to determine that the superior court tried this defendant for a violation of G.S. § 20-28(b) under jurisdiction derived by appeal from the district courtthe only way in which such jurisdiction could have been acquired on that charge. Therefore, the judgment of the court on this count must be and is arrested.
The warrant in this case also charges defendant with operating a motor vehicle on a public street or public highway "while under the influence of intoxicating liquor, this being his fourth offense as the defendant was convicted of the third offense in the Superior Court Div., Rutherford County, on 7-3-1962." Defendant was convicted and sentenced in district court for a fourth offense. In superior court defendant was tried and convicted for a first offense of driving under the influence. Defendant now contends that upon his appeal to the superior court from the conviction and judgment pronounced by the district court for driving under the influence, fourth offense, that the trial in superior court had to be for the offense on which defendant had been convicted and that the superior court had no right to amend the warrant and try the defendant on the offense of driving under the influence, first offense. This contention is without merit. The trial court did not amend the warrant. Even if amended, the amendment would not have changed the nature of the offensedriving an automobile upon a public highway while under the influence of intoxicating liquorand would have related only to punishment. State v. Broome, 269 N.C. 661, 153 S.E.2d 384 (1967); State v. White, 246 N.C. 587, 99 S.E.2d 772 (1957); State v. Stone, 245 N.C. 42, 95 S.E.2d 77 (1956); G.S. § 20-179. A warrant charging defendant with a second or subsequent offense of driving under the influence would support a verdict of driving under the influence. State v. Stone, supra. The fact that the State did not introduce evidence of prior convictions went only to the question of punishment, enured to the benefit of defendant and was not prejudicial to him.
In addition to the questions discussed above, defendant in his petition for certiorari states: "That the defendant asks the Court to review the assignments of error brought forward by his counsel in the Court of Appeals and contends that there is merit therein." Defendant does not allege wherein the Court of Appeals erred in connection with other assignments of error brought forward by his counsel in that court. Therefore, there is nothing for us to review. State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968). Even so, we have examined these assignments and find them to be without merit.
For the reasons stated the decision of the Court of Appeals finding no error on the charge of operating a motor vehicle upon a public highway or street while under the influence of intoxicating liquor is affirmed.
The judgment on the charge of operating a motor vehicle on a public street or public highway while the operator's license issued to him was permanently revoked is arrested.
Modified and affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276147/ | 969 A.2d 127 (2009)
2009 VT 1
STATE of Vermont
v.
Na-Im ROBINSON.
No. 2007-321.
Supreme Court of Vermont.
January 16, 2009.
*128 William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney General, Montpelier, for Plaintiff-Appellee.
Matthew F. Valerio, Defender General, and Rebecca Turner, Appellate Defender, Montpelier, for Defendant-Appellant.
Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.
REIBER, C.J.
¶ 1. Defendant Na-Im Robinson appeals from the Addison District Court's denial of his motion to suppress evidence obtained upon execution of a search warrant on his vehicle. We conclude that the judge lacked probable cause to issue the warrant. Thus, we reverse.
¶ 2. On May 6, 2004, a Vermont police officer received information from a confidential informant that a twenty-six-year-old black male named "Naim" would be driving to Vermont from Pennsylvania with cocaine in his vehicle. The informant described the vehicle as a silver Ford Taurus with New Jersey license plates, and said that it would enter Vermont on Route 4 and then "probably" travel north on Route 30 toward Middlebury between 12:30 and 1:30 p.m. that day. Based on this information, the officer traveled south from Middlebury to Route 4, where he turned west toward the New York border. He soon saw a silver Taurus with New Jersey plates, driven by a young black male, traveling east. He turned around to follow the vehicle. The officer observed that the vehicle was speeding, and also saw it make an illegal pass.
¶ 3. After calling in another officer to assist, the first officer pulled the vehicle over and identified defendant as the driver. The officers informed defendant that they had reason to believe he was trafficking cocaine, which he denied. Defendant also denied consent to search the vehicle. He called his mother, a Middlebury resident, and she came to pick him up. He left his car with the officers, and they impounded the vehicle and applied for the search warrant at issue here.
¶ 4. In the affidavit in support of the search warrant, one of the officers stated that the informant "has provided me reliable and credible information in the past. I have been able to verify this [informant's] previous information and found it creditable. This [informant] is cooperating... for financial reasons and not because of current criminal charges." The affidavit, which was typed, also had a handwritten addendum stating that "[t]he information this [informant] has provided has concerned Addison County cocaine deals, their customers, addresses, and vehicles that they are driving. I have been able to confirm that this information was accurate." Based on the affidavit, the court found probable cause to issue a search warrant for the car and any containers *129 therein. Upon executing the warrant, the officers found eighteen plastic baggies containing a total of approximately ten ounces of cocaine in a suitcase in the trunk, along with drug paraphernalia.
¶ 5. Defendant moved to suppress the evidence obtained in executing the search warrant on the basis that the affidavit in support of the warrant established neither the informant's reliability nor the basis of his or her knowledge. The trial court denied the motion, finding that the affiant's statement, although it did not contain "great detail," was sufficient to conclude that the informant had provided reliable information in the past.
¶ 6. Our review of the trial court's finding of probable cause is deferential. State v. Goldberg, 2005 VT 41, ¶ 8, 178 Vt. 96, 872 A.2d 378. "Generally, probable cause exists when the affidavit sets forth such information that `a judicial officer would reasonably conclude that a crime had been committed and that evidence of the crime will be found in the place to be searched.'" Id. (quoting State v. Morris, 165 Vt. 111, 129, 680 A.2d 90, 102 (1996)). We view the affidavits in support of probable cause in a "common sense manner" and do not subject them to "hypertechnical scrutiny." State v. Defranceaux, 170 Vt. 561, 562, 743 A.2d 1074, 1075 (1999) (mem.) (internal quotations and citation omitted). When, as in this case, the finding of probable cause rests on hearsay incorporated into an affidavit, we employ the two-part approach codified in Vermont Rule of Criminal Procedure 41.[1] The rule requires that there be "a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished." V.R.Cr.P. 41(c).
¶ 7. Defendant argues that the affidavit in this case did not meet either the credibility requirement or the factual-basis requirement. We agree that the affidavit was insufficient to establish the credibility Rule 41 requires.
¶ 8. Credibility may be established "in either of two ways: (1) by demonstrating [the informant's] inherent credibility as a source; or (2) by demonstrating the reliability of the information he or she has provided on the occasion in question." Goldberg, 2005 VT 41, ¶ 11, 178 Vt. 96, 872 A.2d 378. Defendant contends that the affidavit did not establish the informant's inherent credibility because the affiant's statements about the informant's past performance were so "conclusory" and "vague" as to prevent the judge from making an "independent judicial determination" of the informant's credibility. See Aguilar, 378 U.S. at 114-15. Instead, defendant contends, the court had to rely solely upon the officer's assessment of credibility. We agree with defendant that the information available to the judge was *130 insufficient to allow the independent credibility assessment our law requires.
¶ 9. An informant's inherent credibility is often established by evidence that he or she has provided accurate information in the past. Morris, 165 Vt. at 130, 680 A.2d at 102-03. There is a split in the state and federal courts as to whether an officer's bare assertion that an informant is "credible" or "reliable," or that the information provided was "true" or "correct," is sufficient to support a finding of inherent credibility. See 2 W. LaFave, supra, § 3.3(b), at 123 nn. 99-112 (citing cases). There is broad agreement, however, that an affiant's statement that an informant has provided information leading to arrests, convictions, or the discovery of admissible evidence does suffice to show inherent credibility. Id. at 121, 680 A.2d 90; see also, e.g., McCray v. Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) (expressing "no doubt" that there was probable cause for warrant based on officer's testimony that informant had provided information resulting in numerous convictions of named individuals); United States v. Formaro, 152 F.3d 768, 770 (8th Cir.1998) (informant's credibility established by affiant's recitation that informant "had supplied information fifteen times and the information had led to two search warrants, four arrests and five drug charges").[2] Here, the situation is somewhere between these two extremes. As noted, the officer stated that the informant:
has provided me reliable and creditable information in the past. I have been able to verify this [informant's] previous information and found it creditable.... The information this [informant] has provided has concerned Addison County cocaine deals, their customers, addresses and vehicles that they are driving. I have been able to confirm that this information was accurate.
This statement amounts to something more than a bare assertion of reliability, and presents a close question. The officer affirmed that the informant's past information had "concerned" illegal activities, but did not aver that the information had led to convictions, arrests, evidence, or even search warrants. It will be useful to review the cases from the several other jurisdictions that, like Vermont, still apply the Aguilar/Spinelli standard, as well as the United States Supreme Court's pre-Gates cases.
¶ 10. In Alaska, the courts require more than a mere assertion that an informant has provided reliable information in the past. Clark v. State, 704 P.2d 799, 804 (Alaska Ct.App.1985). Rather, the affidavits must aver that the informant's past information resulted in particular arrests or convictions. Schmid v. State, 615 P.2d 565, 575 (Alaska 1980) (informant worked with police for four years and had provided information resulting in ten seizures of narcotics). In Massachusetts, even a statement that an informant had "previously provided information which led" to the arrest of a named individual was held insufficient, because the affidavit failed to specify what sort of information the informant had provided, or how that information was connected to the arrest. Commonwealth *131 v. Rojas, 403 Mass. 483, 531 N.E.2d 255, 258 (1988).
¶ 11. There is some authority for the proposition that an affidavit like this is sufficient to establish credibility, but we do not find it persuasive. In Washington, a line of cases seems to suggest that bare assertions that an informant has given reliable information in the past are sufficient to allow a magistrate to make an independent assessment of credibility. See State v. Smith, 110 Wash.2d 658, 756 P.2d 722, 726 (1988) (en banc); State v. Woodall, 100 Wash.2d 74, 666 P.2d 364, 366 (1983) (en banc). But the Washington cases that arguably suggest that affiants' conclusions about credibility are sufficient all misrepresent the facts and reasoning of the earlier case on which they rely, omitting to mention that the affidavit in that case, in addition to stating that the informant was "reliable" and had given "true and correct" information in the past, stated that the informant had made controlled drug purchases as well. See State v. Fisher, 96 Wash.2d 962, 639 P.2d 743, 746 (1982) (en banc). We are not persuaded by the rather pro-forma analysis in the cases purporting to apply Fisher.
¶ 12. The pre-Gates cases from the United States Supreme Court also support the conclusion that the affidavit here did not establish probable cause. Most closely on point is Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In that case, the Court held that an informant's credibility was established, and the issuance of a warrant proper, because the affiant stated not only that the informant had provided accurate information in the past, but also that the defendant was known to the police as a narcotics user, and that the informant's information was corroborated by other sources. Id. at 271, 80 S.Ct. 725. Here, the confidential informant was the only source of the information relied on by the affiant, defendant was otherwise unknown to the police, and there were no other indicia of credibility. The judge here was not informed, as Aguilar and our cases require, "of the underlying circumstances from which the officer concluded that the informant ... was `credible' or his information `reliable.'" Aguilar, 378 U.S. at 114, 84 S.Ct. 1509 (emphasis added). As the Aguilar Court noted, conclusory affidavits present the spectreoffensive to constitutional guaranteesthat "`the inferences from the facts which lead to the complaint' will be drawn not `by a neutral and detached magistrate' ... but instead, by a police officer `engaged in the often competitive enterprise of ferreting out crime.'" Id. at 115, 84 S.Ct. 1509 (quoting Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), and Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948)).
¶ 13. Indeed, the information in the affidavit here is similar to language disapproved under the Aguilar/Spinelli framework by the United States Court of Appeals for the Fifth Circuit in United States v. Acosta, 501 F.2d 1330 (5th Cir. 1974). The affidavit in Acosta stated that the informant had "on other occasions assisted Federal Agents in initiating cases" but provided no detail as to the nature of that assistance. Id. at 1331. The Acosta court held this language insufficient to establish reliability because it said "nothing about whether the cases thus initiated were successfully prosecuted, whether they were based on information supplied by the informant, or if so, whether the information proved to be accurate." Id. at 1332. Here, the affidavit is similarly vague as to the nature of the past information purportedly provided by the informant, and left the judge equally unable *132 to make an independent evaluation of the facts underlying the officer's determination that the informant was credible. "`The "reliable information in the past" recital ... lacks any factual indication of how reliable the informer is. The magistrate is, in effect, relying upon the factual determination of the arresting officer that the informer is sufficiently reliable, and not upon his own independent judicial determination.' " 2 W. LaFave, supra, § 3.3(b), at 125 (quoting Comment, 53 Cal. L.Rev. 840, 846 (1965)).
¶ 14. Although the affidavit here did provide more information than that in Aguilar, the additional information did little or nothing to allow the judge independently to draw the inference that the informant was credible and that illegal drugs were therefore likely to be found in defendant's vehicle. The mere statement that the informant had in the past provided unspecified, albeit purportedly "creditable," "accurate," or "reliable" information that "concerned" drug deals or dealers does not establish the informant's inherent credibility.
¶ 15. The State also contends, however, that the affidavit established that the informant's information on this particular occasion was credible, even if the affidavit was insufficient to show the informant's inherent credibility. The State's argument on this point is that the information provided herenamely, that defendant would be driving a silver Ford Taurus on a specified highway at a specified timewas sufficiently corroborated by police "to the point where it [was] reasonable for them to rely on it as accurate." Morris, 165 Vt. at 130, 680 A.2d at 102-03.[3] While we agree with the State that predictive information could, in a different case, provide such a wealth of detail about future behavior as to be effectively self-verifying, this is not such a case.
¶ 16. Our recent decision in State v. Goldberg is instructive on this point. In that case, an informant seeking leniency on an unrelated criminal charge was cooperating with police in a drug investigation. The informant told the officer that marijuana was being grown in a specified house by certain named individuals. The officer "corroborated" the allegations by driving by the house and by determining, via a DMV records check, that some of the named persons lived in the house. The officer observed no suspicious activity during his drive-by surveillance. We held that the corroboration of mere innocent details did not prove that the informant's allegations of drug offenses were reliable. 2005 VT 41, ¶ 14, 178 Vt. 96, 872 A.2d 378. We noted that, while the officer's efforts "did corroborate some of the peripheral details of [the informant's] story, [they] did nothing to confirm the allegations of criminal conduct." Id. (emphasis added). "Overall," we noted, "the affidavit provided little evidence that [the officer] had corroborated [the informant's] information about the marijuana growing operation." Id.
¶ 17. Cases in other jurisdictions on more similar facts support this conclusion. The Supreme Court of Appeals of West Virginia concluded, in State v. Hlavacek, that probable cause was not established by the mere corroboration that the defendant's vehicle was proceeding down a well-traveled highway in a direction consistent with the informant's allegation. 185 W.Va. *133 371, 407 S.E.2d 375, 382 (1991). The court held that, although "[i]ndependent police work may corroborate information contained in an affidavit," the corroborated details "must be both significant and specific in order to ... impart some degree of reliability upon the confidential source of the information." Id. In Hlavacek, the court noted, the corroboration "consisted of nothing more than ... that the appellant was not at home and then later [that he was] driving on a nearby well-travelled highway in a direction which happened to be consistent with the informant's information." Id.
¶ 18. Similarly, the New Jersey Supreme Court, applying the Gates standard but acknowledging the continued vitality of Aguilar and Spinelli, has required corroboration of more than mere innocent details. See State v. Smith, 155 N.J. 83, 713 A.2d 1033, 1040-41 (1998). The Smith court held that probable cause was absent because the police had corroborated nothing more than "neutral information" concerning the defendant's description and location. Id. at 1041. In Smith, the informant told the officer that the defendant would be going in and out of the lobby of his building making drug sales, but the officer observed only that the defendant was standing outside the building. The court noted that "the police corroboration did not include the observation of any suspicious drug transaction or criminal activity." Id. Here, as in Smith, the "police corroboration only of the suspect's description and location did not bolster the tip's reliability or add to its weight." Id. The information corroborated in our case was not "significant" or "specific," Hlavacek, 407 S.E.2d at 382, and thus was insufficient to support a finding of probable cause.[4]
¶ 19. Accordingly, the search warrant should not have issued, and the motion to suppress the evidence obtained via its execution should have been granted. As in Goldberg, the application of the exclusionary rule here "encourages police to diligently corroborate information from a potentially unreliable source." Goldberg, 2005 VT 41, ¶ 19, 178 Vt. 96, 872 A.2d 378. Because we conclude that the affidavit did not provide a sufficient basis to conclude that the confidential informant was credible, and that conclusion is dispositive of the appeal, we do not reach defendant's argument that the affidavit also failed to demonstrate the basis of the informant's knowledge.
Reversed and remanded.
NOTES
[1] The test embodied in the rule is based on two United States Supreme Court cases, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). See Reporter's Notes, V.R.Cr.P. 41; State v. Morris, 165 Vt. 111, 129, 680 A.2d 90, 102 (1996). The United States Supreme Court has since abandoned Aguilar and Spinelli in favor of the "totality of the circumstances" analysis propounded in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Gates has been widely criticized, and many other state courts have declined to follow it as a matter of state law. See generally 2 W. LaFave, Search & Seizure § 3.3(a), at 106 n. 26 (4th ed.2004) (citing state cases); id. at 107-13 (criticizing Gates, citing critical commentary). We need not consider whether we would follow Gates as a matter of Vermont constitutional law because the governing Rule of Criminal Procedure continues to contain the Aguilar and Spinelli requirements.
[2] We considered the question of what level of past performance would suffice to show credibility in State v. Maguire, 146 Vt. 49, 498 A.2d 1028 (1985), but in that case we applied the totality-of-the-circumstances analysis from Gates because the defendant failed to preserve his arguments based on the Vermont Constitution and, apparently, Rule 41. We had no difficulty concluding that the Maguire informant's past information, which had led to numerous controlled drug purchases, arrests, and search warrants that had been upheld on appeal, was sufficient to establish credibility. Id. at 54, 498 A.2d at 1031.
[3] The State does not argue that the informant's statements on this occasion were credible by reason of being against his or her penal interest. Cf. State v. Ballou, 148 Vt. 427, 435 n. 3, 535 A.2d 1280, 1284 n. 3 (1987) (fact that informant's statement to affiant was against informant's penal interest had bearing on judge's assessment of informant's reliability).
[4] We note finally that several of the cases cited by the State on this point are reasonable-suspicion cases, and thus have little application to this case, which concerns the higher probable-cause standard. See State v. Cunningham, 2008 VT 43, 183 Vt. 401, 954 A.2d 1290; State v. Crandall, 162 Vt. 66, 644 A.2d 320 (1994). We express no opinion on whether the facts here sufficed to establish reasonable suspicion, but note that it is entirely possible that a confidential informant's tip might provide a reasonable suspicion to support an initial stop, but not probable cause for a search or arrest. See, e.g., United States v. Campbell, 920 F.2d 793, 797 (11th Cir.1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276161/ | 57 Cal.Rptr.3d 233 (2007)
149 Cal.App.4th 581
In re IMRAN Q., a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
Imran Q., Defendant and Appellant.
No. B188613.
Court of Appeal of California, Second District, Division Eight.
April 9, 2007.
As Modified April 18, 2007.
*234 Anne E. Fragasso, San Diego, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth N. Sokoler and Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, J.
Imran Q. appeals from the juvenile court's order that he pay $17,958.13 in restitution to Joseph Iaquinto. We remand this matter to the juvenile court for it to recalculate the restitution amount.
FACTS AND PROCEDURAL HISTORY
In April 2003, then 16-year-old appellant Imran Q. fled from a car accident in which he injured Joseph Iaquinto. Appellant later admitted in juvenile court to one count of hit and run with an injury and one count of hit and run with property damage. The court declared appellant a ward of the court and sentenced him to home on probation. It also ordered him to pay $57,499.74 in restitution to Iaquinto for his economic losses, consisting of medical expenses, property damage, and lost income.[1]
Appellant eventually settled Iaquinto's personal injury lawsuit against him for $100,000, the policy limit of appellant's insurance coverage.[2] Iaquinto's attorney received $29,229.13 in fees and costs off the top of the settlement, meaning Iaquinto netted $70,770.87 from his lawsuit. Iaquinto thereafter moved to recover as further restitution the fees and costs he paid to his attorney to achieve the settlement. In addition, Iaquinto asked the court to award him the $2,000 he owed to the attorney *235 handling his motion for additional restitution.
The court concluded Iaquinto's total economic losses from the car accident were $88,728.87, an amount the court apparently reached by adding the $29,229.13 in fees and costs from the settlement and the $2,000 for the restitution hearing plus Iaquinto's initial economic losses of $57,499.74. Noting that Iaquinto's net recovery from his settlement with appellant was $70,770.87, the court found Iaquinto had not been compensated for the $17,958 difference between his $88,728.87 in economic losses and $70,770.87 in net settlement proceeds. The court therefore ordered appellant to pay Iaquinto $17,958.13 in additional restitution.[3] This appeal followed.
