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https://www.courtlistener.com/api/rest/v3/opinions/1333170/ | 299 S.E.2d 230 (1983)
Marion Dozier PUGH
v.
Thomas DAVENPORT and wife, Edith Davenport; Thelma Davenport Hassell and husband, Fentress Hassell; Ida D. Maitland and husband, Will Maitland; Wilma Davenport Spencer and husband, Jessie L. Spencer; Dallas Davenport and wife, Margarett D. Davenport; Clara May Davenport Rhodes and husband, T. Earl Rhodes.
No. 812SC1308.
Court of Appeals of North Carolina.
January 18, 1983.
*231 Earnhardt & Busby by Charles T. Busby, Edenton, for plaintiff-appellee.
Charles W. Ogletree, Columbia, for defendants-appellants.
ARNOLD, Judge.
This case was argued by both parties on the basis of the Marketable Title Act, G.S. 47B-1 through 47B-9. The effect of the language in the 1923 Pritchett will, however, decides the outcome without any reference to the Act.
Although neither party discussed it in their briefs or oral arguments, the Rule in Shelley's Case apparently applies to the devise by W.L. Pritchett. That common law doctrine was born in Wolfe v. Shelley, 1 Coke 93b, 76 Eng.Rep. 206 (C.B.1581), and states:
When an ancestor, by any gift or conveyance, taketh an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the word heirs is a word of limitation of the estate, and not a word of purchase.
Crisp v. Biggs, 176 N.C. 1, 2, 96 S.E. 662, 662 (1918). The Rule in Shelley's Case is a rule of law and not a rule of construction. Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501 (1922).
In the case sub judice, the 1923 devise was to "Percy Davenport for the period of his lifetime.... At the death of said Percy Davenport I devise said land to the lawful issue of his body in fee simple forever."
For the Rule to apply, all of the following factors must be present:
(1) there must be an estate of freehold in the ancestor; (2) the ancestor must acquire that estate in the same instrument containing the limitation to the heirs; (3) the words `heirs' or `heirs of the body' must be used in the technical sense meaning an indefinite succession of persons, from generation to generation; (4) the two interests must be either both legal or both equitable; and (5) the limitation to the heirs must be a remainder in fee or in tail.
Jones v. Stone, 52 N.C.App. 502, 507, 279 S.E.2d 13, disc. rev. denied, 304 N.C. 195, 285 S.E.2d 99 (1981). See also White v. Lackey, 40 N.C.App. 353, 356, 253 S.E.2d 13, 15-16, disc. rev. denied, 297 N.C. 457, 256 S.E.2d 810 (1979); Benton v. Baucom, 192 N.C. 630, 633-34, 135 S.E. 629, 631 (1926); Hampton v. Griggs, 184 N.C. 13, 113 S.E. 501.
Four of these five factors are clearly present here. First, there is "an estate of freehold in the ancestor ..." since Percy Davenport had a life estate. Second, Percy acquired his estate in the same instrument containing the remainder [Pritchett's 1923 will].
Third, the interests of Percy and the remaindermen are both legal interests. Fourth, the remainder here is in tail because it is limited to Percy's lawful bodily issue.
*232 The fifth requirement for the application of the Rule in Shelley's Case is not met so easily, however. It requires "that the words `heirs' or `heirs of the body,' or some equivalent expression ... be used in a technical sense as importing a class of persons to take indefinitely in a succession, from generation to generation, in the course marked out by the canons of descent." Benton, 192 N.C. at 633, 135 S.E. at 631 (emphasis added).
If "lawful issue of his body" is equivalent to "heirs" or "heirs of the body," the Rule applies. This decision turns on whether "it manifestly appears that such words are used in the sense of heirs generally." Faison v. Odom, 144 N.C. 107, 109, 56 S.E. 793, 794 (1907). Accord, Wright v. Vaden, 266 N.C. 299, 146 S.E.2d 31 (1966). See also Restatement of Property § 312 comment g (1940).
After an examination of the four corners of the will, which is the appropriate method for determining how "issue" is used here, Jones, 52 N.C.App. at 509, 279 S.E.2d at 17, we find that "issue" was used in the technical sense and that the Rule applies. The remainder was in "fee simple forever." This indicates that an indefinite line of succession, not specific takers, was contemplated at the time of the devise. This interpretation is strengthened by the fact that there is no devise over in case of failure of the remainder because of a lack of takers.