DISCUSSION
The Legislature intends that crime victims receive full restitution for their "economic loss[es]." (Welf. & Inst.Code, § 730.6, subd. (a) [juvenile offenders]; Pen.Code, § 1202.4 [adult criminals].) From the car accident and its immediate aftermath, Iaquinto suffered $57,499.74 in economic losses for his medical bills, property damage, and lost earnings. Appellant does not dispute Iaquinto's right to restitution of those losses. After suing appellant, Iaquinto received $100,000 in settlement from which he paid his attorneys $31,299.13[4] in legal fees and costs, for which the court also ordered restitution. Appellant contends Iaquinto may not receive restitution for those fees and costs. We disagree.
Welfare and Institutions Code section 730.6 (§ 730.6) authorizes a court to order a juvenile to pay restitution to compensate a victim in:
"... a dollar amount sufficient to fully reimburse the victim ... for all determined economic losses incurred as the result of the minor's conduct ... including all of the following: [¶] (1) ... value of stolen or damaged property.... [¶] (2) Medical expenses. [¶] (3) Wages ... lost due to injury..." (Italics added.)
Appellant contends Iaquinto's attorney's fees and costs were not recoverable for two reasons. First, according to appellant, section 730.6 does not include legal fees and costs in its list of compensable economic losses. Second, even if fees and costs counted as economic losses, appellant's $100,000 settlement payment more than satisfied Iaquinto's economic losses of $88,728.87.
This very division of the Second Appellate District found in In re Johnny M. (2002) 100 Cal.App.4th 1128, 123 Cal. Rptr.2d 316, that section 730.6's definition of "economic losses" is expansive. Specifically, In re Johnny M. noted that the italicized statutory language quoted above"including all of the following"is a phrase of enlargement, meaning the categories of economic losses explicitly identified in the statute are not exhaustive. (Id. at pp. 1135-1136, 123 Cal.Rptr.2d 316.) For guidance in interpreting "economic losses" in section 730.6, In re Johnny M. looked to the parallel adult restitution statute, Penal Code section 1202.4. (Id. at p. 1132, 123 Cal.Rptr.2d 316; see also People *236 v. Birkett (1999) 21 Cal.4th 226, 240 fn. 15, 87 Cal.Rptr.2d 205, 980 P.2d 912 [adult restitution statute reflects "parallel restitutionary requirements for juvenile offenders"].)
Penal Code section 1202.4 permits a court to order restitution of legal fees and costs that a victim incurred to collect restitution. (Pen.Code, § 1202.4, subd. (f)(3)(H) ["actual and reasonable attorney's fees and other costs of collection"].) We see no reason to distinguish between an adult's and juvenile's duty to provide full restitution to their victims. (People v. Martinez (2005) 36 Cal.4th 384, 394, fn. 2, 30 Cal.Rptr.3d 779, 115 P.3d 62 citing with approval In re Johnny M., supra, 100 Cal.App.4th 1128, 123 Cal.Rptr.2d 316 ["[S]ection 730.6[, which is applicable to juvenile offenders,] parallels Penal Code section 1202.4, which governs adult restitution."].) We thus find section 730.6's silence on attorney's fees and costs a mere legislative oversight. (Accord In re Johnny M., supra, [Legislature's failure to amend juvenile restitution statute's list of economic losses from "including all of the following" to "including, but not limited to, all of the following" when it so amended adult restitution statute was "merely legislative oversight"].) Consequently, in order to ensure Iaquinto receives full restitution for his economic losses from the accident, the juvenile court did not abuse its discretion when it ordered appellant to pay additional restitution for the legal fees and costs Iaquinto incurred to collect restitution. (In re Johnny M., supra, at p. 1132, 123 Cal.Rptr.2d 316 [restitution order reviewed for abuse of discretion].)
In calculating Iaquinto's total economic losses, the court determined he could recover all of his legal fees and costs as restitution. The court's unstated premise in awarding the entire amount was that Iaquinto incurred those fees and costs solely to collect restitution. That premise ignores that some portion of Iaquinto's $100,000 settlement was likely for his pain and suffering. The restitution statutes do not authorize restitution for legal fees incurred to recover general damages, only those incurred to collect restitution. (Pen.Code, § 1202.4, subd. (f)(3)(H).) The record does not show allocation of the settlement between economic damages supporting restitutionmedical expenses, property damage, and lost incomeand pain and suffering, which do not support restitution. Only attorney's fees and costs attributable to the former are properly subject to a restitution order. For example, if 70 percent of the settlement reflected payment of economic damages then, in the absence of any other facts, it would be appropriate to allocate 70 percent of the fees and costs to economic damages, which amount could be subject to restitution. We recognize that many settlements do not formally identify the economic and non-economic components of the parties' agreement. That is beside the point, as trial courts enjoy significant discretion in setting the amount of restitution (People v. Boudames (2006) 146 Cal.App.4th 45, 53, 52 Cal.Rptr.3d 629) and frequently have to make judgment calls in this area in the absence of a complete record.
We remand to the trial court to determine the allocation, if any, of the settlement between those categories. Based on that determination, the trial court shall enter a new restitution order for attorney's fees and costs equal to the pro rata share of the $100,000 settlement allocated to Iaquinto's losses for medical expenses, property damage, and lost income.
DISPOSITION
The restitution order of December 28, 2005, is reversed and the matter is remanded *237 to the trial court to recalculate the pro rata share of attorney's fees and costs for which appellant must provide restitution.
COOPER, P.J., and FLIER, J., concur.
NOTES
[1] Some confusion exists in the record about the amount of the restitution order, which-is not in the record. The probation report states it was $58,649.73. At the end of the hearing at issue in this appeal, the juvenile court stated the amount was $58,704.78. We conclude it was in fact $57,499.74 because that number makes the court's later mathematical calculations work.
[2] A second defendant also settled with Iaquinto for $15,000, but payment from sources independent of appellant do not affect his restitution obligations. (People v. Hamilton (2003) 114 Cal.App.4th 932, 941-942, 8 Cal. Rptr.3d 190.) Accordingly the juvenile court correctly disregarded this second settlement in analyzing appellant's restitution obligations.
[3] During the hearing, the parties sometimes discussed amounts of money in round figures, and sometimes to the exact penny. From those discussions, we cannot immediately discern the court's reason for adding 13 cents, but we accept that addition because the court incorporated it into its final order.
[4] Of that amount, $29,299.13 went to the personal injury attorney and $2,000 went to the attorney handling the restitution request. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332726/ | 291 S.E.2d 873 (1982)
STATE of North Carolina
v.
Steve Edward HALL.
No. 8126SC1072.
Court of Appeals of North Carolina.
June 1, 1982.
*875 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Wilson Hayman, Raleigh, for the State.
Appellate Defender Adam Stein by Asst. Appellate Defender Marc D. Towler, Raleigh, for defendant-appellant.
ARNOLD, Judge.
Defendant first argues that the trial judge erred in refusing to submit to the jury his requested instruction that he would not be guilty of larceny if he believed the property had been abandoned. Defendant is correct that property which has been abandoned by the owner cannot be the subject of larceny. See, State v. Hathaway, 150 N.C. 798, 63 S.E. 892 (1909). The owner of personal property may relinquish his ownership by abandoning the property and thereafter title passes to the first person who next takes possession. The party relying on the defense of abandonment must affirmatively show by clear, unequivocal and decisive evidence the intent of the owner to permanently terminate his ownership of the disputed property. State v. West, 293 N.C. 18, 235 S.E.2d 150 (1977).
We do not believe the evidence presented in this record would support an instruction on abandoned property. A mere eight days after defendant saw the building in question damaged by fire, he was found carrying away personal property from that building which had been boarded up and posted. The mere fact that defendant observed other people in the building after the fire, along with contradictory evidence of the physical condition of the personal property, is not enough to create a basis for the legitimate belief that the property had been abandoned. Where specific instructions requested are not supported by the evidence, the trial judge does not error in failing to give such instructions verbatim or in substance. State v. Parrish, 2 N.C.App. 587, 163 S.E.2d 523 (1968), rev'd on other grounds, 275 N.C. 69, 165 S.E.2d 230 (1969).
Defendant next contends the trial judge erred in refusing to permit him to further question James Kaperonis after cross-examination by voir dire with respect to the insurance that he had on the building and its contents in an effort to determine whether he was fully compensated for the contents, and to determine whether the contents of the building had any remaining value after the fire. Although other grounds for error in the court's ruling are brought forward in appellant's brief, since these were not advanced during the trial to be ruled upon by the trial judge, we do not reach these arguments for decision on appeal. State v. Wilson, 237 N.C. 746, 75 S.E.2d 924 (1953).
We find no reversible error in the court's ruling on the ground which was offered at trial. Defendant is correct that the better practice is for the trial judge to allow counsel to make an offer of proof when requested. State v. Stanfield, 292 N.C. 357, 233 S.E.2d 574 (1977). However, *876 where the evidence is immaterial or substantially appears elsewhere in the record, there is no prejudicial error. State v. Chapman, 294 N.C. 407, 241 S.E.2d 667 (1978). The "market value" of a stolen item is the criterion used to determine the worth of personal property which was the subject of a larceny. State v. Dees, 14 N.C.App. 110, 187 S.E.2d 433 (1972). Here, Mr. Kaperonis testified that the stainless steel trays found in defendant's possession had a value of $30 to $60 each. Also defendant himself introduced into evidence his former statement to the police that he had taken the pots and pans in order to sell them for scrap metal at an aluminum plant. The extent of fire insurance obtained prior to the fire was immaterial to the issue of whether the property had any value. Furthermore, this issue was substantially answered elsewhere in the evidence. We find no error in the trial judge's ruling.
Defendant argues that the court erred in denying his motion to dismiss where the evidence of ownership was at variance from the allegation of ownership in the charging warrant. We do not agree. In pertinent part, the warrant read as follows:
And on or about the 27th day of OCTOBER, 1980, in the county named above, the defendant named above after having unlawfully, willfully, and feloniously broken into and entered a building occupied by THE CABARET, PRIVATELY OWNED BY JAMES P. KAPERONIS used as PLACE OF BUSINESS located at 3519 WILKINSON BLVD., CHARLOTTE, N.C. with the intent to commit the felony of larceny, did unlawfully, willfully, and feloniously steal, take and carry away STAINLESS STEEL POTS AND PANS (KITCHEN UTENSILS) the personal property of THE CABARET having a value of $200.00 dollars in violation of G.S. 14-72.
We find no fatal variance. At trial, James Kaperonis testified that he was the owner of the building called the Cabaret Club and the property inside of that building. Since the warrant states in the same sentence that the stolen goods were "the personal property of THE CABARET" and that the Cabaret was "PRIVATELY OWNED BY JAMES P. KAPERONIS [and] used as a PLACE OF BUSINESS located at 3519 WILKINSON BLVD., CHARLOTTE, N.C.," we cannot see how defendant was misled as to the ownership of the property in question or in any way hampered in his defense. State v. Greene, 289 N.C. 578, 223 S.E.2d 365 (1976).
Similarly, we also find no merit in defendant's argument that the warrant was defective because it did not allege ownership in a natural person or a legal entity capable of owning property. The warrant refers to the owner of the stolen property as "the Cabaret" which was described as "privately owned by James P. Kaperonis," obviously alleging a proprietorship capable of owning property. We find no error.
No error.
CLARK and WEBB, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332653/ | 127 Ga. App. 560 (1972)
194 S.E.2d 330
SAVANNAH ICE DELIVERY COMPANY et al.
v.
AYERS.
47576.
Court of Appeals of Georgia.
Argued October 2, 1972.
Decided November 15, 1972.
Bouhan, Williams & Levy, James M. Thomas, for appellants.
Duffy & Degenhardt, Walter P. Degenhardt, for appellee.
STOLZ, Judge.
This is an appeal from the trial court's judgment overruling the defendant's motion for judgment n.o.v. and motion for new trial. Held:
1. The first contention by the appellants is that the uncontradicted evidence shows that the plaintiff-appellee could have avoided the collision in question and his resulting *561 personal injuries by the exercise of ordinary care. "It is well-settled law that questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one's protection ordinarily are to be decided by a jury, and a court should not decide them ... except in plain and indisputable cases." Anderson v. Wilson, 114 Ga. App. 19, 21 (150 SE2d 172) and cit.; Gordon v. Carter, 126 Ga. App. 343, 345 (190 SE2d 570) and cit. Judgment n.o.v. can be granted only "[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict ..." Code Ann. § 81A-150 (a, b) (Ga. L. 1966, pp. 609, 656, as amended); Ownes v. Georgia Power Co., 229 Ga. 281 (190 SE2d 897). There was evidence in the record that the defendant's truck was four feet over on the plaintiff's side of the road. The evidence, though conflicting, supports the verdict. Enumerations of error 1, 2, and 3 are without merit.
2. The trial judge did not err, as contended in enumerated error 4, in admitting in evidence, over the objection that it was used merely for illustrative purposes, a diagram of the accident scene, on which there were markings of witnesses indicating the positions of vehicles, the plaintiff's person, etc. Diagrams, drawings, or sketches, shown by the testimony to be correct, are admissible. Green, Georgia Law of Evidence, § 83; Clarke County School District v. Madden, 99 Ga. App. 670, 676 (110 SE2d 47) and cit.; Rouse v. Fussell, 106 Ga. App. 259, 263 (126 SE2d 830). In this case the diagram was drawn by a registered land surveyor, who testified, subject to cross examination, authenticating its accuracy. All of the markings were made in open court by witnesses who were also subject to cross examination. Furthermore, "[e]vidence, the admissibility of which is doubtful, should be admitted and its weight left to the determination of the jury." Green v. State, 112 Ga. App. 329 (4) (145 SE2d 80).
3. It was not error, as contended in enumerated error 5, *562 to charge the provisions of Code § 38-1806, including those on impeachment of witnesses for "general bad character or for contradictory statements out of court," where appellant Fountain made two statements under cross examination which could be found to be contradictory of statements previously made in a deposition.
4. The judge's charge as to loss of future earnings as an element of damages, even if erroneous, was corrected by his subsequent instruction to disregard the earlier charge and allowing a finding of damages for diminished capacity to labor and to work, an element of pain and suffering, of which there was evidence. Enumerated errors 6 and 7 are without merit.
5. The $30,000 verdict was not excessive, as urged in enumerated error 8, in view of the evidence of the defendant's liability, as stated in Division 1 hereinabove, and evidence of the plaintiff's total disability for 13 months, loss of at least $5,600 in earnings, $1,483.50 doctor's fee, $1,774.55 hospital and other medical expenses, $15 wrecker fee, approximately $700 motorcycle repair charge, plus extensive pain and suffering, including permanent decreased capacity to earn and labor.
Judgment affirmed. Bell, C. J., and Evans, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332684/ | 260 S.C. 58 (1973)
194 S.E.2d 186
Arnold B. GARBADE, as Executor of the Last Will and Testament of Pansie S. Garbade, Appellant,
v.
Donald H. GARBADE, Jr., et al., Respondents.
19553
Supreme Court of South Carolina.
January 18, 1973.
Messrs. Walker & McKellar, of Ridgeland, for Appellant.
*59 Messrs. Luke N. Brown, Jr., and Gary D. Brown, of Ridgeland, and Donald B. Barkowitz, W. Turner Logan, and Michael Gardner, of Charleston, for Respondents.
January 18, 1973.
BRAILSFORD, Justice:
This is an appeal from the trial in the Court of Common Pleas for Jasper County of the issue of will or no will with respect to a writing dated January 20, 1971, purporting to be the will of Pansie S. Garbade, who died of cancer on the third day after the execution of the paper. The question of whether Mrs. Garbade possessed testamentary capacity was submitted to the jury and answered in favor of the contestants. The proponent has appealed on the sole ground that "there was no competent evidence to show that Pansie S. Garbade lacked the mental capacity to execute a Will on January 20, 1971."
*60 Of the three subscribing witnesses, only Mrs. Garbade's physician took the stand. He testified that the will was signed at about 8:30 A.M. on January 20, and that his patient was mentally competent at that time. He testified that Mrs. Garbade did not read the will and that it was not read to her; but he inquired "whether she knew what she was signing and whether she knew the contents of it," to which she replied, "yes."
On the other hand, eight lay witnesses (three of whom were contestants), who knew Mrs. Garbade well and were closely connected with her by blood or marriage or long friendship, and who saw her on January 19 and 20 (except for one who saw her only on the 19th), testified, in effect, that after January 18 she was comatose and unable to recognize them or respond to their presence in any way. All of these witnesses expressed the opinion that Mrs. Garbade lacked sufficient mental capacity to understand what she was doing when the will was signed. The testimony of these lay witnesses was competent on the issue, 57 Am. Jur., Wills, Sec. 128 (1948), and was admitted without objection.
A will contest for lack of testamentary capacity raises a purely legal issue which contestants are entitled to have submitted to the jury if there is any evidence tending to support the challenge. The abundant evidence here as to Mrs. Garbade's condition before and after the purported will was signed was sufficient to raise an inference of incapacity at the critical time. Therefore, the verdict of the jury is conclusive.
In the order for judgment on the verdict, the proposed will is declared to be a nullity and Mrs. Garbade is declared to have died intestate. Appellant objects upon the ground that an earlier will exists which he is entitled to offer for probate. We construe the order as declaring that Mrs. Garbade died intestate insofar as the purported will involved in this case is concerned, without affecting appellant's rights *61 under any other will. Since during oral argument counsel for contestants expressly agreed with this construction, the matter need not be further noticed.
Affirmed.
MOSS, C.J., and LEWIS, BUSSEY and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332680/ | 127 Ga. App. 566 (1972)
194 S.E.2d 282
ARGONAUT INSURANCE COMPANY et al.
v.
KING et al.
47637.
Court of Appeals of Georgia.
Submitted November 8, 1972.
Decided November 15, 1972.
Savell, Williams, Cox & Angel, Lawson A. Cox, II, for appellants.
Thomas M. Jackson, for appellees.
DEEN, Judge.
1. There is ample evidence in the record in this workmen's compensation case (in which the denial of an award to the spouse of the deceased made by the hearing director and affirmed by the full board was reversed by the judge of the Superior Court of Bibb County) that the action of the employee, a workman on a barge removing sand from the bottom of a pond, in removing *567 his upper clothing and diving from the barge to the water, where he drowned, was an act not arising "out of" his employment although performed "in the course of" it. U. S. F. & G. Co. v. Croft, 93 Ga. App. 114 (91 SE2d 110), rev. 212 Ga. 275 (92 SE2d 103). A specific finding of fact: "The employee died accidentally from drowning during a period of deviation from his employment" is therefore supported by evidence.
The difficulty with the case, and the reason for the reversal in the superior court, is a further statement of fact in the original award, adopted by the full board on appeal, as follows: "It is possible that the deceased had gotten muddy assisting in the task of breaking up the clods but the purpose for which he went into the water is not known. His job did not require that he throw all caution to the wind and recklessly dive into water over his head. If his purpose for diving into the water was to wash off mud, there were other means of doing this which were much safer. In fact, the duties of his job did not require that he go into the water for any purpose."
If we concluded this to be a finding by the full board on appeal that the sense of this quotation is that the employee was negligent and therefore cannot recover, we would agree that the award should be reversed, for negligence even though it be gross negligence, is not in issue. Aetna Life Ins. Co. v. Carroll, 169 Ga. 333 (1b) (150 S.E. 208). But there is a general burden on the plaintiff to prove the essential elements of his claim, including the fact that the accident arose out of his employment. Dept. of Revenue v. Graham, 102 Ga. App. 756 (117 SE2d 902); Gen. Motors Corp. v. Pruitt, 83 Ga. App. 620 (64 SE2d 339); Fulton Bag & Cotton Mills v. Haynie, 43 Ga. App. 579 (159 S.E. 781). Where the accident occurs during the course of the employment, and the employee receives the injury at a place where he may reasonably be expected to be in the course of his duties, a finding that the injury arose out of the employment is justified "but this presumption does not benefit the claimant upon the introduction *568 of uncontradicted evidence showing that the employee was not in such a place." City of Pembroke v. Jones, 109 Ga. App. 296 (136 SE2d 139), aff., 220 Ga. 213 (138 SE2d 276). As we read the award here it constitutes a finding that the employee drowned during a deviation from his employment, so that the death did not arise out of it, and the language objected to merely shows the reasoning of the fact finder in reaching the decision that the entry into the water had no causal relationship to the job, rather than a demonstration that the case was decided on the erroneous legal theory of negligence on the part of the employee.
2. The Workmen's Compensation Board will not entertain a motion for nonsuit, since it has no authority to dismiss a claim except for want of jurisdiction or for the claimant's failure to prosecute his cause. Morris v. Atlantic Co., 71 Ga. App. 760 (32 SE2d 116).
The trial court erred in reversing the award of the full board.
Judgment reversed. Eberhardt, P. J., and Clark, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332691/ | 229 Ga. 815 (1972)
194 S.E.2d 463
ATKINS
v.
MARTIN.
27452.
Supreme Court of Georgia.
Submitted September 12, 1972.
Decided December 4, 1972.
John Henry Atkins, pro se.
HAWES, Justice.
Appellant is serving a sentence of five years imposed upon him after his conviction of the offense of armed robbery. The judge of the superior court dismissed his petition for habeas corpus on the ground that it failed to state a claim upon which relief could be granted, and he appeals.
1. A writ of habeas corpus is never a substitute for appellate review to correct mere errors of law. Its function is to attack a void judgment. Sims v. Balkcom, 220 Ga. 7, 9 (136 SE2d 766). Therefore, appellant's contention that he was not guilty of the offense with which he was charged seeks to raise the issue as to whether the trial court was authorized from the evidence presented to find him guilty. It presents no ground for a writ of habeas corpus.
2. The ultimate question in any habeas corpus case is, were the petitioner's rights violated in the trial and sentence? The imprisonment in question is present detention, and not some prior detention, unless it can be said that such prior detention in some way infected or rendered illegal the present detention. Accordingly, "Any defect or irregularity in the prior arrest or imprisonment of the petitioner, even if there were such, would in no wise affect the jurisdiction of the court trying him; . . ." Johnson v. Plunkett, 215 Ga. 353 (5) (110 SE2d 745); Ballard v. Smith, 225 Ga. 416 (4) (169 SE2d 329). Also, a failure to advise an accused of his rights, which failure does not *816 produce a confession or other incriminating evidence which is used against him on the trial, constitutes no ground for setting aside the conviction on habeas corpus. Trull v. Smith, 226 Ga. 665 (6a) (177 SE2d 73). Under the foregoing authorities, the contention that the petitioner was never advised of his "Miranda rights" and that he was never given a hearing prior to the trial so as to be advised of the charges against him presents no ground for a writ of habeas corpus.
3. The failure of the petitioner to raise any question as to the make-up of the jury until after verdict constitutes a waiver of any contention as to the legality of the same. Moore v. Dutton, 223 Ga. 585 (1a) (157 SE2d 267). Furthermore, the contention of the petitioner that he was tried by an all-white jury fails to show that such a jury was selected from an illegal panel. This contention of the petitioner was without merit and showed no ground for the issuance of a writ of habeas corpus.
4. The fact that the petitioner was placed in a line-up on three separate occasions at which witnesses failed to identify him does not constitute putting him in jeopardy. This contention shows no ground for habeas corpus.
5. According to the allegations of the complaint, appellant was tried at the first term after the indictment was returned. Under these circumstances, even if the complaint that he was denied a speedy trial should constitute grounds for his discharge upon a writ of habeas corpus, his allegations fail to show that he was not given a speedy trial.
6. In view of the foregoing rulings, the trial court did not err in sustaining the motion of the respondent to dismiss the complaint.
Judgment affirmed. All the Justice concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332696/ | 127 Ga. App. 619 (1972)
194 S.E.2d 513
CHAFFIN
v.
ATLANTA COCA COLA BOTTLING COMPANY et al.
47120.
Court of Appeals of Georgia.
Argued April 4, 1972.
Decided November 9, 1972.
Rehearing Denied November 27, 1972.
Peek, Whaley & Haldi, Glenville Haldi, for appellant.
Hurt, Hill & Richardson, T. Cullen Gilliland, W. Seaborn Jones, Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, George Williams, for appellees.
BELL, Chief Judge.
This is a products liability action arising out of the purchase and consumption of an allegedly unwholesome bottle of Coca Cola against Atlanta Coca Cola Bottling Company and Big Apple Supermarket. The plaintiff alleged both negligence and breach of implied warranty in her complaint. The trial court's charge to the jury limited the basis of recovery by plaintiff to the issue of negligence only completely eliminating any recovery on the claimed breach of implied warranty. The jury returned a verdict for defendants and judgment was entered accordingly. The failure to charge the jury on the issue of breach of warranty and other instructions is enumerated as error.
The pertinent facts are simple. Plaintiff's minor daughter, while shopping with plaintiff in the supermarket, purchased bottles of Coca Cola from a Big Apple vending machine. Big Apple had purchased the drink from the bottling company. The child opened the bottles and gave one to plaintiff. According to the plaintiff's testimony a soapy-like substance was in the bottle of Coca Cola that she consumed, which caused her injury. Held:
1. Defendant Coca Cola urges that no implied warranty extended from it to plaintiff as there was no privity of contract between it and plaintiff or plaintiff's daughter. We agree. Under the Uniform Commercial Code a warranty "that the goods shall be merchantable is implied in a contract for their sale..." As this warranty clearly arises out of a contract of sale of goods, it can only run to a buyer who is in privity of contract with the seller. Code Ann. § 109A-2-316. There is an absence of any privity of contract between the buyer and the defendant Coca Cola, a manufacturer and remote seller. Under the Act of March 13, 1957, an implied warranty by the manufacturer was extended to an ultimate consumer. No privity of contract was required between the manufacturer *620 and the ultimate consumer. However, this Act was specifically repealed by the Uniform Commercial Code. Code Ann. § 109A-10-103. The repeal of the 1957 statute means that an ultimate buyer in Georgia cannot sue the manufacturer directly on a breach of implied warranty where the buyer does not purchase directly from the manufacturer. There is once again a gap in the law between the manufacturer and a buyer who purchases from a wholesaler or retailer in the distributive chain. See Young v. Certainteed Products Corp., 35 Ga. App. 419 (133 S.E. 279); Studebaker Corp. v. Nail, 82 Ga. App. 779, 784 (62 SE2d 198). The same conclusion is not true as regards defendant Big Apple for there was a contract of sale and privity between it and the buyer, plaintiff's daughter. UCC § 2-318 extends Big Apple's implied warranty of merchantability made to the buyer to "any natural person who is in the family or household of his buyer." Code Ann. § 109A-2-318. Plaintiff manifestly comes within the statute and it is plain under this statute that the lack of privity between Big Apple and plaintiff is not material. However, Coca Cola's warranty cannot extend to plaintiff under this provision due to the lack of privity between the buyer and seller. Big Apple also argues that notwithstanding the above, plaintiff cannot claim the remedy of breach of implied warranty because of its failure to give notice of the breach as required by UCC § 2-607 (3) (a). Code Ann. § 109A-2-607 (3) (a). The latter provides that "(3) where a tender has been accepted (a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of the breach or be barred from any remedy." These notice provisions of the breach cannot apply to plaintiff, a third-party beneficiary, under UCC § 2-318, for as to the third party there has been no tender of the goods by the seller Big Apple and no acceptance by plaintiff. She had nothing to do with the acceptance as she was not the buyer. Tomczuk v. Town of Cheshire, 26 Conn. Super. Ct. 219 (217 A2d 71).
*621 The trial court erred in failing to charge the jury on the issue of implied warranty as against defendant Big Apple, but there was no error as regards the defendant Coca Cola. That the error was harmful is apparent as plaintiff was denied the right to have this issue decided by the jury. For this reason we affirm as to Coca Cola and reverse as to Big Apple.
2. Exception was taken to the charge dealing with the duty of a plaintiff to exercise ordinary care for her own safety under Code § 105-603. Recognizing that plaintiff has attempted to recover from defendants both on theories of negligence and breach of warranty, this charge was correct as there was some evidence that made it applicable, for plaintiff testified that prior to taking a drink of the Coca Cola she noticed that it was "slick and soapy."
3. The plaintiff enumerated as error the trial court's charge that the plaintiff must prove by a preponderance of the evidence that the product was in the same condition from the time it left the defendant Coca Cola's hands until the time of consumption. This charge was correctly adjusted to the evidence as there was a showing that numerous other individuals had access to the Coca Cola in question from the time it left the bottling plant until it reached plaintiff's hands. Macon Coca Cola Bottling Co. v. Chancey, 216 Ga. 61 (114 SE2d 517); Dr. Pepper Bottling Co. v. Harris, 112 Ga. App. 360 (145 SE2d 288).
Judgment affirmed in part; reversed in part. Stolz, J., concurs. Evans, J. concurs in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332692/ | 194 S.E.2d 660 (1973)
Claud N. WILCHER, Jr.
v.
RIVERTON COAL COMPANY, a corporation, et al., and Arc Industries, Incorporated, a corporation, et al.
No. 13173.
Supreme Court of Appeals of West Virginia.
Submitted January 23, 1973.
Decided March 6, 1973.
*661 Lively, Light & Bias, William T. Lively, Jr., Charleston, for appellant.
Jackson, Kelly, Holt & O'Farrell, Thomas E. Potter, Forrest H. Roles, Charleston, for appellees.
BERRY, President:
This is an appeal by Claud N. Wilcher, Jr., hereinafter referred to as plaintiff, from an order of the Circuit Court of Kanawha County on August 17, 1971 which granted summary judgment to the defendant, ARC Industries, on plaintiff's claim for damages based on the breach of an oral agreement by the defendant to enter into an exclusive coal sales agreement with the plaintiff. The plaintiff's petition for an appeal was granted by this Court on December 13, 1971. The defendant filed a counter-assignment of error on January 3, 1973 alleging that the trial court's order was not an appealable order and that the alleged oral contracts were illegal. The case was submitted for decision on January 23, 1973 on briefs and oral arguments of the attorneys for the respective parties.
The following facts interpreted favorably for the plaintiff appear from the pleadings, affidavits, exhibits, depositions and answers to interrogatories:
The plaintiff had been employed in various positions in the coal industry for many years and, at the time of the events which led to this action, he was the president of his own company, which was basically a one-man company engaged in the coal brokerage business. During the early part of 1969, the plaintiff was informed that Davison Fuel and Dock Company was interested in selling all of the outstanding stock of its wholly owned subsidiary, Riverton Coal Company. Riverton's principal activity was the mining of coal in Kanawha and Fayette Counties. After several conversations with representatives of Davison, the plaintiff obtained a contract from Davison which gave the plaintiff the exclusive right to sell all of the stock of Riverton. This agreement was signed on April 17, 1969 and was to terminate May 15, 1969. The contract also stated that Davison was not obligated to pay any commission on the sale. Shortly thereafter, plaintiff was informed by Victor N. Green, a local coal operator, that Green knew of a prospective purchaser for the property. Plaintiff told Green that plaintiff wanted a 5% "finders fee" from the purchaser, (5% of the selling price of the stock), and an exclusive sales contract with the purchaser to sell the coal produced in the Riverton mines. The plaintiff and Green orally agreed to split the 5% "finders fee" if Green's prospect bought the stock. Green subsequently contacted James W. Miller, who was a local coal consultant, and advised Miller of the plaintiff's terms. Miller informed Green that he had a prospective buyer in Texas and that this buyer would purchase the property if Miller recommended it. Thereafter, plaintiff had several conversations with Miller and discovered that the prospective buyer was John Price, who was president of ARC Industries, Incorporated. Miller informed the plaintiff that Price had accepted the plaintiff's terms if the sale were consummated and the plaintiff then began supplying Miller with various technical information concerning Riverton's properties, such as maps of the land and copies of the leases which Riverton had.
Price telephoned the plaintiff shortly thereafter to inform the plaintiff that he was definitely interested in the property. The plaintiff told Price that he was sending him a letter containing the terms of the exclusive sales agreement and asked that Price sign the letter and return it. Price agreed to do this but he never returned the letter. Price came to Charleston shortly after this telephone conversation and met with Miller and the plaintiff and a friend of plaintiff who was knowledgeable concerning the Riverton's properties. At this meeting, it was determined that plaintiff would receive 20 cents for each ton of coal mined on the Riverton *662 properties under the exclusive sales contract.
Soon thereafter, Price's accountants and lawyers began meeting with the management of Davison and inspecting Davison's corporate books. The plaintiff was not present at any of these meetings and became concerned about his oral agreements with Price. The plaintiff, who had been unable to contact Price after these meetings began, finally met with Price in Charleston and was informed by Price that Price thought he could sell the coal himself and that he intended to breach any agreements that he had orally made with the plaintiff.
On June 30, 1969 ARC Industries purchased all of the stock of Riverton from Davison for $750,000. As a result, plaintiff filed an action in the Circuit Court of Kanawha County against Riverton Coal Company, ARC Industries, Incorporated, and James W. Miller, alleging that all three defendants had refused to pay him 5% of the sales price of the stock of Riverton and refused to grant him an exclusive sales contract to sell the coal produced in the Riverton mines. Plaintiff demanded judgment of $37,500, which was 5% of $750,000, and $952,000 which was plaintiff's estimate of his lost profits under the exclusive sales contract.
After the defendants' answers were filed and depositions and interrogatories were taken on behalf of the respective parties, defendant Miller moved for a summary judgment because he alleged he was merely an agent or employee of the defendant, ARC Industries. The defendants, Riverton and ARC Industries, moved the court to either dismiss the action against Riverton or enter a summary judgment for Riverton and dismiss the action against ARC Industries or enter summary judgment for ARC Industries. Riverton contended that the complaint failed to state a claim against it upon which relief could be granted. ARC contended that the plaintiff was not a licensed seller of stock under Code, 32-1-12, as amended, and hence plaintiff's contract was illegal; 2) that the oral exclusive sales contract could not be performed within a year and thus was within the Statute of Frauds; 3) and, that the exclusive sales contract was too vague and indefinite to be enforceable.
The Circuit Court of Kanawha County did not rule on Miller's motion for summary judgment. However, the Court dismissed the action against Riverton as a party defendant with prejudice under Rule 12(b)(6), which dismissal was agreed to by the parties, and granted ARC's motion for summary judgment on the ground that the oral contract was within the Statute of Frauds and hence was unenforceable, but the court held that ARC's other two contentions were not sufficient to warrant a summary judgment.
The threshold question in the case at bar is whether the order appealed from is an appealable order. If the order awarding summary judgment to ARC Industries is not an appealable order this Court does not have jurisdiction to consider and determine the case and the appeal should be dismissed as improvidently awarded. Leeson v. Smith, 132 W.Va. 715, 53 S.E.2d 412; Delardas v. Morgantown Water Commission, 148 W.Va. 318, 134 S.E.2d 889.
This action involves multiple claims against the defendants ARC Industries, Inc., a corporation, J. W. Miller, d/b/a James W. Miller and Associates and Riverton Coal Company. All of the proceedings had at the time the summary judgment in favor of ARC Industries was rendered were pre-trial proceedings. There had been no trial on the merits. The only matters considered by the court upon the motions for summary judgment by the defendants were depositions, affidavits and exhibits. The order only rendered judgment in favor of the defendant ARC Industries on the plaintiff's claim for damages based on an alleged breach of an agreement to enter into an exclusive coal sales agreement. The defendant's motion *663 for a summary judgment was denied as to all other claims of the plaintiff. The trial court overruled the motions of ARC Industries and Miller for a summary judgment on the claim of 5% as a "finders fee". The order rendering summary judgment in favor of ARC Industries on one of the plaintiff's claims did not contain an "express determination that there is no just reason for delay" for the entry of such judgment, as required by Rule 54(b) in order that the judgment be a final judgment.
Where multiple claims are involved the trial court should not attempt to enter a final judgment until the claims have been fully adjudicated allowing the order or other form of decision to be subject to revision at any time before the entry of a judgment adjudicating all of the claims. Rule 54(b), R.C.P.; Burleson v. Canada, 4 Cir., 285 F.2d 264. This procedure is governed by Rule 54(b), R.C.P., which reads as follows:
"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all of the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims."
The West Virginia Rules of Civil Procedure, Rule 54(b), as far as multiple claims are concerned, and Rule 56(d) are the same as 54(b) and 56(d) of the Federal Rules of Civil Procedure, and it has been held that where multiple claims are involved, a summary judgment under Rule 56(d) on less than all the claims is not a final judgment and not appealable under Rule 54(b) unless there is an "express determination that there is no just reason for delay". Burleson v. Canada, supra. However, where the trial court ordered execution on a summary judgment rendered in favor of a plaintiff on part of the claim, the judgment was treated as final and appealable in order to protect the defendant's right for a review although the court recognized that an order properly entered under Rule 56(d) is not an appealable order. Biggins v. Oltmer Iron Works, 7 Cir., 154 F.2d 214.
This matter is discussed in 6 Moore's Federal Practice, § 56.20, at page 2748, in the following language:
"* * * a summary `judgment' that the plaintiff recover on a portion of his claim, or a summary `judgment' for the defendant as to a portion of a claim is interlocutory; is subject to revision by the trial court; and, unless the order fall within a statutory category which allows an interlocutory appeal, the summary `judgment' is non-appealable, subject to the following qualification. In the foregoing situations the trial court should not attempt to enter a final judgment. If, however, the trial court does, nevertheless, enter an affirmative judgment for the plaintiff, with an award of execution an appeal will lie because the court has exceeded its authority under the Rules and because the judgment being subject to execution a postponement of the right of appeal until the claim has been fully adjudicated would leave the judgment debtor's right of review of doubtful value.
"If in an action involving multiple claims or parties the court renders a summary judgment as to one or more but fewer than all of the claims or parties, and makes the `express determination' and `express direction' as provided in Rule 54(b), then the judgment is final; but in the absence of the `express determination' and `express direction' any adjudication of fewer than all the *664 claims or the rights and liabilities of fewer than all the parties is interlocutory, and hence the order, unless it be one from which an interlocutory appeal will lie, is nonappealable."
This question is also discussed in 3 Barron and Holtzoff, Federal Practice and Procedure, § 1241, page 190 and page 193, wherein it is stated:
"* * * Subdivision (d) of Rule 56 indicates clearly, however, that a partial summary `judgment' is not a final judgment, and, therefore, that it is not appealable, unless in the particular case some statute allows an appeal from the interlocutory order involved. The partial summary judgment is merely a pre-trial adjudication that certain issues shall be deemed established for the trial of the case. This adjudication is more nearly akin to the preliminary order under Rule 16, and likewise serves the purpose of speeding up litigation by eliminating before trial matters, wherein there is no genuine issue of fact."
* * * * * *
"Thus it appears that an order entered under Rule 56(d) is not appealable merely because it is called a partial summary `judgment'. The finality and appealability of a summary decision disposing of part of an action must be determined under Rule 54(b)."
The summary judgment in the instant case was rendered in favor of the defendant and therefore there was no order for an execution. Although a summary judgment was awarded to the defendant, ARC Industries, there was no express determination that there was no just reason for delay in entering the summary judgment. Thus, upon the trial on the merits in this case, if the evidence indicates that the ordering of the partial summary judgment in favor of ARC Industries was not warranted, a revision of said order could be made at any time before the entry of the judgment adjudicating all of the claims.
The law in West Virginia pertaining to this matter before the Rules of Civil Procedure were adopted in 1960 was that a judgment that did not adjudicate all of the plaintiff's claims was not a final judgment and was not appealable. Riley v. Jarvis, 43 W.Va. 43, 26 S.E. 366.
The following statement in the Riley case, at page 53, 26 S.E. at page 369, clearly indicates the law as it relates to appealable orders, wherein the Court stated: "* * * In a law case, a judgment, to be final, so as to warrant a writ of error, must end the issue presented by the whole case."
This Court has long adhered to the principle that it will not decide cases piecemeal. See 11 M.J., Judgments and Decrees, § 7, page 33; 1B M.J., Appeal and Error, § 70, page 171; Staud v. Sill, 114 W.Va. 208, 171 S.E. 428. If and when this case is tried on its merits all of the matters involved can be finally disposed of by a final order adjudicating all of the claims and the final judgment may be appealed, if so desired, to this Court by the party not prevailing in the trial court.
For the reasons stated herein, the motion to dismiss is granted and the appeal heretofore awarded in this case is dismissed as improvidently awarded.
Motion to dismiss granted; appeal dismissed as improvidently awarded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332706/ | 229 Ga. 811 (1972)
194 S.E.2d 440
GEORGIA POWER COMPANY
v.
McGRUDER.
27433.
Supreme Court of Georgia.
Argued November 13, 1972.
Decided December 4, 1972.
Jones, Cork, Miller & Benton, Wallace Miller, Jr., W. Warren Plowden, for appellant.
Benjamin B. Garland, Benjamin M. Garland, for appellee.
UNDERCOFLER, Justice.
Willie Mae McGruder filed a complaint against the Georgia Power Company for the wrongful death of her ten-year-old son who drowned in a pool of water located below the defendant's dam and power plant on Lake Jackson. The boy was trapped inside a drainage pipe which runs from said pool to a lower-lying pool about 20 feet away. The complaint alleged several grounds of liability. The defendant's motion for summary judgment was granted by the trial court.
The Court of Appeals reversed the judgment of the trial court. It held that the claim was governed by an Act of the General Assembly of 1965 (Ga. L. 1965, p. 476) entitled "Liability of Owners of Recreational Areas." Code Ann. §§ 105-403 through 105-409. McGruder v. Georgia Power Co., 126 Ga. App. 562 (191 SE2d 305). We granted certiorari to review this judgment. Held:
Section 1 of the Act of 1965 (Ga. L. 1965, p. 476) provides: "The purpose of this Act is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." Code Ann. § 105-403.
Section 4 of the Act provides: "Except as specifically recognized by or provided in section 6 of this Act, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby. . ." Code Ann. § 105-406.