The phrase "at his death" at the beginning of the remainder does not indicate a specific group of takers so as to remove "issue" from meeting the technical use of "heirs." Limit of the class to "lawful" bodily issue is also not enough to prevent application of the Rule. Wool v. Fleetwood, 136 N.C. 460, 48 S.E. 785 (1904).
Thus, the status of the title before application of the Rule was a life estate in Percy Davenport and a remainder in fee tail in his lawful bodily issue forever. After the Rule in Shelley's Case operated, Percy had the life estate and the remainder in fee tail. G.S. 41-1 converted the fee tail into a fee simple. Because there is no intervening estate between Percy's two estates, they merged. See Elmore v. Austin, 232 N.C. 13, 59 S.E.2d 205 (1950); Citizens Bank and Trust Co. v. Watkins, 215 N.C. 292, 1 S.E.2d 853 (1939). He was vested with the fee simple interest in 1923. See generally Webster, A Relic North Carolina Can Do WithoutThe Rule in Shelley's Case, 45 N.C.L. Rev. 3 (1966); Block, The Rule in Shelley's Case in North Carolina, 20 N.C.L.Rev. 49 (1941) (These articles discuss the Rule's history and its application in North Carolina).
We conclude that since Percy Davenport became vested in fee simple in 1923, the defendants have no claim as remaindermen to the land that is the subject of this case. Plaintiff can trace her title back to the 1923 will. She prevails without application or discussion of the Marketable Title Act.
Affirmed.
MARTIN and WHICHARD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333192/ | 250 Ga. 488 (1983)
299 S.E.2d 538
PHILLIPS CONSTRUCTION COMPANY et al.
v.
COWART IRON WORKS, INC. et al.
39029.
Supreme Court of Georgia.
Decided January 25, 1983.
Glower W. Jones, Joseph C. Staak, for appellants.
William A. Trotter III, Stanley C. House, Stephen M. Phillips, Phillip O. Gossett, for appellees.
HILL, Chief Justice.
Phillips Construction Company (general contractor) contracted with the owner, Donald Golden (owner), for the construction of a shopping center. Cowart Iron Works, Inc., and Rembrant, Inc. (subcontractors), subcontracted with the general contractor for portions of the work on the project. The subcontractors, in separate suits, sued the general contractor and its surety, American Insurance Company, for breach of contract and sought to impose a lien on the project site to recover the contract fee. The owner intervened as a defendant in the Cowart case and was a named defendant in the Rembrant case. The owner filed cross claims against the general contractor and its surety for indemnification and filed counterclaims against Cowart alleging negligence and claiming rights as a third-party beneficiary of the subcontract between Cowart and the general contractor.
The general contractor and its surety moved to dismiss the complaints or, alternatively, to stay judicial proceedings pending arbitration. The general contractor's agreement with the owner and its contracts with the subcontractors each contained provisions for arbitration. While reserving its right to enforce the arbitration provisions, the general contractor responded to the allegations in the complaint. The trial court denied the general contractor's motion to stay judicial proceedings finding that, in view of a contractual prohibition on the filing of liens, the general contractor had waived its contractual right to arbitration by filing a claim of lien.
The general contractor and its surety sought to appeal directly to the Court of Appeals under the authority of Pace Constr. Corp. v. Houdaille Indus., Inc., 155 Ga. App. 923 (274 SE2d 44) (1980).[1] Relying on Pace, they did not seek a certificate from the trial court and apply to appeal the interlocutory order. See OCGA § 5-6-34 (b) (Code Ann. § 6-701). After the trial court entered its order denying the stay of judicial proceedings but before this case was decided on appeal, the Court of Appeals overruled that portion of Pace which held that an order refusing to stay judicial proceedings is like the denial of an injunction and is thus directly appealable. Tasco Indus. v. Fibers & Fabrics, 162 Ga. App. 593 (292 SE2d 439) (1982). We granted certiorari to determine whether the denial of a motion to stay *489 judicial proceedings pending the conduct of arbitration required by contract is the legal equivalent of the denial of an interlocutory injunction for purposes of appeal under OCGA § 5-6-34 (a) (4) (Code Ann. § 6-701).[2]
The General Assembly has enacted an Arbitration Code for Construction Contracts, OCGA § 9-9-80 (Code Ann. § 7-301), and has provided that the courts may compel arbitration, OCGA § 9-9-86 (a) (Code Ann. § 7-307), thereby demonstrating the General Assembly's approval of arbitration of construction contracts. Because arbitration provisions are common in such contracts, the judiciary will be confronted with this problem more frequently.
A trial judge's decision on a motion to stay judicial proceedings pending arbitration is a decision with significant consequences. If the stay of judicial proceedings is incorrectly denied, the parties must proceed with a trial and a jury verdict which will be overturned on appeal because the parties should have had their dispute decided by arbitration. The parties must then go to the expense of having a new determination made by arbitration. This procedure not only wastes the parties' time and money but is an unnecessary burden on an already overworked judiciary. A similar untoward result obtains where judicial proceedings are incorrectly stayed initially. The parties must proceed to arbitration, appeal following arbitration, and then go to trial before a jury. These results and adverse consequences make it desirable to allow the parties to appeal the initial determination immediately.
In Pace, supra, the Court of Appeals adopted the federal rule. That rule permits an interlocutory appeal of the order staying judicial proceedings where the underlying action is at law. Shanferoke Coal & Supply Corp v. Westchester Svc. Corp., 293 U.S. 449 (55 SC 313, 79 LE 583) (1935); Enelow v. New York Life Ins. Co., 293 U.S. 379 (55 SC 310, 79 LE 440) (1935). The rationale underlying that rule is that where the primary action is at law and the court stays, or refuses to stay, judicial proceedings, the court is using its equitable powers and its order is "like" an injunction. See Enelow, supra at 382-83. On the other hand, the court's order is not directly appealable where the primary action is in equity rather than at law. Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176 (75 SC 249, 99 LE 233) (1955). The distinction between actions at law and in equity is made because in an action in equity, in granting or denying the stay, the *490 equity court is merely controlling the proceedings before it rather than entering an order "like" an injunction. See generally Anno: Arbitration Appealability of Stay Order, 11 ALR Fed 640, 644-645 (1972).
We decline to adopt the federal rule for three reasons. First, the historical distinction between courts of law and of equity has been eliminated in many areas. The separate functions served by the two courts are no longer necessary under our present system and we do not wish to preserve those archaic procedural distinctions unnecessarily. The Court in Baltimore Contractors v. Bodinger, supra, was critical of maintaining the distinction but left the matter to Congress.[3] Second, identification of an injunction is relatively simple at the present time. Adoption of a rule permitting appealability of an order because it is "like" an injunction will unnecessarily confuse the law.[4] Third, when the federal rule was devised in Shanferoke Coal & Supply v. Westchester Svc. Corp., and Enelow v. New York Life Ins. Co., supra, the federal district courts had no mechanism to certify interlocutory orders to the appellate courts. 28 USC § 1292 (b) was enacted in 1958. Pub. L. 85-919. We do have such a mechanism. See OCGA § 5-6-34 (b) (Code Ann. § 6-701), discussed below. We therefore hold that the denial of a motion to stay judicial proceedings pending arbitration is not "like" the denial of an injunction for purposes of appeal.
This rule does not work a hardship in Georgia because of our procedure which permits a trial court to certify an order for immediate appeal. OCGA § 5-6-34 (b) (Code Ann. § 6-701). Because of the unnecessary delay and expenses to the parties of an incorrect determination of whether judicial proceedings should be stayed pending arbitration, we recommend that the trial courts, except in the clearest cases, certify orders granting or denying such stays. Although our decision that orders granting or denying motions to stay judicial proceedings pending arbitration should be certified for interlocutory review except in the clearest cases runs counter to the principle that piecemeal appeals are to be avoided, we find that judicial economy favors interlocutory appeals in such cases.