The evidence presented upon the motion for summary judgment showed the defendant's employees did not know of the boy's presence but knew that in the past persons had been swimming and fishing in its waters. Photographs in evidence showed that there were located on the power plant and dam above the place where the boy drowned two large warning signs which read: "Danger. For your own safety please keep out. Rough waters. Gates at dam *812 operate automatically." The Act of 1965 (Ga. L. 1965, p. 476; Code Ann. § 105-403) limits the liability of an owner of land who "directly or indirectly invites or permits without charge any person to use such property for recreational purposes." In our opinion the statute is not applicable where, as here, the use of the land was expressly denied to the deceased boy by the posting of "keep out" signs in the area. Accordingly, the decision of the Court of Appeals is reversed and the case returned to that court for further consideration.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1332694/ | 127 Ga. App. 711 (1972)
194 S.E.2d 615
FULTON
v.
THE STATE.
47485.
Court of Appeals of Georgia.
Argued September 12, 1972.
Decided December 5, 1972.
Stanley H. Nylen, for appellant.
Lewis R. Slaton, District Attorney, Donald Frost, Carter Goode, Joel M. Feldman, Morris Rosenberg, for appellee.
PANNELL, Judge.
Appellant was indicted and tried for murder, convicted of voluntary manslaughter, and sentenced to a term of fifteen years in the penitentiary. He appeals the conviction and sentence and the overruling and denial of a motion for new trial.
A recitation of the factual situation is unnecessary for a determination of the issues raised by the appellant. Suffice it to say that a dispute arose concerning the number of cards dealt one of the parties in a card game. The deceased left the house and was followed by the defendant-appellant who had a gun in his hand. Outside the house the gun fired and the bullet struck the deceased almost directly between the eyes, resulting in his death.
The enumerations of error, not abandoned, will be treated seriatim.
1. Appellant alleges that the court erred in failing to fully instruct the appellant on the law relating to the making of an unsworn statement, when, at the request of retained counsel he instructed the defendant: "Mr. Fulton, you have a right to make to the court and jury such statement as you see fit in your own behalf. You are not under oath. You are not subject to cross examination but you have a right to say to the jury whatever you deem appropriate in your own behalf." This instruction substantially complies with so much of Code § 38-415 as pertains to an unsworn statement. No request was made at trial for advice on a sworn statement. The defendant made his unsworn statement when represented by competent retained counsel and is assumed to have done so after consultation with and upon advice of counsel. Abrams v. State, 223 Ga. 216 (5), 222 (154 SE2d 443).
2. Appellant alleges the court erred when it charged the jury: "The law presumes every killing to be malicious until the contrary appears." This instruction was approved by the Supreme Court in Fisher v. State, 228 Ga. 101 (184 SE2d 178). The jury having found voluntary *712 manslaughter, any error in such an instruction would be harmless. May v. State, 120 Ga. 135 (47 S.E. 548); Ingram v. State, 26 Ga. App. 233 (105 S.E. 727).
3. Appellant alleges the court erred when the trial judge said to the appellant in the presence of the jury: "You make whatever statement to the jury that you deem appropriate in your own behalf. You are not restricted. Your lawyer can take care of you in a fine way. You don't have to worry."
The judge's statement was in response to defendant's query, "Am I right in saying this or should I not say it?" to which retained counsel responded "Yes, sir."
The judge's statement was in no way argumentative. In Kellar v. State, 226 Ga. 432 (3) (175 SE2d 654), where an argumentative exchange was involved, the Supreme Court held that if the defendant precipitated the colloquy himself, he cannot claim that it prejudiced his case, especially since, as in the case sub judice, no objection or motion was made to the judge's response. The judge's reference to retained counsel was laudatory and not derogatory.
4. Appellant alleges the judge erred in not determining the question of voluntariness of the appellant's statement to Detective Arnold; further, the judge should have determined the question of voluntariness out of the presence of the jury.
Appellant's attempt to raise this issue for the first time on appeal has no sanction under Turner v. Smith, 226 Ga. 448 (7) (175 SE2d 653); Roberts v. State, 228 Ga. 298 (1) (185 SE2d 385). In the absence of an objection during the course of the trial and in view of the testimony concerning the "in custody" statements, a separate hearing under Jackson v. Denno, 378 U.S. 368 (84 SC 1774, 12 LE2d 908, 1 ALR3d 1205) was not required. Watson v. State, 227 Ga. 698 (1) (182 SE2d 446); Harris v. Stynchcombe, 227 Ga. 763 (1) (183 SE2d 205); Fountain v. State, 228 Ga. 306, 309 763 (1) (185 SE2d 62). However, we have reviewed the transcript of testimony and find that Detective *713 Arnold did advise the accused concerning his constitutional rights against self-incrimination, and further find that there is no evidence of unlawful compulsion to make a statement.
5. Appellant alleges the court erred in excusing certain jurors because they were conscientiously opposed to capital punishment.
Appellant was not sentenced to death (15 years), therefore, the effect of the U. S. Supreme Court decision in Wither-spoon v. Illinois, 391 U.S. 510 (88 SC 1770, 20 LE2d 776) makes such action, at most, harmless error. Bumper v. North Carolina, 391 U.S. 543 (88 SC 1788, 20 LE2d 797). The Supreme Court of Georgia has consistently and repeatedly held, "Where the sentence imposed in a capital felony case is not a death sentence, it is no ground to set aside such sentence that prospective jurors who were opposed to capital punishment were excluded from service." Wallace v. State, 225 Ga. 734 (171 SE2d 290); Brown v. State, 226 Ga. 114, 115 (172 SE2d 666); Massey v. State, 226 Ga. 703 (7) (177 SE2d 79), cert. den. 401 U.S. 964 (91 SC 984, 28 LE2d 248); and Fountain v. State, 228 Ga. 306 (2), supra.
We find no merit in any of the allegations of error. Accordingly, the judgment is
Affirmed. Hall, P. J., and Quillian, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263042/ | 893 A.2d 46 (2006)
383 N.J. Super. 639
CITY OF EAST ORANGE, a Municipal Corporation in the County of Essex and State of New Jersey, Plaintiff-Respondent,
v.
Susan Evelyn KYNOR, Owner Block 62, Lot 14, 111 North 17th Street, Assessed to 111 North 17th Street, East Orange, New Jersey, Defendant-Appellant.
Superior Court of New Jersey, Appellate Division.
Argued January 11, 2006.
Decided March 10, 2006.
*47 Susan Evelyn Kynor, appellant, argued pro se.
Gerard C. Tamburino, North Caldwell, argued the cause for respondent (Sanford E. Chernin, Somerville, of counsel and on the brief).
Before Judges STERN, PARKER and MINIMAN.[1]
The opinion of the court was delivered by
PARKER, J.A.D.
Defendant Susan Evelyn Kynor is the owner of Block 62, Lot 14 in the City of East Orange (City). Defendant's property was one of a number of properties on which the City foreclosed for delinquent taxes. She appeals from an order entered on March 16, 2005 denying her motion to vacate the final judgment of foreclosure and ordering her not to file any further motions in the action without approval of the Essex County Assignment Judge. We reverse and remand.
The property at issue has been in defendant's family since 1903. It was transferred to defendant from her mother's estate on November 13, 2001. Two days later, on November 15, a tax sale certificate was issued transferring ownership of the property to the City due to delinquent municipal taxes. On March 21, *48 2003, the City filed a complaint to foreclose on the property.
Thereafter, defendant filed a "motion to show cause" seeking to compel the City to allow her to redeem the tax sale certificate for the amount listed in the resolution adopted by the City in August 2002 and the notice published in the Star-Ledger on April 2, 2003, $5,056.16, plus interest and costs. Defendant further sought to limit the City's claim for attorneys fees to $350.
On September 17, 2003, the trial court denied defendant's application, struck her answer and transferred the matter to the foreclosure unit to proceed as an uncontested matter in accordance with R. 4:64-1.
Defendant's application for a stay of that order was denied by the trial court on November 19, 2003. She appealed and we denied her motion for a stay on March 24, 2004. On June 2, 2004, the Supreme Court denied her motion for a stay pending appeal.
On June 29, 2004, we affirmed the trial court's decision denying defendant's "motion to show cause," stating that the trial judge's September 18, 2003 letter opinion "appear[ed] to have answered all the arguments presented on appeal."
On July 16, 2004, a final judgment of foreclosure was entered on the property. Thereafter, defendant moved before the Supreme Court for "reconsideration of her motion for leave to appeal." This application was denied on July 22, 2004. Defendant then moved for reconsideration of our decision, which we denied. Defendant's petition for certification was denied by the Supreme Court on November 10, 2004. On December 10, 2004, the trial court denied defendant's motion to stay its order of September 17, 2003 pending appeal. On that same date, December 10, the trial court denied defendant's motion to have the Essex County Register expunge the transfer of the property to the City. The trial judge stated that the motion was denied because:
Defendant's arguments are of a constitutional nature not previously raised before this court and should properly be addressed in her Petition for Certiorari to the United States Supreme Court.
Still not deterred, defendant moved for reconsideration and clarification of the Supreme Court's denial of certification. Those motions were denied on January 11, 2005.
Defendant then moved to vacate the final judgment of foreclosure. That motion was denied by the trial court on March 16, 2005, in an order that included a provision prohibiting defendant from filing any further applications on this matter to the Essex County Superior Court without first obtaining approval of the assignment judge. The March 16, 2005 order is the subject of this appeal.
In denying defendant's motion, the trial judge indicated that she did not believe defendant met the requirements to vacate the judgment under R. 4:50-1(f):
The situations that the rule was intended to cover are truly exceptional cases that implicate a public policy []. The public policy that underlies the tax foreclosure laws unfortunately go[] in favor of the City and not you.
....
It's just the operation of the tax laws. Among those [are] they don't have to accept installment payments. The law doesn't provide for that. They don't have to accept anything other than a lump sum.
....
And I am at the point where [I] think that you should not be permitted to file motions anymore ... with this Court. It's starting to become a nuisance.... *49 [A]ny further motions to this Court ... have to be with the approval of the Assignment Judge of Essex County.
In this appeal, defendant argues that the trial judge erred (1) in denying her motion to vacate the final judgment under R. 4:50-1(f); and (2) in ordering her to obtain the approval of the assignment judge before filing further applications.
DISCUSSION
At the outset, we note that defendant has represented herself throughout this litigation and, although articulate, she is not educated in the law. While her pleadings have expressed the relief she has sought throughout the litigation, the arguments have not been drafted artfully in a legal context.[2]
When the property was transferred to defendant from her mother's estate on November 13, 2001, she immediately began to gather the money necessary to pay the delinquent taxes. At the time, the amount due was $4,330.88, plus interest. Defendant was unable to raise the full amount and asked the tax collector for a payment plan. Although defendant is a lifelong resident of the City with strong ties to the community, the tax collector declined defendant's offer to pay the taxes on an installment plan.[3]
On August 26, 2002, the City Council adopted a resolution authorizing Corporation Counsel to foreclose on a number of properties. The resolution listed defendant's property and stated that $5,056.15 was the amount required to redeem the tax sale certificate. At oral argument before us, defendant represented that she attempted to pay that amount but the tax collector refused the payment, stating that the amount due was greater. Counsel for the City did not dispute defendant's representation.
When the City filed the foreclosure action on March 21, 2003, defendant represented that the amount stated in the complaint was the same as that listed in the August 26, 2002 resolution, $5,056.15, to redeem the tax sale certificate. On April 3, 2003, the City stated the same amount in the foreclosure notice published in the Star-Ledger. Thus, the City Council's resolution, the complaint in foreclosure and the published notice of foreclosure all stated that the amount necessary to redeem the tax sale certificate and avoid foreclosure was $5,056.15. Defendant represents that no notice was given to her stating additional amounts necessary to redeem the tax sale certificate.
Nevertheless, defendant represents that the tax collector refused to accept the published amount, advising defendant that two additional tax periods had passed between the time of the resolution and the foreclosure complaint, and defendant was required to pay the entire amount in order to redeem the tax sale certificate.[4] Moreover, the City advised defendant that she had to pay $850 in legal fees, along with the back taxes plus 18% interest in order to redeem the tax sale certificate, notwithstanding the judgment of foreclosure which approved only $798 in legal fees.
Defendant represents that in August 2004, Corporation Counsel indicated that the City was willing to settle the matter. *50 When defendant attempted to arrange a meeting to discuss a settlement, however, City personnel would not schedule it. Defendant further represented at oral argument before us that after the judgment of foreclosure was entered, the City offered to sell her property to a developer for $30,000. When defendant offered to pay the City the same amount, however, her offer was refused. Defendant continues to live in the residence and has paid all other municipal fees, including water and sewer. The City has not evicted defendant from the property presumably because of the continuing litigation.
Rule 4:50-1(f) provides that
[T]he court may relieve a party ... from a final judgment or order for the following reasons
....
[f] Any other reason justifying relief from the operation of the judgment or order.
Rule 4:50-2 requires that a R. 4:50-1 motion "be made within a reasonable time." Here, within days of the final judgment, defendant attempted to pursue her cause through the Appellate Division and the Supreme Court, apparently unaware of the relief available under R. 4:50-1(f). By February 2005, however, less than a year after the judgment was entered, defendant moved before the trial court to vacate the judgment under R. 4:50-1(f) and raised due process issues of a constitutional dimension. We disagree with the trial judge's determination that defendant's only option at this juncture is to pursue her constitutional arguments through the federal system.
Rule 4:50-1(f) provides relief in exceptional circumstances.
No categorization can be made of the situations which warrant redress under subsection (f).... [T]he very essence of
(f) is its capacity for relief in exceptional situations. And in such exceptional cases its boundaries are as expansive as the need to achieve equity and justice. [Court Inv. Co. v. Perillo, 48 N.J. 334, 341, 225 A.2d 352 (1966); See also Housing Auth. v. Little, 135 N.J. 274, 285-86, 639 A.2d 286 (1994); Jersey City Mgmt. v. Garcia, 321 N.J.Super. 543, 545, 729 A.2d 521 (App.Div.1999).]
"In order to obtain relief under this subsection, the movant must show that the circumstances are exceptional and that enforcement of the order or judgment would be unjust, oppressive or inequitable." Pressler, Current N.J. Court Rules, comment 1.7 on R. 4:50-1 (2006); Johnson v. Johnson, 320 N.J.Super. 371, 378, 727 A.2d 473 (App.Div.1999); Woodrick v. Jack J. Burke Real Estate, Inc., 306 N.J.Super. 61, 77-78, 703 A.2d 306 (App.Div.1997), certif. granted, 153 N.J. 214, 708 A.2d 65, and app. dismissed, 157 N.J. 537, 724 A.2d 799 (1998); Quagliato v. Bodner, 115 N.J.Super. 133, 138, 278 A.2d 500 (App. Div.1971).
Given the facts presented, we are satisfied that defendant has demonstrated exceptional circumstances and that enforcement of the foreclosure judgment would be "unjust, oppressive [and] inequitable." Defendant was denied due process in that she was never given a hearing on the issues raised in her "motion to show cause" filed in response to the foreclosure complaint to determine whether she was denied due process because the foreclosure notices indicated that she could redeem the tax sale certificate and avoid foreclosure by paying $5,056.15.
The record before us demonstrates that the resolution adopted by the City on August 27, 2002 stated that the amount of the tax sale certificate was $4,330.88 and the amount of subsequent liens, penalties and costs was $725.27, bringing the total *51 amount required to redeem to $5,056.15. We have not been provided with a copy of the notice published in the Star-Ledger or the foreclosure complaint, but defendant represents, and the City does not dispute, that both the notice and the complaint stated that defendant could avoid foreclosure by paying $5,056.15.
Defendant represents that she had borrowed the amount stated in the published notice in order to redeem the tax sale certificate, but the City refused payment because additional taxes and penalties had accrued in the time between the resolution and the notice. We consider it fundamentally unfair and a violation of due process if the City required payment in an amount above that stated in a complaint and published notice.
Rule 4:4-5(c) allows for service of the complaint by publication and N.J.S.A. 54:5-104.42 declares that
service and posting of notice as provided by the Rules Governing the Courts of the State of New Jersey shall be notice to the world including all persons claiming any right, title, interest in or lien upon the land ... and that unless said land[] be redeemed ... in the cause ... the right, title, interest or lien ... shall be foreclosed and forever debarred ... by the judgment....
"It is beyond question that any procedure which deprives an individual of a property interest must conform to the dictates of the Due Process Clause." Tp. of Montville v. Block 69, Lot 10, 74 N.J. 1, 8, 376 A.2d 909 (1977) (citations omitted). "Accordingly, the United States Supreme Court has held that procedural due process applies where state law does not entirely extinguish the taxpayers' property interest until foreclosure." Ibid. "In New Jersey, as elsewhere, `[t]he essential components of due process are notice and an opportunity to be heard.'" First Resolution Inv. v. Seker, 171 N.J. 502, 513-14, 795 A.2d 868 (2002) (quoting Mettinger v. Globe Slicing Mach. Co., 153 N.J. 371, 389, 709 A.2d 779 (1998)). "Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner." Doe v. Poritz, 142 N.J. 1, 106, 662 A.2d 367 (1995).
"At a minimum, due process requires that a party in a judicial hearing receive `notice defining the issues and an adequate opportunity to prepare and respond.'" H.E.S. v. J.C.S., 175 N.J. 309, 321, 815 A.2d 405 (2003) (quoting McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 559, 626 A.2d 425 (1993)). "There can be no adequate preparation where the notice does not reasonably apprise the party of the charges, or where the issues litigated at the hearing differ substantially from those outlined in the notice." Dep't of Law and Pub. Safety v. Miller, 115 N.J.Super. 122, 126, 278 A.2d 495 (App.Div.1971). Due process is "a flexible [concept] that depends on the particular circumstances." Doe, supra, 142 N.J. at 106, 662 A.2d 367.
Applying these principles to the case before us, we find that if defendant's representations are accurate, she was deprived of her due process rights. N.J.S.A. 54:5-59 provides that "the amount required for redemption shall include all subsequent municipal liens." In our view, due process requires the municipality to include the amount of subsequent liens in the foreclosure complaint and published notice so that a person with an interest in the property will be apprised of the amount actually required to redeem the tax sale certificate and avoid foreclosure. When the amount listed in the published notice and foreclosure complaint merely parrots the amount recited in the City's resolution, without including the amount of *52 the subsequent liens, penalties and costs, the taxpayeror any other person with an interest in the propertyis not given adequate notice and is thereby denied due process. In other words, to comply with due process, the complaint and published notice must advise the taxpayer of the total amount he or she must pay to avoid foreclosure. The taxing entity may satisfy the due process requirement by stating the amount in the resolution, plus the amount of taxes, penalties and costs due each quarter, so that the taxpayer may readily calculate the total amount necessary to avoid foreclosure.
We consider the published notice and the complaint in foreclosure fatally defective if the amount stated to redeem the tax sale certificate did not include the subsequent liens, penalties and costs. "While the importance of the government's taxing power cannot be ignored, we must not forget that governmental concern for convenience or simplicity does not outweigh individual rights." Tp. of Montville, supra, 74 N.J. at 14, 376 A.2d 909. "In dealing with the public, government must `turn square corners.'" F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 426, 495 A.2d 1313 (1985) (quoting Gruber v. Mayor and Tp. Comm., 73 N.J.Super. 120, 179 A.2d 145 (App.Div.), aff'd, 39 N.J. 1, 186 A.2d 489 (1962)). Accordingly, we reverse the order of March 16, 2005, and remand to the trial court for an evidentiary hearing to determine whether the published notice and the complaint included the full amount necessary to redeem as of their respective dates. If they do not, the foreclosure judgment shall be vacated.
With respect to the trial judge's order that defendant is prohibited from filing any further motions in this action without approval of the assignment judge, we appreciate the trial judge's frustration in dealing with repeated motions, given the caseload in General Equity. Indeed, we have previously held that "an Assignment Judge can prevent the filing of a complaint, or issuance of a summons thereon, when the plaintiff's prior litigation demonstrates a pattern of frivolous pleadings." Rosenblum v. Borough of Closter, 333 N.J.Super. 385, 387, 755 A.2d 1184 (App. Div.2000). Nevertheless, we are persuaded that defendant's efforts to protect the property that has been in her family since 1903 should not be hampered merely because the trial court dockets are overburdened. Consequently, we reverse that portion of the March 16, 2005 order, as well, but remind defendant that she may be sanctioned for filing frivolous applications. N.J.S.A. 2A:15-59.1; R. 1:4-8.
Finally, with respect to defendant's representation that the City offered to sell the property to a developer for $30,000 but refused to accept her offer to pay the same amount for clear title, we do not have a record upon which to determine whether such conduct violates the equal protection clauses of the United States Constitution[5] and/or the New Jersey Constitution[6] and that issue must be addressed in the trial court. Accordingly, we remand the issue to the trial court for an evidentiary hearing.
To summarize our decision: the order of March 16, 2005, is reversed and the matter is remanded for a determination of (1) whether defendant was denied her due process rights because the complaint and published notice failed to state the full amount required to redeem the tax sale certificate and avoid foreclosure and (2) whether defendant's equal protection rights were violated because the City offered *53 to sell the property post-judgment to a third party but refused to accept defendant's offer to pay the same amount.