In the case before us, the general contractor and its surety did *491 not seek a certificate of appealability from the trial court because Pace Constr. Corp. v. Houdaille Indus., Inc., supra, was in effect. The timing of the Court of Appeals' decision overruling Pace, supra, and our determination in this case, have left the contractor and its surety without a means of appealing the trial court's order. In dismissing this appeal the Court of Appeals noted that the merits of the case are controlled by Prince Faisal v. Batson-Cook Co., 161 Ga. App. 219 (291 SE2d 249) (1982). We do not here decide the correctness of that observation. However, in view of the timing of the decisions of the trial court and Court of Appeals in this case, we affirm the decision of the Court of Appeals and direct that court to vacate the trial court's orders denying the motions to stay judicial proceedings and remand this case to the trial court with authority to reenter its earlier orders and certify them for immediate appeal if the trial court sees fit to do so.
Judgment affirmed with direction. All the Justices concur.
NOTES
[1] The law firm which represented Pace Constr. Corp. represents the general contractor in this case.
[2] This question was left unanswered by this court in Pace Constr. Corp. v. Houdaille Indus., Inc., 245 Ga. 696 (266 SE2d 504) (1980), and was not expressly addressed in Pace Constr. Corp. v. Houdaille Indus., Inc., 247 Ga. 367 (276 SE2d 568) (1981).
[3] The commentators are also critical of maintaining the distinction, 9 Moore's Federal Practice § 110.20 [3] at pp. 245-246; 4 Wright & Miller, Federal Practice & Procedure § 1045, at p. 157.
[4] For example, is an order overruling a motion for continuance in a case at law "like" an injunction because it compels the parties to proceed to trial? Is an order overruling a motion for protective order in a case at law "like" an injunction because it compels a party to give his or her deposition? | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333197/ | 299 S.E.2d 308 (1983)
Roy Lee HARRELL
v.
William A. DAVENPORT, Jr. and North Carolina Farm Bureau Mutual Insurance Company.
No. 828SC176.
Court of Appeals of North Carolina.
February 1, 1983.
*310 Wilton R. Duke, Jr., Farmville, for plaintiff-appellant.
Fred W. Harrison, Kinston, for defendant-appellee Davenport.
Speight, Watson & Brewer by Susan Parrott Carlton and William C. Brewer, Jr., Greenville, for defendant-appellee North Carolina Farm Bureau Mut. Ins. Co.
WELLS, Judge.
The threshold substantive question before us is whether, under the forecast of evidence before the trial court, the statements and conduct of defendant Davenport might be construed as an undertaking to procure a policy of insurance on plaintiff's tractors. In Wiles v. Mullinax, (first appeal), 267 N.C. 392, 148 S.E.2d 229 (1966), our Supreme Court recited the rule applicable to the forecast of evidence in this case, as follows:
"It is very generally held that where an insurance agent or broker undertakes to procure a policy of insurance for another, affording protection against a designated risk, the law imposes upon him the duty, in the exercise of reasonable care, to perform [sic] the duty he has assumed and within the amount of the proposed policy he may be held liable for the loss properly attributable to his negligent default."
We hold that the forecast of evidence in this case raises a genuine, material question of fact as to whether defendant Davenport entered into such an undertaking. Defendants contend that the undertaking was not consummated because plaintiff and Davenport failed to agree on all the elements of the policy. The forecast of evidence shows that plaintiff and Davenport discussed the identity of the property to be insured and the value of the property. The forecast of evidence does not indicate that plaintiff and Davenport discussed the policy period, or that they agreed on the amount of the premium. Mayo v. Casualty Co., 282 N.C. 346, 192 S.E.2d 828 (1972) involved the negligent failure of an insurance agent to issue a binder for a fire insurance policy. The Court held that no *311 specific form or provision is necessary to constitute an oral communication intended as a binder, that it is not required that the communication leading to a binder set forth all the terms of the contemplated insurance policy, and that the provisions of the statutory standard insurance policy are read into a binder. See also Sloan v. Wells, 296 N.C. 570, 251 S.E.2d 449 (1979). Applying the foregoing Mayo and Sloan principles to the present case, we hold that the communications between plaintiff and defendant Davenport were sufficient to allow but not require a jury to find that Davenport entered into an undertaking to obtain a standard policy on plaintiff's tractors to insure them for $4,000.00 each against loss by fire. The fact that plaintiff and Davenport did not agree on the amount of the premium to be paid is not fatal to plaintiff's claim, as the jury might find an implied promise by plaintiff to pay the premium as calculated by Davenport.
We are also persuaded that from the forecast of evidence before the trial court, there was a genuine material issue of fact as to whether Davenport used reasonable diligence to procure the policy of insurance plaintiff desired for his tractors.