NOTES
[1] This case was originally argued before Judges Stern and Parker. Judge Miniman participated in the disposition after one party consented and the other did not respond to our invitation to have further telephonic argument.
[2] Apparently, defendant's inartful arguments resulted in the trial and appeals courts consistent denial of defendant's applications.
[3] N.J.S.A. 54:5-59 allows for payment of back taxes and redemption of tax sale certificates on an installment plan "with the consent of the governing body."
[4] N.J.S.A. 54:5-59 requires that all subsequent liens must be paid before a taxpayer can redeem a tax sale certificate.
[5] U.S. Const. amend. XIV, ¶ 1.
[6] N.J. Const. Art.1 ¶ 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1727719/ | 735 N.W.2d 193 (2007)
2007 WI App 162
STATE
v.
WILCOX.[1]
No. 2006AP1623-CR.
Court of Appeals of Wisconsin.
May 17, 2007.
Unpublished opinion. Affirmed.
NOTES
[1] Petition for Review Filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333114/ | 299 S.E.2d 664 (1983)
J.H. HARVEY
v.
NORFOLK SOUTHERN RAILWAY COMPANY, INC. and Southern Railway System, Inc.
No. 822SC142.
Court of Appeals of North Carolina.
February 1, 1983.
*666 L.H. Ross, Washington, for plaintiff-appellant.
Rodman, Rodman, Holscher & Francisco by Edward N. Rodman, Washington, for defendant-appellee.
VAUGHN, Chief Judge.
Plaintiff's sole argument is that the trial court erred in granting defendant Railway's motion for judgment notwithstanding the verdict because Railway either expressly or by implication assumed the obligation to pay his medical expenses for life. We do not agree. A motion for judgment notwithstanding the verdict is technically a renewal of the motion for a directed verdict. Love v. Pressley, 34 N.C.App. 503, 239 S.E.2d 574 (1977), review denied, 294 N.C. 441, 241 S.E.2d 843 (1978).
Judgment notwithstanding the verdict should be granted only when the evidence is insufficient as a matter of law to support the verdict. Where the evidence admitted at trial, taken in the light most favorable to the non-moving party with all reasonable inferences drawn in his favor, is sufficient to support the verdict, it should not be set aside.
Beal v. K.H. Stephenson Supply Company, Inc., 36 N.C.App. 505, 507, 244 S.E.2d 463, 465 (1978). Although the evidence, taken in the light most favorable to plaintiff, tends to show that defendant Railway continued to pay plaintiff's medical expenses for thirty-seven years, there is no evidence that defendant adopted the obligation either expressly or by implication. A corporation may, after it comes into existence, adopt a contract made on its behalf, either expressly or by accepting the benefits of the contract with knowledge of its provisions. Whitten v. Bob King's AMC/Jeep, Inc., 292 N.C. 84, 231 S.E.2d 891 (1977); Smith v. Ford Motor Company, 289 N.C. 71, 221 S.E.2d 282 (1976); McCrillis v. A & W Enterprises, Inc., 270 N.C. 637, 155 S.E.2d 281 (1967). In this case, the contract was between Railroad and plaintiff. It could not have been made on Railway's behalf because Railway came into existence fourteen years later, and was not Railroad's successor, it merely purchased some of the bankrupt Railroad's assets.
Plaintiff's reliance on Beachboard v. Southern Railway Company, 16 N.C.App. 671, 193 S.E.2d 577 (1972), cert. denied, 283 N.C. 106, 194 S.E.2d 633 (1973), to support his contention that Railway adopted the contract between plaintiff and Railroad, is misplaced. In Beachboard, an employee of Southern Railway Company (Southern), had his legs amputated when he was hit by a railway car while he was working at the railroad yard owned by U.S. Plywood-Champion Papers, Inc. (Champion). Southern filed a third party complaint against Champion alleging it was entitled to be indemnified pursuant to a contract entered into between Southern and Champion Fibre Company (Fibre Company), a predecessor of Champion, in 1905. The court found that although Fibre Company was not in existence in 1905, it acted under the contract and accepted the benefits after it was incorporated in 1906, and thus ratified the contract by implication and was bound to perform the obligations incident to the contract. In 1936, Fibre Company conveyed all its assets to its parent corporation, Champion Paper & Fibre Company, which expressly agreed to be bound by the contract. In 1967, Champion Paper & Fibre Company, which had changed its name to Champion Papers, merged with U.S. Plywood Corporation and became the third party defendant, U.S. Plywood-Champion Papers, Inc. (Champion). The court held that Champion was bound by the contract and was obligated *667 to perform the duties which were imposed on Fibre Company. Beachboard clearly comes within the general rule mentioned above that contracts made on a corporation's behalf, prior to incorporation, may be adopted by implication if the corporation accepts the benefits of the contract with full knowledge of its provisions. Beachboard does not, however, support plaintiff's argument because in the present case the contract was between plaintiff and Railroad. It was not entered into on Railway's behalf. Railway was not Railroad's successor, it merely purchased some of the bankrupt Railroad's assets eighteen years after plaintiff's accident.
Since the liability to plaintiff was solely Railroad's, Railway could only be obligated to pay plaintiff's medical expenses if it expressly agreed, in writing, to do so. Since there was no written agreement signed by Railway, plaintiff's action is barred by the Statute of Frauds. G.S. 22-1 provides, in part:
No action shall be brought ... to charge any defendant upon a special promise to answer the debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party charged therewith or some other person thereunto by him lawfully authorized.
Furthermore, the main purpose rule would not except this from the Statute of Frauds. The main purpose rule applies only when the promisor has a direct pecuniary interest in the transaction in which a third party is the primary obligor. Burlington Industries, Inc. v. Foil, 284 N.C. 740, 202 S.E.2d 591 (1974). In this case, there was no evidence showing Railway had any pecuniary interest whatsoever in the settlement between plaintiff and Railroad. Since this does not come within the main purpose rule exception, the Statute of Frauds bars plaintiff's action. The evidence was insufficient to support the jury's verdict, and the judgment notwithstanding the verdict was properly entered.
Affirmed.
WHICHARD, J., concurs.
WELLS, J., dissents.
WELLS, Judge, dissenting:
The grounds stated in the defendant's motion for a directed verdict was that "the evidence taken in the light most favorable to plaintiff fails to establish a claim upon which relief can be granted." Our review on appeal is limited to the grounds stated in defendant's motion. Fabrics, Inc. v. Delivery Service, 39 N.C.App. 443, 250 S.E.2d 723 (1979).
Plaintiff's evidence clearly established that the defendant had assumed the contractual obligations to him originated by the agreement between plaintiff and Norfolk Southern Railroad Company, and that the defendant continued to recognize such obligations to plaintiff for 37 years. The clear inference, the only reasonable inference, to be drawn by such conduct on defendant's part is that it adopted and ratified the contract between plaintiff and Railroad Company.
Although the majority opinion ultimately concludes that plaintiff's claim is barred by the Statute of Frauds, I do not believe that question to be before us, since plaintiff succeeded in establishing defendant's direct obligation to him.
Plaintiff's evidence being sufficient to withstand defendant's motion for a directed verdict, it follows that entry of judgment notwithstanding the verdict was improper. Norwood v. Sherwin Williams, 303 N.C. 462, 279 S.E.2d 559 (1981).
I vote to reverse and remand for entry of judgment on the verdict. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333149/ | 165 Ga. App. 18 (1983)
299 S.E.2d 68
BARTLETT
v.
THE STATE (three cases).
64817, 64818, 64819.
Court of Appeals of Georgia.
Decided January 4, 1983.
James P. Brown, Jr., A. J. Welch, Jr., for appellant.
E. Byron Smith, District Attorney, Tommy K. Floyd, Assistant District Attorney, for appellee.
POPE, Judge.
Clarence Ellis Bartlett appeals his conviction on three counts of violating the Georgia Controlled Substances Act. Held:
1. Appellant's first two enumerations of error challenge the trial court's denial of his motion to suppress certain evidence seized as the result of a search warrant. The transcript of the hearing on this motion discloses that the subject warrant and accompanying affidavit were marked as an exhibit by the state but were never tendered into evidence. Several months later the clerk of the court supplemented the record in this case by forwarding to this court a copy of the warrant and affidavit, noting that the same had been inadvertently omitted. The warrant indicates on its face that it had been filed in open court on the day of the suppression hearing. The transcript of that hearing indicates that the written affidavit was the only evidence presented to the magistrate in support of issuing the warrant. Yet, as noted earlier, neither the warrant nor the accompanying affidavit were tendered as evidence at the hearing. Further, the testimony proffered by the state did not disclose the *19 substance of the affidavit.
"It is elementary that documents upon which a party rests his case must be offered into evidence." Stanley v. Stanley, 138 Ga. App. 560, 561 (226 SE2d 800) (1976). "The burden of proof is upon the state to show what facts constituting probable cause existed and were presented to the magistrate before the warrant was issued." Bland v. State, 141 Ga. App. 858 (234 SE2d 692) (1977). For whatever reason, the warrant and accompanying affidavit were not tendered into evidence by the state. The only evidence presented in support of the state's position was the testimony at the hearing. This testimony did not contain sufficient facts to sustain the state's burden of proof. Thus, the trial court erred in denying appellant's motion to suppress. Reddish v. State, 161 Ga. App. 170 (288 SE2d 266) (1982); Liskey v. State, 156 Ga. App. 45 (1) (274 SE2d 89) (1980); Bland v. State, supra. "Had the search warrant [and] the affidavit been included in the record, the result might have been different." Reddish v. State, supra at 171.
2. The record discloses that the state failed to provide appellant with a copy of a written scientific report which had been prepared on behalf of the state by the State Crime Laboratory. A timely and proper demand for such had been made pursuant to Code Ann. § 27-1303 (now OCGA § 17-7-211). Cf. State v. Meminger, 249 Ga. 561 (1) (292 SE2d 681) (1982). Appellant's third and fourth enumerations cite as error the trial court's ruling which excluded the report itself but allowed the testimony of the state's witness who had prepared the report. We agree with appellant that the trial court's ruling was error, this case being controlled by the decisions in State v. Madigan, 249 Ga. 571 (1) (292 SE2d 406) (1982), and Tanner v. State, 160 Ga. App. 266 (1) (287 SE2d 268) (1981).
3. Appellant's remaining enumeration of error has no merit.
Judgment reversed. Deen, P. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2582251/ | 133 P.3d 1199 (2006)
110 Hawai`i 407
Molly SLUPECKI, Petitioner-Appellant
v.
ADMINISTRATIVE DIRECTOR OF the COURTS, STATE OF HAWAI`I, Respondent-Appellee.
No. 27260.
Supreme Court of Hawai`i.
May 3, 2006.
*1200 Earle A. Partington, on the briefs, Honolulu, for petitioner-appellant.
Kimberly A. Tsumoto and Girard D. Lau, Deputy Attorneys General, on the briefs, for respondent-appellee.
MOON, C.J., LEVINSON, NAKAYAMA, ACOBA, and DUFFY, JJ.
Opinion of the Court by ACOBA, J.
We hold that the district court of the first circuit (the court)[1] erred in sustaining the notice of default issued by the Director (Director or Chief Adjudicator) of the Administrative Driver's License Revocation Office (ADLRO) revoking the license of Petitioner-Appellant Molly Slupecki (Petitioner) for a period of three months. Therefore, the court's April 25, 2005 judgment is vacated and this case is remanded to the ADLRO to conduct a hearing on the matter of default. Prior to such hearing, the ADLRO shall inform Petitioner of the procedure for motions to set aside a default and the requirements to be satisfied for setting a hearing for that purpose.
I.
On February 25, 2005, Petitioner was involved in a motor vehicle accident in which she allegedly sideswiped a parked vehicle. After a field sobriety test, Petitioner was arrested and taken to the police station. At the station, Petitioner read and signed an acknowledgment of receipt of sanction information and implied consent testing choice form. Petitioner was charged with operating a vehicle under the influence of an intoxicant, a violation of Hawai`i Revised Statutes (HRS) § 291E-61(a) (Supp.2005).[2] Her license was then suspended by the arresting officer pursuant to HRS § 291E-61(b)(1) (Supp.2005).[3]*1201 The notice of administrative revocation, however, was not explained to Petitioner at this time.
HRS § 291E-37 (Supp.2005) provides in relevant part as follows:
Administrative review; procedures; decision. (a) The director automatically shall review the issuance of a notice of administrative revocation and shall issue a written decision administratively revoking the license and privilege to operate a vehicle, and motor vehicle registration if applicable, or rescinding the notice of administrative revocation. . . .
On March 4, 2005, a Notice of Administrative Review Decision was issued by an ADLRO review officer, sustaining the revocation of Petitioner's driver's license. The notice stated that, based upon the preponderance of the evidence considered on review, the revocation was sustained. As a first time DUI offender, Petitioner's license was revoked for a three-month period.[4]
On March 9, 2005, Petitioner requested a hearing on the revocation. In her sworn statement to the Chief Adjudicator dated March 18, 2005 (statement), Petitioner stated that, "[o]n March 9, 2005, I came to the ADLRO and paid the $30 fee to request a hearing. I was informed by the ADLRO staff that the hearing notice would be mailed to me at my home address in Kaneohe."
On March 10, 2005, the ADLRO mailed to Petitioner a Notice of Administrative Hearing. The notice stated that Petitioner's hearing was set for March 16, 2005 at 11:00 a.m. The notice contained a certificate of service, signed by one Pamela Lau for the "Chief Adjudicator" that stated, "I hereby certify that the original of this notice of administrative hearing was served on [Petitioner] on March 10, 2005 by mail, postage prepaid, at [Petitioner's home address]."
Petitioner did not appear at the hearing. On March 17, 2005, the hearing officer mailed Petitioner a Notice of Administrative Hearing Decision and a Notice of Default, revoking her license for three months. In this regard, HRS § 291E-38 (Supp 2005) states in pertinent part as follows:
Administrative hearing; procedure; decision....
(m) If the respondent fails to appear at the hearing, or if a respondent under the age of eighteen fails to appear with a parent or guardian, administrative revocation shall take effect for the period and under the conditions established by the director in the administrative review decision issued by the director under section 291E-37.
Petitioner maintains that she did not receive the hearing notice until Thursday, March 17, 2005. Petitioner points out that she retained her present counsel for the ADLRO hearing on Tuesday, March 15, 2005, prior to the date the hearing was set. *1202 Upon receipt of the hearing notice, she claims to have notified her counsel immediately.
A notice of representation, authorizing counsel to represent Petitioner, was received via fax by the ADLRO on March 17, 2005 at 8:04 a.m. On Friday, March 18, 2005, at 5:39 p.m.,[5] Petitioner's counsel faxed a letter to the ADLRO requesting (1) that Petitioner's default be set aside and she be given a new hearing, (2) that if the first request was denied, that ADLRO inform Petitioner of the procedure for setting aside defaults, (3) that ADLRO indicate what provisions existed for holding a hearing for that purpose, and (4) that a hearing be scheduled on the issue of whether the default should be set aside (the March 18 letter):
I am writing to request that a new hearing be scheduled in the above case. It appears that your office sent out a notice of hearing showing that the hearing was scheduled for March 16, 2005 to [Petitioner[6]] on March 10, 2005. Late in the afternoon of March 15, 2005, [Petitioner] retained me. I asked [Petitioner] to let me know the minute that she received the notice. It appears that I entered my appearance after the notice was mailed to [Petitioner] and after the hearing was scheduled. As you can see from [Petitioner's] attached letter, she did not receive the notice until March 17, 2005. In view of the lack of notice, it only seems fair that the default should be set aside and a new hearing scheduled.
I also wish to know what prescribed procedure the ADLRO has for setting aside defaults that are entered in cases such as this and what provision there is for a hearing to set aside a respondent's default. I hereby request such a hearing if you are unwilling to set this case for a new hearing.
(Emphasis added.) In addition, Petitioner's counsel attached the following sworn statement from Petitioner:
I am the [Petitioner] in the above case. On March 9, 2005, I came to the ADLRO and paid the $30 fee to request a hearing. I was informed by the ADLRO staff that the hearing notice would be mailed to me at my home address in Kaneohe. On March 15, 2005, I checked my mail and the notice had not yet been received. On that same day, I hired attorney Earle A. Partington to represent me in this matter and informed him that I would let him know as soon as I received the hearing notice. On March 17, 2005, I checked my mail and found the hearing notice. The notice stated my hearing had been set for the previous day. Had I known in advance of the hearing, I would most certainly have informed my attorney so that he could either attend or continue the hearing.
I swear that the above is true and correct.
(Emphasis added.)
On March 22, 2005, the Chief Adjudicator responded to Petitioner's request in a letter to her counsel, stating that (1) Petitioner failed to appear at her administrative hearing, (2) the information submitted was insufficient to set aside the default, (3) Petitioner's statement was "not credible and no independent documentation" had been submitted, (4) the default would not be set aside, nor would a hearing be scheduled, (5) Petitioner had satisfied the procedure for "a possible reconsideration of a default," but no new hearing on revocation would be held, and (7) Petitioner could seek judicial review (March 22 letter).
This responds to your March 18, 2005 written request to reconsider and set aside the Notice of Administrative Hearing Decision ("NAHD"), issued on March 17, 2005, due to the failure of [Petitioner] to appear at her March 16, 2005 hearing. The record reflects that [Petitioner's] hearing was timely set and the Notice of Administrative Hearing properly mailed to [Petitioner's] address. [Petitioner] failed to appear at her duly scheduled and noticed hearing.
The information you provided with this letter, dated March 18, 2005 and attached *1203 to [Petitioner's] statement, dated March 18, 2005, in support of your request for reconsideration are insufficient to set aside the default. Further, [Petitioner's] statement is not credible and no independent documentation in support of her statement was submitted. Hence, pursuant to HRS § 291E-38(m), your request to set aside the default and schedule a new hearing is hereby denied. The administrative driver's license revocation shall take effect for the period and under the conditions set forth in the Notice of Administrative Review Decision issued on March 4, 2005. You may file a Petition for Judicial Review of the NAHD within 30 days of the date the decision was issued (See HRS § 291E-40).
Finally, your submittal of your letter and attachment have satisfied the procedure established for a possible reconsideration of a default decision and no hearing shall be set.
(Emphases added.)
II.
Pursuant to HRS § 291E-40 (Supp 2005),[7] Petitioner sought judicial review on March 24, 2005. A hearing was held on April 22, 2005. The court affirmed the administrative revocation.
In its decision, the court recognized that revocation of a driver's license was subject to due process requirements:
The theme in all of the cases is that a driver's license is a constitutionally protected property right. As such, it must not be taken away without due process. Moreover, courts are hesitant to have cases decided on a default basis, preferring that decisions be made on the merits of the case. Thus, if a party defaults, court rules permit that party to seek to explain the default and have it set aside.
(Citations omitted.) However, the court found that the issue was not one of whether procedural due process had been denied, but, rather, "whether the record reflects the ADLRO's willingness to consider a request to set aside a default and, if so, whether the ADLRO abused its discretion or committed some other error in refusing to set aside Petitioner's default or setting a hearing on the request."
The court found that the ADLRO was justified in rendering its decision. The court stated in pertinent part:
While the ADLRO's letter in denying the request did not explain its procedures, it announced that there were established procedures to reconsider a default and that the attorney's letter and attachment satisfied those procedures. This indicates both a willingness to consider setting aside a default and procedures for doing so. . . .
In denying the request, the ADLRO stated that Petitioner's statement was not credible and that no independent documentation supporting the request was submitted. Both of these statements seem reasonable given the record. Petitioner does not claim she failed to receive the notice. All she claims is that it was not in her mail on March 15, 2005, and was in her mail on March 17, 2005. No mention is made of the mail on March 16, 2005. If it was received on March 17, 2005 and her attorney was already retained as claimed, one must ask why the request to set aside the default was not submitted until after business hours on March 18, 2005. Moreover, Petitioner's claim is inconsistent with the known facts of the time of mailing and receipt of the Notice of Administrative Review Decision. Given these facts, the ADLRO was not required to simply accept Petitioner's statement that it took seven days for the notice to reach Kaneohe from Honolulu. Thus, this is quite different from situations in which counsel acknowledges receipt and acknowledges making a scheduling mistake attempting to demonstrate reasons therefor, arguably making the mistake excusable.
*1204 It is too easy for one to simply claim non-receipt or late receipt to suggest that such a claim always leads to a setting aside of a default or the requirement of a hearing thereon, especially when the claim is inconsistent with known facts.
(Emphases added.) Petitioner then appealed to this court on April 27, 2005.
III.
On appeal, Petitioner argues that the court "erred in failing to set aside the default entered against [Petitioner] because (1) there is no known established procedure at the ADLRO for setting aside defaults, ... (2) [Petitioner] was [not given] prior notice of what procedure would be followed for her request to set aside the default and [(3) she was denied] an opportunity to be heard at a hearing as to why the default should be set aside[.]" Essentially, Petitioner asserts that she was not afforded procedural due process of law as guaranteed under article I, section 5 of the Hawai`i Constitution and the Fourteenth Amendment to the United States Constitution.
Respondent answers that (1) Petitioner's claim regarding a right to prior notice of the ADLRO's procedure for setting aside defaults (and a hearing on setting aside defaults) does not warrant reversal; (2) the ADLRO provided Petitioner with notice and the opportunity to be heard prior to her license revocation; and (3) in the alternative, the court should remand this case to the ADLRO for a hearing on Petitioner's default.
To this alternative argument, Petitioner replies that the court "may not remand this case to the ADLRO for a hearing [on the default] because to do so would violate legislative intent that there be no remands," pursuant to HRS § 291E-40 (Supp.2005).[8] In addition, Petitioner urges this court to impose sanctions against the Attorney General, counsel for the ADLRO, for unethical conduct. Petitioner argues that mention of Petitioner's intoxilyzer test results is not relevant to the appeal and that the Attorney General included this information in "an unethical attempt to prejudice this court against [Petitioner]."[9]
Petitioner asks that this court reverse the decision of the court upholding her driver's license revocation and order that her driver's license be returned to her.
IV.
"`Review of a decision made by a court upon its review of an administrative decision is a secondary appeal. The standard of review is one in which this court must determine whether the court under review was right or wrong in its decision.'" Freitas v. Admin. Dir. of the Courts, 108 Hawai`i 31, 43, 116 P.3d 673, 685 (2005) (quoting Soderlund v. Admin. Dir. of the Courts, 96 Hawai`i 114, 118, 26 P.3d 1214, 1218 (2001)) [hereinafter "Freitas II"].
V.
In connection with Petitioner's first argument, article I, section 5 of the Hawai`i Constitution and the Fourteenth Amendment to the United States Constitution guarantee, inter alia, that "no person shall be deprived of life, liberty, or property without the due process of law." In Kernan v. Tanaka, 75 Haw. 1, 8, 856 P.2d 1207, 1212 (1993), Kernan's license was revoked pursuant to HRS chapter 286, part XIV, for violating HRS § 291-4. Kernan argued that the Administrative Revocation Program law facially violated drivers' due process rights because it failed to provide sufficient procedural protections. Id. at 13, 856 P.2d at 1214. In resolving that issue this court said:
[A] claim of a due process right to a hearing requires a two step analysis: (1) is the particular interest which the claimant seeks to protect by a hearing "property" within the meaning of the due process clauses of the federal and state constitutions, and (2) if the interest is "property" what specific procedures are required to protect it.
*1205 Id. at 21, 856 P.2d at 1218 (quoting Aguiar v. Hawaii Hous. Auth., 55 Haw. 478, 495, 522 P.2d 1255, 1266 (1974)).
As to the first step, this court stated that "[a] driver's license is a constitutionally protected interest and due process must be provided before one can be deprived of his or her license." Id. at 21, 856 P.2d 1207, 856 P.2d at 1218 (citing Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971)). As to the second step, this court applied the test outlined in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976):
[The] identification of the specific dictates of due process generally requires consideration of three distinct factors: [1] the private interest that will be affected by the official action; [2] the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and [3] the government's interest, including the function involved and the fiscal or administrative burdens that the additional procedures would entail.
Kernan, 75 Haw. at 22-23, 856 P.2d at 1218-19 (brackets in original).
In this case, the application of the Mathews factors to the procedure employed by the ADLRO in denying Petitioner's request for reconsideration evidences a violation of due process requirements. First, the effect of the default decision was to deprive Petitioner of her driver's license. This court has already held that a driver's license is a constitutionally protected property interest. Id. at 21, 856 P.2d at 1218.
Second, notwithstanding the option to appeal the ADLRO's decision, the risk of an erroneous deprivation of such interest through the procedures used is great, as there was no apparent procedure established by the ADLRO for determining whether a default was appropriately entered. Kernan held that "[t]he fact that Hawaii's procedure provides for a predeprivation review and hearing `abundantly weights this second part of the [Mathews] analysis[.]'" Id. at 27, 856 P.2d at 1221 (emphasis in original and emphasis added) (brackets in original). In the absence of a similar "review and hearing," there is a high risk that there will be an erroneous deprivation of Petitioner's property.
Finally, an evaluation of the government's interest, which includes the function of the ADLRO and the fiscal and administrative burdens that any additional or substitute procedural requirement would entail, when balanced, are outweighed by Petitioner's constitutionally protected property and due process rights. In Kernan, public safety was considered the main governmental concern, and this court determined that the "revocation program allowed the State to achieve [its] goals without overburdening individuals or the judicial system." Id. at 29, 856 P.2d at 1229.
Unlike Kernan, this case involves a denial of a hearing altogether. In light of Kernan, there is no governmental interest which supports denial of such a hearing on a default order. Petitioner has been denied her constitutional right to procedural due process before deprivation of a property interest. Therefore, in applying the Mathews analysis we conclude that the denial of a hearing on whether to set aside a default order violates due process requirements.
VI.
As to Petitioner's first argument, Respondent contends that the ADLRO provided Petitioner with a "duly scheduled and noticed hearing" and that Petitioner defaulted with respect to that hearing. To the contrary, as discussed above, Petitioner has not had a hearing with respect to the revocation of her license or with respect to the default entered by the Director which precluded the revocation hearing. A hearing is "`a proceeding where evidence is taken to determine issue[s] of fact and to render [a] decision on [the] basis of that evidence.'" Takahashi v. Tanaka, 10 Haw.App. 322, 327, 871 P.2d 796, 798 (1994)[10] (quoting Black's Law Dictionary *1206 721 (6th ed.1990)). In Takahashi, the Intermediate Court of Appeals (ICA) held that a judgment entered by default does not amount to a hearing. Id.
In this case, Petitioner was clearly denied a hearing guaranteed by the due process clause. To reiterate, Petitioner made three requests of the ADLRO Chief Adjudicator in the March 18 letter, including one for a new hearing or, alternatively, a hearing on whether the default should be set aside. In response, the Chief Adjudicator denied all of Petitioner's requests.
Additionally, the Chief Adjudicator apparently made a determination of Petitioner's veracity with respect to her sworn statement, without a hearing. See Apolskis v. Concord Life Ins. Co., 445 F.2d 31, 34 n. 1 (7th Cir.1971) (stating that "[c]redibility determinations are the province of the district judge" but that "a trial judge may not totally disregard uncontradicted and apparently creditable testimony where no basis for so doing appears in the record").
In the instant case, Petitioner's statement was not so inherently incredible as to warrant out-right rejection. The Chief Adjudicator stated summarily that "[Petitioner's] statement is not credible and no independent documentation in support of her statement was submitted," adopting "the expedient of technically accepting the offered proof but summarily rejecting its weight or credibility." Frito-Lay, Inc. v. Morton Foods, Inc., 316 F.2d 298, 301 (10th Cir.1963) (holding that the summary rejection of a witness as non-credible is prejudicial and the proper administration of justice requires more); cf. Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir.2005) (concluding that a credibility determination cannot be made on summary judgment).
VII.
As to her second argument, Petitioner contends that the Chief Adjudicator' ruling on the merits before a procedure for setting aside default was made known to Petitioner is a procedural defect and therefore the court erred in failing to address Petitioner's request for notice and for a hearing on the default issue. Generally, "except in emergency situations[,] due process requires that when a State seeks to terminate an interest . . ., it must afford `notice and opportunity for hearing appropriate to the nature of the case' before the termination becomes effective." Guillemard Gionorio v. Contreras Gomez, 301 F. Supp. 2d 122, 133 (D.Puerto Rico 2004) (quoting Bell v. Burson, 402 U.S. 535, 542, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971)).
In Freitas II, Freitas asserted that he was deprived of due process because HRS chapter 291E failed to outline a specific procedure to be employed in an administrative hearing. 108 Hawai`i at 44, 116 P.3d at 686. Freitas requested that the hearing officer explicitly state what procedure would be employed in the hearing, who had the burden of proof, and when such burden shifted. Id. at 41, 116 P.3d at 683. In response, the hearing officer noted that "the statute [allowed the hearing officer] to conduct and control the course of [the] hearing and the procedure that [the court] would follow." Id.
This court relied on Desmond v. Admin. Dir. of the Courts, 91 Hawai`i 212, 982 P.2d 346 (App.1998), rev'd on other grounds, 90 Hawai`i 301, 978 P.2d 739 (1999), which held that a hearing officer "did not err in following her procedure rather than the procedure proposed by [the motorist]." Freitas II, 108 Hawai`i at 44, 116 P.3d at 686 (citing Desmond, 91 Hawai`i at 219, 982 P.2d at 353) (brackets in original). In Desmond, the ICA noted that "it is advisable that, at the commencement of the administrative hearing, the Hearing Officer inform the parties what procedure he or she will follow." 91 Hawai`i at 219, 982 P.2d at 353 (emphasis added).
*1207 In rejecting Freitas's argument, this court observed that "procedural due process requires that a person have an `opportunity to be heard at a meaningful time and in a meaningful manner.'" 108 Hawai`i at 44, 116 P.3d at 686 (quoting Farmer v. Admin. Dir. of the Courts, 94 Hawai`i 232, 238, 11 P.3d 457, 463 (2000)); cf. Padilla-Agustin v. Immigration & Naturalization Serv., 21 F.3d 970, 974 (9th Cir.1994) (holding that due process requires not only notice, but "sufficient information to allow [Petitioner] to prepare and present objection to the agency's preliminary action or decision").[11] Since the hearing officer had advised Freitas of the procedure that would be followed, this court declined to overrule Desmond and held that the hearing officer did not commit reversible error. 91 Hawai`i at 220-21, 982 P.2d at 354-55.
Unlike Freitas II, in which there was meaningful prior instruction by the ADLRO on the procedure to be followed at the revocation hearing, the Chief Adjudicator's March 22 letter did not inform Petitioner of the procedure available to set aside default orders. The court did not consider whether the absence of notification of a procedure constituted a violation of due process. Instead, the court decided that the issue it was concerned with, as mentioned before, was whether "the ADLRO was willing to consider a request to set aside a default and, if so whether the ADLRO abused its discretion or committed some other error in refusing to set aside" the default. The court thus ruled that it was sufficient that a procedure existed.
But as the court correctly pointed out, no procedure is ever explained in the March 22 letter, reproduced supra. The court acknowledged that "[w]hile the ADLRO's letter in denying the request did not explain its procedure, it announced that there were established procedures to reconsider a default[.]" (Emphasis added.) The letter only advised Petitioner that a procedure existed and had been applied. In Freitas II, however, this court reiterated that it is advisable that "at the commencement of the administrative hearing, the hearing officer inform the parties what procedure he or she will follow" prior to the application of such procedures. Freitas II, 108 Hawai`i at 45, 116 P.3d at 687 (quoting Desmond, 91 Hawai`i at 219, 982 P.2d at 353). The failure to notify Petitioner of the procedure to follow in the ADLRO's "consider[ation of] a request to set aside default" infringed on Petitioner's procedural due process right to be heard "at a meaningful time and in a meaningful manner." Id. at 44, 116 P.3d at 686 (internal quotation marks and citation omitted).
We note, also, that in upholding the ADLRO decision, the court incorrectly determined that
while the procedure followed in this case was not ideal, it provided Petitioner with an opportunity to seek reversal of the default and provided guidance as to what it would take to justify that reversal. Petitioner either could not or chose not to submit such evidence to support her assertion of late receipt.
(Emphasis added.) This is not an accurate reading of the March 22 letter. The Chief Adjudicator ruled that the information submitted with the March 18 letters "[was] insufficient to set aside the default," but the Chief Adjudicator did not inform Petitioner in advance of what would be sufficient to set aside a default. Additionally, the Chief Adjudicator maintained in the letter that "no independent documentation . . . was submitted," but there is nothing in the record to indicate that the Chief Adjudicator ever informed Petitioner that "independent documentation" was required or in what form the documentation should be in or what the contents of the submission should include. Plainly, Petitioner was not provided with information sufficient to prepare and present objections to the agency's decision. See Padilla, supra.
*1208 In referring to Petitioner's choice to "submit such evidence," the court manifested an expectation that Petitioner was required to submit what in fact she had not been informed she must provide. What constitutes "such evidence" was never defined. The March 22 letter did not set forth what would be considered sufficient to set aside the default. Thus, contrary to the court's statement, the March 22 letter did not "provide[ ] guidance as to what it would take to justify that reversal"; it merely stated that the March 18 letter and Petitioner's attached statement were insufficient.
Further, the court was incorrect in stating that "Petitioner either could not or chose not to submit such evidence to support her assertion of late receipt." For, after relating that the matters submitted by Petitioner were insufficient, the March 22 letter concluded that "hence, pursuant to HRS § 291E-38(m), your request to set aside the default and schedule a new hearing is hereby denied." It then directed that "[t]he administrative driver's license revocation shall take effect" and Petitioner's only option for recourse was to "file a petition for judicial review." (Emphasis added.) Petitioner had no opportunity and, hence, no choice "to submit such evidence" in response to the ADLRO letter inasmuch as it was the first time Petitioner was informed of the need for "such evidence."
VIII.
Respondent urges us to remand the case to the ADLRO. Petitioner argues that we are prohibited from doing so pursuant to HRS § 291E-40(d), which states that "[t]he court shall not remand the matter back to the director for further proceedings consistent with its order." Petitioner reminds us that "[w]hen faced with an issue of statutory interpretation, `[o]ur primary duty is to ascertain and give effect to the intention of the legislature, which is obtained primarily from the language of the statute itself.'" Lara v. Tanaka, 83 Hawai`i 24, 26, 924 P.2d 192, 194 (1996) (quoting Ing v. Acceptance Ins. Co., 76 Hawai`i 266, 270, 874 P.2d 1091, 1095 (1994)). In State v. Kalama, 94 Hawai`i 60, 63, 8 P.3d 1224, 1228 (2000), this court stated that "where the statutory language is plain and unambiguous, [the appellate court's] sole duty is to give effect to its plain and obvious meaning." (Internal quotation marks and citation omitted.) In doing such, we note that under HRS § 291E-40(a), the reference to the "court" is to the district court and, therefore, does not preclude this court from remanding the case.[12]
Moreover, we note that in Freitas v. Admin. Dir. of the Courts, 104 Hawai`i 483, 484, 92 P.3d 993, 994 (2004) [hereinafter "Freitas I"], this court remanded a case back to the ADLRO to afford the petitioner a hearing on his objections, as is the case here. In that case, Freitas contended that he was denied a hearing on whether ADLRO hearings were public, thereby denying him due process. Id. at 484-85, 92 P.3d at 994-95. This court agreed and remanded. Id. at 489, 92 P.3d at 999. Specifically, it was stated that "the *1209 ADLRO denied Freitas a hearing on his objections to the identification and sign-in procedures. . . . [H]e is entitled to show that the procedure limiting public access was not warranted." Id. The same action is appropriate in the instant case.
IX.
Based on the foregoing, the court's April 25, 2005 judgment is vacated and the case is remanded to the ADLRO in accordance with our decision herein.
NOTES
[1] The Honorable William Cardwell presided.
[2] Hawai`i Revised Statutes (HRS) § 291E-61(a) provides as follows:
Operating a vehicle under the influence of an intoxicant. (a) A person commits the offense of operating a vehicle under the influence of an intoxicant if the person operates or assumes actual physical control of a vehicle:
(1) While under the influence of alcohol in an amount sufficient to impair the person's normal mental faculties or ability to care for the person and guard against casualty;
(2) While under the influence of any drug that impairs the person's ability to operate the vehicle in a careful and prudent manner;
(3) With .08 or more grams of alcohol per two hundred ten liters of breath; or
(4) With .08 or more grams of alcohol per one hundred milliliters or cubic centimeters of blood.
[3] HRS § 291E-61(b) states in pertinent part as follows:
(b) A person committing the offense of operating a vehicle under the influence of an intoxicant shall be sentenced as follows without possibility of probation or suspension of sentence:
(1) For the first offense ...:
. . . .
(B) Ninety-day prompt suspension of license and privilege to operate a vehicle during the suspension period ... [.]
(Emphasis added.)
[4] At this point, the term of Petitioner's administrative revocation would have expired. We note that a three-month revocation will likely expire before an appeal can be heard before an appellate court. However, Petitioner's claim is still justiciable because "a court will not dismiss a case on the grounds of mootness where a challenged governmental action would evade full review because the passage of time would prevent any single plaintiff from remaining subject to the restriction complained of for the period necessary to complete the lawsuit." In re Thomas, 73 Haw. 223, 226, 832 P.2d 253, 255 (1992) (quoting Life of the Land v. Burns, 59 Haw. 244, 251, 580 P.2d 405, 409-10 (1978)).
Additionally, when the question involved affects the public interest and an authoritative determination is desirable for the guidance of public officials, a case will not be considered moot. See United Pub. Workers, AFSCME, Local 646 v. Yogi, 101 Hawai`i 46, 58, 62 P.3d 189, 201 (2002) (Acoba, J., concurring) (stating that "[a]mong the criteria . . . are the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question[ ]" (quoting Johnston v. Ing, 50 Haw. 379, 381, 441 P.2d 138, 140 (1968) (citations omitted))); see also Avis K. Poai, Recent Developments: Hawaii's Justiciability Doctrine, 26 U. Haw. L.Rev. 537, 548-52 (Summer 2004) (observing that the "public interest" and "capable of repetition, yet evading review" exceptions are often merged, but should not be as they are two distinct exceptions that require different considerations).
[5] The letter was apparently received by the ADLRO on Monday, March 21, 2005, at 11:25 a.m.
[6] In the letter Petitioner was referred to as "Respondent."
[7] HRS § 291E-40, entitled "Judicial review; procedure," reads in pertinent part:
(a) If the director sustains the administrative revocation after an administrative hearing, the respondent ... may file a petition for judicial review within thirty days after the administrative hearing decision is mailed. The petition shall be filed with the clerk of the district court[.]
[8] HRS § 291E-40(d) states that "[t]he court shall not remand the matter back to the director for further proceedings consistent with its order."
[9] In light of the disposition herein, we do not reach this issue.
[10] In Takahashi v. Tanaka, 10 Haw.App. 322, 324, 871 P.2d 796, 797 (1994), the district court affirmed a default order issued by the ADLRO pursuant to HRS § 286-259(k) when Takahashi failed to appear at his scheduled hearing. Relying on HRS § 286-259(h), which provides that an administrative "hearing shall be recorded," Takahashi had argued that the district court erred because "no transcript of the proceedings before the hearing officer was prepared." Id. In determining that no error occurred, the Intermediate Court of Appeals stated that "since there was no `hearing' within the purview of HRS § 286-259(h), there was no obligation to record the proceedings," concluding that a failure to appear resulting in a default is not a hearing. Id. at 328, 871 P.2d at 798. The issues raised by Petitioner in this case were not raised in Takahashi.
[11] In Padilla-Agustin v. Immigration & Naturalization Serv., 21 F.3d 970, 975 (9th Cir.1994), the Board of Immigration Appeals's Notice of Appeal Form mentions that the applicant must "specify reasons for this appeal" and to "continue on separate sheets of paper if necessary." The back of the form notifies applicants that "if the factual or legal basis for the appeal is not sufficiently described the appeal may be summarily dismissed." Id.
[12] Under HRS § 291E-40(a), the reference to "court" is to the district court. HRS § 291E-40 states in relevant part:
(a) If the director sustains the administrative revocation after an administrative hearing, the respondent ... may file a petition for judicial review within thirty days after the administrative hearing decision is mailed. The petition shall be filed with the clerk of the district court in the district in which the incident occurred[.]. . . The filing of the petition shall not operate as a stay of the administrative revocation, nor shall the court stay the administrative revocation pending the outcome of the judicial review.
. . .
(b) The court shall schedule the judicial review as quickly as practicable, and the review shall be on the record of the administrative hearing without taking of additional testimony or evidence. If the petitioner fails to appear without just cause or, in the case of a petitioner under the age of eighteen, the petitioner fails to appear with a parent or guardian, the court shall affirm the administrative revocation.
(c) The sole issues before the court shall be whether the director:
. . . .
(d) The court shall not remand the matter back to the director for further proceedings consistent with its order.
(Emphases added.) HRS § 291E-40(a) allows for "judicial review" by the "district court." HRS § 291E-40(b) states that "the court shall schedule the judicial review." As the "judicial review" provided for in (a) is to be conducted by the "district court," it follows that references to "the court" in HRS § 291E-40 mean the "district court." Therefore, HRS § 291E-40(d) does not preclude this court from remanding the case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3078403/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
THREE LEGGED MONKEY, L.P.,
JAMES MICHAEL ARMSTRONG, § No. 08-12-00182-CV
AND 2700 N. MESA, LLC,
§ Appeal from
Appellants/Cross-Appellees,
§ 327th District Court
v.
§ of El Paso County, Texas
IRENE BORUNDA, ROBERT
BORUNDA, JOHN BILLINGSLEA, § (TC # 2012-DCV00099)
AND ANNA NAZARIO,
§
Appellees/Cross-Appellants.