The next substantive issue we address is whether defendant insurance company was entitled to summary judgment under principles of agency law. Defendant insurance company contends that the record is barren of facts or evidence from which it could be inferred that defendant Davenport was an employee of defendant insurance company, and thus, there was no showing that defendant insurance company was responsible or answerable for Davenport's alleged negligent acts. In his complaint, plaintiff alleged that Davenport was an agent of defendant insurance company, had authority to issue policies and binders for defendant insurance company, that in response to plaintiff's request, Davenport advised plaintiff that the requested policy would be issued by defendant insurance company, and that while acting as defendant insurance company's agent, Davenport negligently failed to procure or issue the policy. These allegations were sufficient to state a claim for relief against defendant insurance company under generally accepted principles of agency law as applied to the relationship of insurance agents and companies they represent or are employed by. See Mayo v. Casualty Co., supra; Little v. Poole, 11 N.C.App. 597, 182 S.E.2d 206 (1971). Under these circumstances, on a motion for summary judgment, defendant insurance company had the burden of showing that plaintiff's claim was fatally defective in this respect. See Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982). This, defendant company failed to do. On the contrary, defendant Davenport, in his deposition, testified that he was defendant insurance company's exclusive agent in Greene County and stated in his affidavit that he was "employed as an agent" by defendant insurance company from December of 1957 through July of 1980.
For the reasons stated, we hold that summary judgment was improvidently entered for the defendants. The judgment below is reversed and the case is remanded for trial.
Reversed and Remanded.
VAUGHN and WHICHARD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333219/ | 299 S.E.2d 367 (1983)
COMMUNITY MOTOR BUS COMPANY, INC.
v.
John WINDLEY, Jr.
Record No. 800861.
Supreme Court of Virginia.
January 21, 1983.
*368 Robert G. Winters, Norfolk (Joseph M. Young; White, Reynolds, Smith & Winters, Norfolk, on briefs), for appellant.
S. Earl Griffin, Portsmouth (Griffin, Pappas & Scarborough, Portsmouth, on brief), for appellee.
Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.
STEPHENSON, Justice.
John Windley, Jr., sued the Community Motor Bus Company, Inc., alleging he was injured as a result of the company's negligence. A jury verdict in favor of Windley was approved by the trial court, and the Company appeals. The dispositive question is whether the evidence is sufficient as a matter of law to prove gross negligence.
Since Windley prevailed in the court below, we will state the evidence in the light most favorable to him. On March 3, 1974, Windley, a part-time security guard, boarded the defendant's bus. He displayed his badge to the driver who, mistaking him for a police officer, permitted Windley to ride without charge. The company had a policy of allowing city police officers to ride its buses without paying a fare.
After Windley was seated, the bus proceeded along Portsmouth Boulevard at a speed of approximately 30 miles per hour. The speed limit was 35 miles per hour. Suddenly, the driver saw a bottle shatter on the street in front of him. As a result, he slowed the bus momentarily. A rock then crashed through a window, splattering glass on Windley. Windley, the driver, and other passengers initially thought the rock was a bullet.
When the window was broken, Windley stood up in the aisle, held the rail, and braced himself. The bus seemed to accelerate, and after it had proceeded 250 to 300 feet, it stopped suddenly near a telephone booth, throwing Windley to the floor. (The driver intended to use the telephone to call the police.) Not more than ten seconds elapsed from the time the window was broken until the bus came to a stop. Several other passengers testified that when the bus stopped they were thrown forward slightly, but none was injured.
The trial court, relying on the "Guest Statute," Code § 8-646.1,[*] ruled Windley *369 had the burden of proving the driver was guilty of gross negligence. Adopting the definition of gross negligence approved in Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971), the trial court instructed the jury that:
gross negligence is that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of the guest. It must be such a degree of negligence as would shock fair minded persons although something less than willful recklessness.
Proof of gross negligence depends upon the facts and circumstances of the particular case. If fair minded men can differ respecting the conclusion to be drawn from the evidence, a jury question is presented. On the other hand, if the evidence is such that fair minded men cannot differ, the question whether gross negligence has been established is one of law. Alspaugh v. Diggs, 195 Va. 1, 5, 77 S.E.2d 362, 364 (1953).