§
JUDGMENT
The Court has considered this cause on joint motion to dismiss and concludes the motion
should be granted and the appeal should be dismissed, in accordance with the opinion of this
Court. We therefore dismiss the appeal and cross-appeal with prejudice. We further order costs
be assessed against the party incurring same. We further order that this decision be certified
below for observance.
IT IS SO ORDERED THIS 18TH DAY OF DECEMBER, 2013.
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J., not participating | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1743552/ | 289 Wis. 2d 550 (2006)
710 N.W.2d 725
2006 WI App 31
STATE v. ROBINSON.[]
No. 2005AP000276 CR.
Court of Appeals of Wisconsin.
January 31, 2006.
Unpublished opinion. Affirmed.
NOTES
[] Petition to review filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333180/ | 299 S.E.2d 311 (1983)
STATE of North Carolina
v.
Elmer Leroy PEOPLES, Sr.
No. 8212SC488.
Court of Appeals of North Carolina.
February 1, 1983.
*312 Atty. Gen., Rufus L. Edmisten by Sp. Deputy Atty. Gen., H.A. Cole, Jr. and Asst. Atty. Gen., Fred R. Gamin, Raleigh, for the State.
*313 Asst. Public Defender, James R. Parish, Fayetteville, for defendant-appellant.
ARNOLD, Judge.
Defendant first assigns error to the denial of his motion to suppress the in-court identification of him by Borden's nightshift supervisor, Mr. Steven Reams. He contends that the identification was tainted by a prior one-on-one confrontation between the witness and the defendant. Confrontation occurred on the day Miller was brought to the police station for a photographic line-up. After identifying the defendant from a set of six photographs, Reams again pointed him out as the robber when police officers inadvertently allowed the witness to view the defendant in a hall while waiting for an elevator. Reams had not been told that defendant would be present at the Law Enforcement Center. Although such a single confrontation for identification purposes is widely condemned, we do not find that this unplanned exhibition was violative of due process standards when viewed under the totality of the circumstances. See, State v. Dawson, 302 N.C. 581, 276 S.E.2d 348 (1981); State v. Thomas, 292 N.C. 527, 234 S.E.2d 615 (1977). On voir dire Reams testified that on the night of the robbery he was in a lighted room with the defendant and was able to observe his uncovered face in close proximity for a total of six to eight minutes. He unequivocably stated that he based his identification of the defendant upon his observation of him made upon the night of the robbery. The trial judge found that the witness had ample opportunity to view the defendant at the time of the crime and that the confrontation at the Law Enforcement Center was unintentional. Since these facts are supported by the evidence, the court's holding that the in-court identification was competent will not be disturbed upon appeal. State v. Thomas, supra. This assignment of error is without merit.
In his next assignment of error defendant argues that the trial judge erred in allowing into evidence (1) testimony of Bruce Miller, who had been previously hypnotized by police officers, and (2) a videotape of the hypnosis session.
The trial judge entered the following order denying defendant's motion to suppress Miller's testimony:
FINDINGS OF FACT
(1) Bruce C. Miller was hypnotized on October 8, 1981 by S.C. Sessoms, Jr., a Detective with the Fayetteville Police Department, in the Law Enforcement Center in Fayetteville, North Carolina, with Officer Pulliam, Detective Bruce Daws and Captain Hart in the room.
(2) Prior to Bruce C. Miller being hypnotized, Detective Sessoms stated that the purpose of the hypnotic session was to enhance the memory of Bruce C. Miller.
(3) The hypnotic session was video-taped.
(4) Prior to this trial, the attorneys for the defendants were informed of the hypnotic session and given access to the video-tape by the State.
(5) Prior to October 8, 1981, Bruce C. Miller had been arrested and made a statement concerning the crimes for which the defendants are being tried.
(6) On December 9, 1981, the court along with the attorneys for the State and the defendants, viewed the video-tape; and the hypnotist inquired of Bruce C. Miller what he did on May 25 and 26, 1980, who he was with and a few other questions.
(7) No evidence was offered by the State or the defendants in this hearing.
CONCLUSIONS OF LAW
(1) Bruce C. Miller gave answers under hypnosis as a result of his voluntary thought process and not as a result of any suggestion by the hypnotist.
(2) The hypnotist was not suggestive to Bruce C. Miller.
(3) The hypnotic session was not improperly conducted such as to render the testimony of Bruce C. Miller inadmissable.
*314 (4) The totality of circumstances reveals that the hypnotic session was not unnecessarily suggestive as to offend fundamental standards of decency, fairness and justice.
(5) Permitting Bruce C. Miller to testify after being hypnotized would not violate the defendants constitutional rights.
(6) The motion by the defendants should be denied.
IT IS ORDERED that the motion by the defendants be and it is hereby denied.
Prior to trial defendant's attorney was allowed to view the videotape of the hypnosis session. At trial he was given ample opportunity to cross-examine both the witness Miller and the detective who conducted the hypnosis. The jury was fully advised that this witness had been previously hypnotized. Defendant does not contend on appeal that the hypnotist in any way suggested ideas to Miller or influenced his memory of the events relating to the crime.
Inasmuch as defendant has failed to show in any respect that the witness was rendered untrustworthy as a result of his being hypnotized, we find no error in the trial judge's denial of defendant's motion to suppress Miller's testimony on this ground. The fact that the witness was hypnotized prior to trial is a matter bearing upon the credibility of his testimony and not its competency. State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978). The weight to be given evidence presented by a witness, whose memory was considered to be in need of refreshing by an outside source, was a matter for the jury's consideration.
However, we do not approve the admission into evidence and jury view of the videotape of the hypnosis session. Under G.S. 8-97 videotapes now may be introduced as substantive evidence upon laying a proper foundation. However, the particular nature of the video portrayal on this tape also placed upon the State the burden to meet other "applicable evidentiary requirements." G.S. 8-97. Inasmuch as no North Carolina decision has resolved the legal issues surrounding videotapes of hypnotic sessions, it was incumbent upon the prosecution to present the trial judge with a sufficient basis to constitute this tape as competent evidence in the courtrooms of this state. Compare, Wood v. Stevens & Co., 297 N.C. 636, 256 S.E.2d 692 (1979). We find the State failed to meet its burden.
The standard for the admission of new kinds of scientific evidence and procedures was set out in State v. Temple, 302 N.C. 1, 273 S.E.2d 273 (1981) as follows:
"This court is of the opinion, that we should favor the adoption of scientific methods of crime detection, where the demonstrated accuracy and reliability has become established and recognized. Justice is truth in action, and any instrumentality, which aids justice in the ascertainment of truth, should be embraced without delay."
Id. at p. 12, 273 S.E.2d at p. 280, quoting from State v. Powell, 264 N.C. 73, 74, 140 S.E.2d 705, 706 (1965); see also, State v. Steele, 27 N.C.App. 496, 219 S.E.2d 540 (1975) [applying the test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923) for admissibility of polygraph evidence].
Since the record before us is devoid of any effort to demonstrate to the court the scientific acceptance of the reliability and accuracy of hypnosis, the State did not establish the competency of the videotape and we need not decide whether the prosecution met the above test for the admission of this type of evidence. However, we note that the issue of the admissibility of hypnotically induced testimony in a criminal trial has engendered significant controversy in the legal community and the overwhelming majority of courts have excluded out-of-court statements and tape-recorded testimony from hypnosis sessions when offered as substantive evidence. See e.g., Greenfield v. Robinson, 413 F.Supp. 1113 (W.D.Va.1976); Jones v. State, 542 P.2d 1316 (Okl.Cr.App. 1975); State v. Jorgensen, 8 Or.App. 1, 492 P.2d 312 (1971); State v. Harris, 241 Or. 224, 405 P.2d 492 (1965); State v. White, 60 Wash.2d 551, 374 P.2d 942 (1962), cert. denied, 375 U.S. 883, 84 S.Ct. 154, 11 L.Ed.2d 113 (1963); Note, Hypnotically-Induced *315 Testimony Held Inadmissible in Criminal Proceeding, 7 Wm. Mitchell L.Rev. 264 (1981); Pelanda, 14 Akron Law Review 609 (1981); Annot., 92 A.L.R.3d 442 (1979). As pointed out in State v. McQueen, 295 N.C. 96, 244 S.E.2d 414 (1978), the admission of a videotape containing the extra-judicial statements of a person under hypnosis is entirely different from testimony of a previously hypnotized witness about his present in-court recollection of past events. Nor do we consider a tape recording of a hypnosis session in any way admissible as corroboration of the testimony of a witness stating his present recall of prior incidents. Cf., State v. Fowler, 29 N.C.App. 529, 225 S.E.2d 110 (1976) (results of polygraph not admissible for corroborative purposes).
Although we do find the admission of the videotape to be error, we do not hold the error to be prejudicial in light of the overwhelming presence of competent evidence centering on defendant's guilt of the crime with which he was convicted. See, State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972). Bruce Miller testified as to defendant's planning and commission of the crime. The plant supervisor positively identified the defendant as one of the men that he witnessed robbing the plant of buckets of silver. Defendant was also identified as a seller of three buckets of granulated silver shortly after the robbery. Under the facts of this case we find it to be clear that the improper admission into evidence of the videotape was harmless error.
In his final assignment of error defendant contends that the trial judge erred in failing to dismiss the charge of armed robbery at the close of the evidence. He argues there existed a fatal variance between the indictment which alleged ownership of the silver in a corporation known as Borden Chemical and the proof at trial which failed to establish this corporate ownership. We do not agree. "An indictment for robbery will not fail if the description of the property is sufficient to show it to be the subject of the robbery and negates the idea that the accused was taking his own property." State v. Spillars, 280 N.C. 341, 345, 185 S.E.2d 881, 884 (1972). Steve Reams, the shift supervisor at Borden Chemical, testified that defendant took buckets of silver at gunpoint from a locked room located on the premises of the plant and that the substance taken was an integral ingredient used by the plant in its manufacturing process. We find this evidence sufficient to overcome defendant's motion to dismiss.
We hold that defendant received a fair trial without prejudicial error.
No error.
HILL and JOHNSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333182/ | 165 Ga. App. 36 (1983)
299 S.E.2d 576
JONES et al.
v.
THE STATE.
WIMBERLY
v.
THE STATE.
65040, 65041.
Court of Appeals of Georgia.
Decided January 4, 1983.
Frank B. Hester, for appellants (case no. 65040).
Michael C. Cherof, for appellant (case no. 65041).
Stephen A. Williams, District Attorney, Marcus R. Morris, J. O. Partain III, Assistant District Attorneys, for appellee.
POPE, Judge.
Defendants George Jones, Timothy Foster, Mark Wimberly and one Floyd Dixon were indicted for burglary, theft by taking and, all except Dixon, for being habitual felons. They pleaded not guilty. A joint trial was scheduled but Dixon was severed because he made an outburst in open court. The trial of defendants Jones, Foster and Wimberly ended with a hung jury and a mistrial was declared. Upon retrial, defendants were found guilty of both burglary and theft by taking and were each sentenced to twenty years. Dixon was also joined in the second trial and he was likewise convicted.
Defendants Jones, Foster and Wimberly here challenge their convictions, asserting the general grounds, and defendant Wimberly additionally alleges prosecutorial misconduct. Dixon is not involved in the appeals here joined.
1. "A person commits burglary when, without authority and with the intent to commit a felony or theft therein, he enters ... any building ... or any room or any part thereof." Code Ann. § 26-1601 (a) (now OCGA § 16-7-1 (a)). Count One of the indictment charged defendants with burglary, alleging that they "did without authority and with intent to commit a theft therein, enter a room known as the front office in the building and place of business of the Green Spot Supermarket, Incorporated located at 309 West Emory Street. ..." Count Two charged defendants with theft by taking in that they unlawfully took in excess of $200.00 in cash from the supermarket. The state relied solely upon circumstantial evidence and therefore it had the burden of proving facts not only consistent with the hypothesis of guilt, but also exclusive of every other reasonable hypothesis. Code Ann. § 38-109 (now OCGA § 24-4-6).
The evidence offered by the state showed that the room referred to in the indictment was a "small booth structure" located at the front of the supermarket with a "Manager's Office" sign on the door. An *37 employee of the supermarket testified that he first noticed a black male using or pretending to use the telephone located just outside the office. Three other black males momentarily spoke to the man with the telephone and moved on into the store. The four men departed separately but in very short intervals. The employee, who had suspected something was amiss because of this activity and having seen some wires leading to the office jiggle, then noticed that the door to the office was slightly open. He investigated and saw that there was no loose cash in the location where it usually was kept. He then called the store manager. Testimony at trial further showed that there had been in the office at the time $20,000.00 in a money bag, $4,810.00 in banded bills, some coins in wrappers and a pistol. The $4,810.00 in banded bills had been taken.
Witnesses saw four black males running from the direction of the store. An automobile with what appeared to be two black males inside sped away from the location where the four men on foot had been heading. One witness attempted to follow the automobile but lost it. The police were called and given a description of the automobile.
The automobile was spotted by the state patrol on the nearby interstate highway. When one state patrolman got behind the suspect vehicle and turned his blue lights on, the vehicle attempted to flee. A high speed chase ensued and ended at a state patrol roadblock. Defendants were then arrested, Dixon after a brief attempt to escape on foot. A quantity of money in banded bills was found wedged between the driver's seat and door.
The clothing worn by defendants was different than the description of the clothing worn by the men in the supermarket. No other clothing was found in the automobile. None of the defendants were positively identified as having been in the supermarket and no fingerprints were taken there. The banded money was, however, identified by store employees.
Defendants' story was that Jones and Foster met Dixon in Chattanooga, Tennessee and agreed to give him a ride to Atlanta. They stopped in Dalton at the Green Spot No.2, a separate store from the one burglarized, and then stopped at a service station to use the rest room. They were all away from the automobile for several minutes. Soon thereafter they picked up defendant Wimberly hitchhiking on the highway. The reason given for attempting to flee from the patrol car was that the driver, Dixon, was driving under the influence and without a license.
The jury was thus presented with conflicting evidence: The state's circumstantial evidence of guilt and defendants' hypothesis of innocence created by their alibi defense. See Code Ann. §§ 38-109 and *38 38-122 (the latter now OCGA § 16-3-40). "We will not speculate as to what evidence the jury chose to believe or disbelieve; on appeal this court is bound to construe the evidence with every inference and presumption being in favor of upholding the jury's verdict. [Cits.] Where the testimony of the state and that of the [defendants] is in conflict, the jury is the final arbiter...." Wynn v. State, 152 Ga. App. 479, 480 (263 SE2d 258) (1979). "`Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused, is primarily a question for determination by the jury. This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. After having heard the witnesses and having observed them testify, they are more capable of judging of the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, and the defendant's statement, than is a court of law.'" Harris v. State, 236 Ga. 242, 244-5 (223 SE2d 643) (1976), quoting Smith v. State, 56 Ga. App. 384, 387 (192 SE 647) (1937). "`When a jury hears the evidence, it decides questions as to reasonableness. If a jury is authorized to find that the evidence, circumstantial though it may be, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict of the jury will not be disturbed by the appellate court unless the verdict is insupportable as a matter of law.'" Slack v. State, 159 Ga. App. 185, 189-90 (283 SE2d 64) (1981), quoting Dowdy v. State, 150 Ga. App. 137, 139 (257 SE2d 41) (1979). Harris v. State, supra.
After a careful review of the evidence, as summarized supra, we cannot say that the verdict in this case is unsupportable as a matter of law. The aggregate of the circumstantial evidence produced by the state was sufficient to authorize the jury to find defendants guilty beyond a reasonable doubt under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and the jury was authorized to reject defendants' alibi proffered to establish a hypothesis of innocence. We therefore hold that defendants' challenge on the general grounds does not merit reversal.
2. Defendant Wimberly asserts the additional allegation of error that the state impermissibly commented in closing argument upon evidence previously ruled out by the court. The challenged remark was: "When I talk about professional thieves, what I'm talking about is, letters passed around the jail, `Let's get our stories straight.'" This remark referred to a letter written by Foster to Dixon telling him his version of the story so that their stories would be uniform. It was seized by a jailer. The state had attempted to introduce the letter as evidence but could not lay a proper foundation *39 and it was ruled inadmissible.
Although the state was unable to get the letter into evidence, the state did succeed in getting Foster to admit on cross-examination that he had written the letter to Dixon, stating in it the substance of his testimony in the first trial from which Dixon had been severed. Thus, defendant's assertion is specious. The remark by the state did in fact refer to evidence in the case and therefore it was proper. See Wooten v. State, 224 Ga. 106 (7) (160 SE2d 403) (1968).
Judgments affirmed. Deen, P. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1390536/ | 193 Va. 247 (1952)
JOHN G. CRISMAN, COMMITTEE, &C.
v.
OSMAR SWANSON, ET AL.
Record No. 3857.
Supreme Court of Virginia.
January 21, 1952.
J. Randolph Larrick, J. Frederick Larrick and Harrison, Benham & Thoma, for the appellant.
James P. Reardon, J. Sloan Kuykendall, Henry H. Whiting, Denny, Valentine & Davenport and W. E. Edwards, for the appellees.
Present, All the Justices.
1. Testator left all of his property in trust for his wife and the executor was given broad power to invest or to sell it in order that the wife would be cared for comfortably. At her death if any of the corpus remained the testator made specific disposition of it. Appellant was appointed committee for the wife after testator's death and brought this suit to have the will construed. He contended without merit that the will gave the wife an equitable fee in the real estate and an absolute estate in the personal property, the gifts over being void. Where a life estate is given to the first taker, but with full and unlimited power of disposition of the property given, the implication is conclusive that the fee is given; but to have that effect the power of disposition must be without limitation or restriction as to time, mode or purpose of its exercise.
2. Under the facts of headnote 1, the implication was that the trustee could use the property only for the purpose and within the limits of the trust upon which it was given; that is, for the comfortable care of the wife and at her death the residue, if any, to the remaindermen.
3. Under the facts of headnote 1, the trial court in its final decree, construing the will, incorrectly allowed appellant only one month from the date of that decree for renunciation on behalf of his ward. Under section 64-15 of the Code of 1950 in the case of appeal, the one month period for renunciation is to run from the date of the final decree of the Supreme Court of Appeals.
Appeal from a decree of the Corporation Court of the city of Winchester. Hon. Elliott Marshall, judge presiding. The opinion states the case.
BUCHANAN
BUCHANAN, J., delivered the opinion of the court.
John I. Sloat died March 22, 1949, without issue, leaving a will dated December 23, 1948, which was duly probated and which provided as follows:
"First, I leave my property, both real and personal, in trust for my wife Maggie Olivia Sloat, and appoint the Commercial and Savings Bank, Winchester, Va., as my executor, with broad powers of investment, re-investment, sale or otherwise, in order that my wife may be cared for comfortably."
"At her death if any of the corpus remains, I desire the following disposition of the same made;"
He then gave his house to named devisees and sums of money to named legatees, including the employees of Commercial and Savings Bank, followed by the provision that if the corpus of his estate was inadequate, then each beneficiary was to share pro rata. Any remaining fund was to go to the trustees of the Virginia Childrens Home Society and the Methodist Orphanage, at Richmond.
On April 28, 1949, little more than a month after his death, his wife, Maggie Olivia Sloat, was adjudged incompetent and her brother was appointed committee. The committee brought this suit to have the will construed. The bank and some of the other defendants filed answers. The case was heard on the bill and answers. It was averred in the answer of the bank that at the time the will was made the testator knew that his wife's mental condition was very bad.
The committee, plaintiff below and appellant here, contended that the will gave the wife an equitable fee in the real estate and an absolute estate in the personal property under the rule of May Joynes, 20 Gratt. (61 Va.) 692, and that the gifts over were void.
The defendants contended that the will created a trust for the comfortable care of the wife during her life and that the gifts over were valid. *249
The court, in a written opinion, held that May Joynes, supra, did not apply; that neither the wife nor the trustee was granted the absolute and uncontrolled power of disposition; that the will created in the trustee a discretionary power to dispose of the corpus for the purpose only of caring for the wife comfortably during her lifetime; and that if any part of the corpus was not consumed for that purpose during the lifetime of the wife, it would vest in the remaindermen according to the terms of the will. The accuracy of this statement in the first paragraph of the court's opinion is beyond question:
"In this case the intention of the testator is perfectly clear. His wife was incompetent and he desired his property to be used to provide for her comfortable support and maintenance during her lifetime, even to the extent of disposing of any part or all of the corpus if it should be necessary for such purpose. In the event that any part of the corpus remained undisposed of at her death he intended it to go to the remaindermen named in the will."
The court then added the well-settled principle that "His intention should, of course, be carried out unless it violates some rule of law."
This purpose of the testator violates no rule of law unless the effect of the language of the will is to give the wife an equitable fee simple estate in the property devised. If so, the gifts over are void for repugnancy, because a gift of the fee is a gift of the whole, and when the whole is given to one person there is nothing left to be given to another. "The remainder over is void, not because the court does not perceive the testator's intent, but because the attempted gift violates a fundamental rule or canon of property that after a donee has been given a fee in property, such fee cannot be qualified or limited by a gift over to another of such portion of the property as the donee may not have consumed or disposed of." Mowery Coffman, 185 Va. 491, 495, 39 S.E.(2d) 285, 287.