Gross negligence, of course, requires proof of something more than the lack of ordinary care. Reel v. Spencer, 187 Va. 530, 535, 47 S.E.2d 359, 361 (1948).
A mere failure to skilfully operate an automobile under all conditions, or to be alert and observant, and to act intelligently and operate an automobile at a low rate of speed may, or may not, be a failure to do what an ordinarily prudent person would have done under the circumstances, and thus amount to lack of ordinary care; but such lack of attention and diligence, or mere inadvertence, does not amount to wanton or reckless conduct, or constitute culpable negligence for which defendant would be responsible to an invited guest.
Young v. Dyer, 161 Va. 434, 440-41, 170 S.E. 737, 739 (1933).
Applying these principles in Carr v. Patram, 193 Va. 604, 70 S.E.2d 308 (1952), we held a driver was not grossly negligent in losing control of her car when a tire went flat. This was so even though the driver admitted she may have put her foot on the accelerator rather than the brake. Id. at 611, 70 S.E.2d at 313. Similarly, in Lloyd v. Green, 194 Va. 948, 76 S.E.2d 190 (1953), a driver lost control of her car after she was recklessly passed by another vehicle. We held that, while the driver may have become unnerved by the emergency and failed to act promptly and intelligently, this conduct did not amount to gross negligence. Id. at 954, 76 S.E.2d at 194.
In the instant case, Windley does not claim the driver was negligent in any respect before the missiles were thrown at the bus, nor does he argue the driver violated a statutory duty. He contends, however, that the sudden, abrupt stopping of the bus while the driver knew he was standing in the aisle warranted the jury's finding that the driver was guilty of gross negligence.
Viewing the evidence and all reasonable inferences in the light most favorable to Windley, we conclude the driver's actions were not so negligent as to "shock fair minded persons." The events leading to Windley's injury, including the stopping of the bus at the telephone booth, were precipitated by the dangerous and senseless acts of unknown persons. It is apparent that, confronted with a sudden attack upon his bus, the driver acted reasonably under the circumstances. While he may not have taken the wisest course, he was clearly not grossly negligent.
Accordingly, we will reverse the judgment of the trial court and enter final judgment for the appellant.
Reversed and final judgment.
NOTES
[*] Code § 8-646.1 provided that:
No person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation ... shall be entitled to recover damages against such owner or operator for death or injuries to the person or property of such guest resulting from the operation of such motor vehicle, unless such death or injury was caused or resulted from the gross negligence or willful and wanton disregard of the safety of the person or property of the person being so transported on the part of such owner or operator.
In April, 1974, the General Assembly amended Code § 8-646.1 to provide that a guest could recover from an owner or operator upon proving simple negligence. Acts 1974, c. 551. This section has been recodified as Code § 8.01-63.
Windley objected at trial to the requirement that he prove gross negligence. However, since he did not assign cross-error, the trial court's ruling has become the law of the case. Rule 5:27. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333250/ | 165 Ga. App. 157 (1983)
299 S.E.2d 884
FRYER
v.
THE STATE.
64901.
Court of Appeals of Georgia.
Decided January 18, 1983.
*160 John R. Francisco, for appellant.
Willis B. Sparks III, District Attorney, George F. Peterman III, Assistant District Attorney, for appellee.
SHULMAN, Chief Judge.
Appellant was convicted of theft of a motor vehicle.
1. During a colloquy with the trial court, one of the jurors requested a recharge on the law of recent possession of stolen property. The juror also began but did not finish a question concerning the burden of proof. Appellant now contends, although no note was taken of the question at trial, that the juror demonstrated confusion about the burden of proof and that the trial court erred in failing to correct the allegedly confused view of the burden of proof. We cannot agree.
To come to the conclusion reached by appellant, the incomplete question must be completed by the addition of words that were not spoken and by the assumption that the use of the pronoun "he" referred to appellant rather than to any of the other males present in the courtroom. We are not willing to fill in the blanks as appellant has *158 done and would have us do. Our review of the charge shows that the trial court clearly and emphatically placed the whole burden of proof on the state. We find no error in the charge as given.
2. Appellant's second enumeration of error concerns the overruling of an objection to a line of questioning being pursued by the state during cross-examination of appellant and the admission of documentary evidence proffered for the purpose of impeaching statements made by appellant during that cross-examination.