But before there is any repugnancy, it must appear from the will that a fee simple was in fact given to the first taker. If expressly given, there is no problem. But it may be given by implication, and that again is a question of intention, to be ascertained from the language of the will, read in the light of the circumstances existing when it was executed. Rule First Nat. Bank,
182 Va. 227, 28 S.E.(2d) 709. *250
It has long been settled in Virginia that where a life estate is given to the first taker, but with full and unlimited power of disposition of the property given, the implication is conclusive that the fee is given, because the absolute power of disposition is the eminent quality of absolute property. Burwell Anderson, 3 Leigh (30 Va.) 348, 355-6; May Joynes, supra; Smith Smith, 122 Va. 341, 94 S.E. 777; Mowery Coffman, supra.
But to have that effect the power of disposition must be without limitation or restriction as to time, mode or purpose of its exercise. Taylor Taylor, 176 Va. 413, 424, 11 S.E.(2d) 587, 591; Honaker Sons Duff, 101 Va. 675, 683, 44 S.E. 900; Smith Smith, supra, 122 Va. at p. 355, 94 S.E. at p. 780.
The doctrine of May Joynes, supra, was abolished by chapter 146, Acts 1908, page 187 ( Southworth Sullivan, 162 Va. 325, 173 S.E. 524), which act was in turn modified by section 5147 of the 1919 Code, now section 55-7 of the 1950 Code, but the statute applies only to estates expressly granted for life and does not control in this case. Mowery Coffman, supra, 185 Va. at p. 495, 39 S.E.(2d) at p. 287, and cases there cited.
There are many decisions involving the kind of estate given to the first taker by the particular wills there construed. As stated in Honaker Sons Duff, supra, and repeated in Davis Kendall, 130 Va. 175, 196, 107 S.E. 751, 757, "The cases are difficult to reconcile, save on the principle of giving free play to the testator's intention. That intention is the master key."
In the case of Shermer Shermer, 1, Wash. (1 Va.) 266, 272, 1 Am.Dec. 460, decided more than a century and a half ago, Judge Edmund Pendleton, the first President of this court, said: "I have generally observed that adjudged cases have more frequently been produced to disappoint, than to illustrate the intention; and I am free to own, that where a testator's intention is apparent to me, cases must be strong, uniform, and apply pointedly, before they will prevail to frustrate that intention."
Judge Burks expressed the same thought in Conrad Conrad, 123 Va. 711, 715, 97 S.E. 336, in saying that little aid comes from prior decisions. "'It is not enough that the same words in substance, or even literally, have been construed in other cases. It often happens that the same identical words require different constructions, according to the context and the peculiar circumstances of each case.'" *251
In Davis Kendall, supra, 130 Va. at p. 181, 107 S.E. at p. 752, the will gave to the testator's wife all of his estate "for her sole use and benefit so long as she lives, * * * and at her death to be disposed of as she may think proper, and deem best." It was held that the wife took a life estate with power of appointment and not a fee simple because "She lacks that full power of disposition by 'both deed and will, without limitation, or restriction, as to time, mode, or purpose, of its exercise,' which, in the contemplation of the cases following May Joynes, serves to enlarge a life estate expressly given into a fee by implication." 130 Va. at p. 211, 107 S.E. at p. 763.
In that case Judge Saunders reviewed most of the authorities from May Joynes, supra, to the date of the opinion, including these relied on by and most nearly in point for the appellant: Hall Palmer, 87 Va. 354, 12 S.E. 618, 24 Am.St.Rep. 653, 11 L.R.A. 610; Farish Wayman, 91 Va. 430, 21 S.E. 810; Brown Strother, 102 Va. 145, 47 S.E. 236; Hawley Watkins, 109 Va. 122, 63 S.E. 560; Rolley Rolley, 109 Va. 449, 63 S.E. 988, 21 L.R.A.(N.S.) 64; and Conrad Conrad, supra, 123 Va. 711, 97 S.E. 336. The opinion states that the court fully concurs in the pronouncement in the Conrad Case that when a person is given an absolute dominion over property, "whether the estate be legal or equitable," this constitutes a gift of the property itself, and a gift over of "'what remains at her death,'" or "'such part as she may not appropriate' or the like is void;" and that "Hence, in each case it is important to determine whether absolute dominion has been afforded. The intent of the testator on the whole, if it can be ascertained, will aid in this determination. Unlimited power to use the estate for support and maintenance is plainly intended in many of the cases cited, * * *." 130 Va. at p. 192, 107 S.E. at p. 756.
The court then said that the facts in the cases cited afforded the reasons for the conclusions reached and that "In many of these cases the fee is given expressly, or by necessary implication, for the stated purpose of providing for the support and maintenance of the first taker. In other cases the fee is given directly or by implication, though the purpose thereof is not stated; but the fee, in terms or by necessary implication, is lodged in the first taker without restrictions, and may be simply and readily used by him for support, or for any other purpose." 130 Va. at pp. 195-6, 107 S.E. at p. 757. (Emphasis added). *252
We agree with the trial court that the Sloat will did not give either to Mrs. Sloat or to her trustee absolute and uncontrolled power of disposition without limitation as to time, mode, or purpose of its exercise.
Appellant says in his brief that the words of the will "are probably sufficient to create a trust and name the bank trustee. But they certainly do not cut down the dominion over the estate already given Mrs. Sloat, except to make it an equitable fee instead of a legal fee."
The will in terms leaves nothing directly to Mrs. Sloat and gives her dominion over nothing. On the contrary, it leaves all the testator's property "in trust for my wife," and appoints the bank executor, "with broad powers of investment, re-investment, sale or otherwise." There can be no doubt that the bank was to execute the trust, whether it be called executor or trustee in doing so. The trust is imposed in the bank, and along with it the broad powers described, "in order that my wife may be cared for comfortably."
Appellant says in his brief that the question comes down to this issue: In whom does the will vest the power of alienation, and in whom the discretion to expend the corpus of the residuary trust for the comfortable care of Mrs. Sloat? If in Mrs. Sloat, he says, she has an absolute equitable fee; if in the trustee bank, the trial court's ruling was right.
It is difficult to discern in the language of the will any suggestion that the testator intended to vest in his wife the power of alienation. That power was expressly given to the trustee by the language conferring upon it the broad powers to invest, re-invest, sell or otherwise. If the wife had the power of alienation, the absolute dominion over the property devised to the trustee, she could immediately take charge of the property, render the trust inoperative and completely frustrate the whole plan and purpose expressed in the will.
The trust so created and the broad powers so given to the trustee to control and deal with the property are stated to be for the specific purpose "that my wife may be cared for comfortably." That was his primary concern. That was the reason why he created the trust. He knew that his wife's mental condition was bad. If he had thought she was capable of taking care of the property and of herself, it would have been simple for him to have given it directly to her. Because he did not *253 think so, he gave it to the trustee for her, with broad powers to control and manage it, to make sure she would be cared for comfortably. From the plan and purpose of the will as evidenced by its terms, we think the necessary implication is that upon the trustee selected and appointed by the testator was imposed the duty and obligation to manage and apply the property so that his wife would have all that was needed for her comfortable care.
She would need that care only, of course, so long as she lived. During her life the trustee could use the property only for the purpose and within the limits of the trust upon which it was given; that is, for the comfortable care of the wife. The purpose to which it could apply it was thus limited. For faithlessness to its trust, it would be accountable before a court of equity to those injured. Patterson Old Dominion Trust Co., 139 Va. 246, 257, 123 S.E. 549, 552; 54 Am. Jur., Trusts, | 276, p. 219.
We are unable to see any intention, expressed in the will or to be implied from its language, to vest in the widow a fee simple estate. We cannot read in this will the unlimited and unqualified power of disposition in the cestui que trust which the court found to be implied and to create a fee simple in
Farish Wayman, Hawley Watkins, Brown Strother, Conrad Conrad, supra, and the other cases relied on by appellant. In those cases the court apparently considered that only "the naked legal title" was in the trustee, as in Davis Heppert, 96 Va. 775, 777, 32 S.E. 467, 468. So to construe this will would completely destroy the testator's whole plan and purpose. The purpose of the will clearly was to put the property in the hands of the trustee for the use described during Mrs. Sloat's life, and then if anything was left in the hands of the trustee at her death, it was to be turned over to the remaindermen, those of secondary importance in the plan of the testator.
We can see nothing illegal in that plan, nor do we think any rule of law will be violated by carrying out what the testator plainly intended should be done. Cf. Lee Law, 1 Va.Dec. 808, 19 S.E. 255.
On petition of Mrs. Sloat's committee, the appellant, the court entered an order on August 2, 1950, allowing the petitioner one month from the date of the final decree construing the will for renunciation on behalf of his ward. The appellant assigns *254 as error the refusal of the court to provide in the decree of November 3, 1950, appealed from, that the one month period should run from the date of the order of this court.
Section 64-15 of the Code of 1950 provides that in a suit by the surviving consort for construction of the will, the court shall upon application provide by order that the surviving consort be allowed not exceeding one month for renunciation "after final decree has been entered in the suit construing the will." We hold this to mean that in the case of appeal, the one month period for renunciation is to run from the date of the final decree of this court. Cf. Simmons Simmons, 177 Va. 629, 15 S.E.(2d) 43. The order of August 2, 1950, is to be so construed. We express no opinion upon the right of the committee or his ward to make the renunciation.
The decree appealed from is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333159/ | 165 Ga. App. 186 (1983)
299 S.E.2d 393
HARRIS
v.
THE STATE.
65004.
Court of Appeals of Georgia.
Decided January 4, 1983.
Rehearing Denied January 25, 1983.
C. Andrew Fuller, for appellant.
Jeff C. Wayne, District Attorney, Bruce L. Udolf, Christopher J. Walker III, Assistant District Attorneys, for appellee.
POPE, Judge.
Defendant Jerome Harris was indicted along with Troy Tuck and Ronnie Swafford for the crime of burglary. Both Tuck and Swafford pleaded guilty and defendant Harris was tried and convicted. The evidence against defendant consisted primarily of Tuck's testimony, implicating him as one of the burglars. Defendant's sole contention on this appeal, framed in various ways in six enumerations of error, is that the state failed to corroborate this testimony.
A person cannot be convicted of a felony solely upon the uncorroborated testimony of an accomplice. Code Ann. § 38-121 (now OCGA § 24-4-8); Shumake v. State, 159 Ga. App. 141 (1) (282 SE2d 756) (1981). However, as a matter of law, the corroborating evidence need only be slight to be sufficient. Id. It may be circumstantial. *187 Gunter v. State, 243 Ga. 651 (2) (256 SE2d 341) (1979). It must be independent of the accomplice's testimony and probative of guilt. Id. at 654-5; Shumake v. State, supra at 141-2. To be probative of guilt, the evidence must tend to prove the identity and participation of the accused. Shumake v. State, supra at 142.
Other than the accomplice testimony, the evidence against defendant was indeed slight. One witness saw three men and a white pickup truck with a camper top at the scene of the crime. Defendant fit the very general description of one of the men. No fingerprints were taken at the scene.
Defendant was an acquaintance of both Tuck and Swafford. He was living at the home of Swafford's brother. Approximately three weeks after the burglary defendant was seen in a blue pickup truck with a camper top driven by Swafford's brother. A witness at trial testified that the truck had recently been painted and it had been white.
Swafford, called as a witness for the defense, testified that defendant did not participate in the burglary. Swafford claimed that only he and Tuck committed the crime. Defendant testified in his own defense, maintained he did not participate in the crime, and asserted that Tuck was lying.
We find that the conflicting evidence at this trial is illustrative of why the sufficiency of corroborating evidence should be "peculiarly a matter for the jury to determine." Shumake v. State, supra at 141, quoting Davis v. State, 154 Ga. App. 803, 804 (269 SE2d 874) (1980), which, in turn, quoted Hargrove v. State, 125 Ga. 270, 275 (54 S.E. 164) (1906). We hold that the corroborating evidence, albeit slight, tended to prove defendant's identity and participation in the crime and therefore was sufficient as a matter of law. We further hold that the evidence was sufficient to enable any rational trier of fact to find defendant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Judgment affirmed. Deen, P. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333164/ | 299 S.E.2d 203 (1983)
STATE of North Carolina
v.
Bobby Lee MILLS.
No. 486A82.
Supreme Court of North Carolina.
January 28, 1983.
*204 Rufus L. Edmisten, Atty. Gen. by Thomas F. Moffitt, Asst. Atty. Gen., Raleigh, for the State.
Tharrington, Smith & Hargrove by Wade M. Smith, Roger W. Smith, and Douglas E. Kingsbery, Raleigh, for defendant.
MARTIN, Justice.
Defendant's first assignment of error alleges that he was prosecuted for the three murders in violation of the North Carolina Speedy Trial Act, N.C.G.S. §§ 15A-701 to -704 (1978 & Cum.Supp.1981). For the reasons stated below, we hold that the Speedy Trial Act was not violated.
Defendant was originally indicted for the murders of Collins, Broadwell, and Murray on 27 April 1981. These indictments alleged that the murders occurred 15 January 1973. On 9 November 1981 the grand jury returned superseding indictments which alleged that the murders occurred on 11 January 1973, rather than on 15 January 1973. A motion filed by the defendant 4 December 1981 to dismiss the pending charges on the basis of a violation of the North Carolina Speedy Trial Act was denied. Defendant's trial on the murder charges began 8 March 1982.
In pertinent part, the Speedy Trial Act states:
[T]he trial of a defendant charged with a criminal offense who is arrested, served with criminal process, waives an indictment or 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 arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last.
N.C.Gen.Stat. § 15A-701(a1)(1) (Cum.Supp. 1981). Defendant argues that the speedy trial clock began to run on 27 April 1981, the date of the original indictments charging him with commission of the murders. Therefore, since more than 120 days (excluding those not counted under N.C.G.S. 15A-701(b)) had elapsed by 8 March 1982, the date on which he was brought to trial, he was tried in violation of the Speedy Trial Act. The defendant urges us to overrule the decision of the Court of Appeals of North Carolina in State v. Moore, 51 N.C. App. 26, 275 S.E.2d 257 (1981), which held that when a superseding indictment is appropriate and obtained in good faith, the *205 120-day period begins on the date the new indictment is returned. In the present case, trial commenced within 120 nonexcludable days of the date on which superseding indictments were returned.
We find the reasoning in Moore persuasive and hold that when superseding indictments are appropriate and obtained in good faith, then for purposes of N.C.G.S. 15A-701(a1)(1) the 120-day period begins on the day the new indictments are returned.
In the instant case the state had a valid reason for obtaining new indictments which alleged correctly the date on which the three murders were committed: the date could have been critical to the state's ability to prove that the defendant was guilty if the defendant ultimately chose to offer evidence at trial intended to establish an alibi defense. It was also relevant to ensure protection of the defendant from double jeopardy. The obtaining of new indictments was thus appropriate and in good faith.
As the Moore court observed, N.C.G.S. 15A-646 states in part:
If at any time before entry of a plea of guilty to an indictment or information, or commencement of a trial thereof, another indictment or information is filed in the same court charging the defendant with an offense charged or attempted to be charged in the first instrument, the first one is, with respect to the offense, superseded by the second and, upon the defendant's arraignment upon the second indictment or information, the count of the first instrument charging the offense must be dismissed by the superior court judge.
Defendant here pled not guilty to the charges in the original indictments. He had not been brought to trial before 9 November 1981, the day on which the new indictments were returned. Therefore, the second indictments were issued "before entry of a plea of guilty ... or commencement of a trial." Thus, because the new indictments charged defendant with the same crimes as were charged in the original indictments, the new indictments superseded the earlier ones. For purposes of N.C. G.S. 15A-701(a1)(1), 9 November 1981 was the day on which the last of the following occurred: arrest, service of criminal process, waiver of indictment, or indictment. Because defendant was brought to trial within 120 days of this date, N.C.G.S. 15A-701(a1)(1) was not violated. We concur with the Moore court
that the opportunity afforded the State by G.S. 15A-646 to obtain a new indictment which supersedes one previously issued could be exercised for the purpose of defeating the time limitations for commencement of trial imposed by the Speedy Trial Act. Concern regarding that possibility is, however, appropriately addressed to the General Assembly.
51 N.C.App. at 29, 275 S.E.2d at 260. Meanwhile, defendants are protected by the requirement that in order for the 120-day period to begin on the date superseding indictments are returned, such indictments must have been appropriate and sought in good faith.
Defendant next assigns as error the trial court's denial of his motion to suppress the testimony of a particular witness. Grounds for the motion were that the state had failed to notify defendant before trial of the existence of the witness, had failed to furnish defendant before trial with a copy of the plea agreement pursuant to which the witness testified, and had failed to tell defendant the substance of oral statements that defendant had made and which were the subject of the witness's testimony. Defendant claims that the trial court violated N.C.G.S. 15A-903(a)(2), which reads as follows:
(a) Statement of Defendant.Upon motion of a defendant, the court must order the prosecutor:
....
(2) To divulge, in written or recorded form, the substance of any oral statement made by the defendant which the State intends to offer in evidence at the trial.
*206 In the present case the witness was a prisoner in a cell adjoining one in which defendant and another inmate were incarcerated when he overheard defendant make certain statements to his cellmate concerning the three murders. The witness contacted his lawyer and later offered to testify against defendant in exchange for certain promises of the prosecuting attorney relevant to the witness's conditions of imprisonment. The agreement containing the resulting bargain was not signed until moments before the witness took the stand. It was not until then that the state made the decision to call the witness to testify.
Defendant urges this Court to overrule a line of cases holding that N.C.G.S. 15A-903(a)(2) requires the pretrial disclosure to defense counsel of a defendant's oral statements only when the statements were made to a person acting on behalf of the state. State v. Moore, 301 N.C. 262, 271 S.E.2d 242 (1980); State v. Detter, 298 N.C. 604, 260 S.E.2d 567 (1979); State v. Crews, 296 N.C. 607, 252 S.E.2d 745 (1979). The witness here complained of was not a person acting on behalf of the state at the time he heard defendant's conversations, nor were the statements he overheard even addressed to him. There is no evidence in the record that the state knew of the contents of these conversations until after Mills made the last statements that the witness heard. Thus, under the Moore, Detter, and Crews line of cases the state was not required to divulge to defendant the substance of the witness's expected testimony before trial.
We think the interpretation of N.C.G.S. 15A-903(a)(2) enunciated in Moore, Detter, and Crews is sound, and decline defendant's invitation to change it. As Copeland, J., stated in Crews:
According to the official commentary accompanying it, Article 48 of the North Carolina General Statutes, dealing with pretrial discovery, was modeled after a draft of proposed amendments to Rule 16 of the Federal Rules of Criminal Procedure. See also State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977). Federal Rule 16(a)(1)(A) expressly deals with this problem by stipulating that a defendant may discover "the substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent." (Emphasis added.) Although G.S. 15A-903(a)(2) does not include the language in Federal Rule 16(a)(1)(A) emphasized above, we find the intent of the Legislature was to restrict a defendant's discovery of his oral statements to those made by him to persons acting on behalf of the State.
The official commentary to G.S. 15A-903 relates that a provision requiring disclosure to a defendant of the names and addresses of witnesses to be called by the State was omitted from Article 48 because the witnesses may be subject to "harassment or intimidation." We agree with the opinion of the Attorney General that "[i]t would be illogical to assume the Act intended to require discovery of remarks of the defendant to bystander witnesses but not disclosure of the witnesses' names." 45 N.C.A.G. 60 (1975). "Where possible, the language of a statute will be interpreted so as to avoid an absurd consequence." State v. Hart, 287 N.C. 76, 80, 213 S.E.2d 291, 295 (1975). Furthermore, it is anomalous to think the Legislature granted a defendant indirect access to the names of the State's witnesses when it denied his right to this information directly.
296 N.C. at 619-20, 252 S.E.2d at 753-54 (footnote omitted).
We note that when the witness to whose testimony defendant objects took the stand, defendant did not move for a continuance or recess for the purpose of preparing cross-examination. However, at the close of direct examination of the witness, the court adjourned until the next day, thus allowing defense counsel additional time for further preparation of cross-examination. Moreover, nothing in the record before this Court shows that the state was aware of the contents of the witness's testimony until the witness was questioned at trial. Finally, *207 as soon as the state procured the necessary signatures on the agreement pursuant to which the witness testified, the prosecuting attorney notified defense counsel that the witness would be called. Until that time the state did not know whether the witness would be called to testify. The trial judge did not err in denying defendant's motion to suppress the testimony of the witness.
We do not deem it necessary to further discuss defendant's argument that his motions to dismiss should have been allowed. The record contains substantial competent evidence to support the verdicts returned by the jury. State v. Jolly, 297 N.C. 121, 254 S.E.2d 1 (1979); State v. Witherspoon, 293 N.C. 321, 237 S.E.2d 822 (1977); State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956). The motions to dismiss were properly denied.
Defendant received a fair trial, free of prejudicial error.
NO ERROR.
MITCHELL, J., took no part in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
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