During the presentation of its case, the state introduced bench warrants issued against appellant when he failed to appear for scheduled hearings. The purpose of those exhibits was to show flight by appellant. On direct examination, appellant attempted to explain why he failed to appear at the hearings. On cross-examination, the following occurred:
"[By prosecuting attorney]
Q. Mr. Fryer, this first warrant was issued in October of 1980 and you weren't arrested from what you say here until September of 1981. Why didn't you come down and turn yourself in?
A. I wasn't able to do that at that time.
Q. Why weren't you able to do that?
A. Because I was being sought after.
Q. On these warrants?
A. No. It wasn't yes. It was on those warrants; true enough. But it was another thing that I was being sought after that I didn't want to have any involvement in.
Q. And what was that?"
Appellant's counsel objected to the line of questioning as being outside the scope of legitimate cross-examination, but the objection was overruled. Appellant then testified that he stayed away and missed two court appearances and then failed to surrender himself because he was being sought for questioning in the investigation of the killing of the Bibb County District Attorney. After appellant rested, the state offered in rebuttal the convictions and sentences of the persons convicted for the murder of the district attorney. The purpose of introducing those documents was to impeach appellant's claim that the pendency of that investigation was the reason he did not return to face the charges against him. The documents showed that the murder case was concluded some five months before appellant's arrest.
Appellant's chief objection on appeal to the admission of that evidence is that it placed his character in issue. We find no error in that regard.
"`Evidence, if otherwise admissible, does not become inadmissible because it incidentally put the appellant's character in *159 issue. (Cit.)'" Grindle v. State, 151 Ga. App. 164 (2) (259 SE2d 166). "The evidence contradicted appellant's testimony and was admissible for the purpose of impeachment. A criminal defendant is subject to impeachment, and he may be impeached by disproving the facts to which he testified. [Cits.]" Laney v. State, 159 Ga. App. 609, 612 (9) (284 SE2d 114).
3. During the presentation of the defense, appellant requested a continuance because of the absence of a witness. The refusal of the continuance is enumerated as error. Since there was no showing that the witness was ever served with a subpoena, the denial of the continuance was not an abuse of discretion. Apgar v. State, 159 Ga. App. 752, 754 (4) (285 SE2d 89).
4. The denial of appellant's motion for new trial is enumerated as error. Three of the four special grounds raised by the motion were dealt with in the first three divisions of this opinion. The fourth issue raised by appellant concerns affidavits attached to the motion which appellant argues would have required an acquittal if the evidence had been presented at trial.
Although the ground in support of which the affidavits were submitted was not expressly raised in the motion for new trial, appellant apparently submitted them as newly discovered evidence which would require a new trial. They do not function adequately in that office.
"The rules relating to the grant of a new trial based on newly discovered evidence are: (1) that the evidence has come to the knowledge of the moving party since the trial; (2) that it was not owing to the want of due diligence that the moving party did not acquire it sooner; (3) that it was so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. [Cit.]" Walters v. State, 128 Ga. App. 232, 233 (196 SE2d 326).
The affidavits offered by appellant do not meet the first two rules. One affidavit was from a woman who swore that appellant spent with her the night on which the automobile was stolen. Appellant does not seriously contend that he was unaware of that evidence until after trial. The other affidavit also concerns matter of which appellant was aware at the time of trial since it was made by the witness who failed to appear at trial. The evidence offered in support of that motion for new trial was inadequate and the trial court did not err in denying the motion.
Judgment affirmed. Quillian, P. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1733293/ | 367 So. 2d 393 (1979)
Mrs. Inez L. GREEN, Individually and on behalf of the minor child, Nathaniel Green
v.
ORLEANS PARISH SCHOOL BOARD.
No. 63768.
Supreme Court of Louisiana.
February 9, 1979.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312889/ | SALVADOR MENDOZA, JR., United States District Judge
Before the Court, without oral argument, is Plaintiff Ricardo Olivera Silva's Motion to Expedite and for Protective Order, ECF No. 34. Plaintiff requests that the Court enter a protective order to prevent discovery related to his immigration status.
BACKGROUND
Plaintiff filed his complaint of December 20, 2017, alleging that Yakima County's policy and practice of placing immigration holds on persons detained in Yakima County Jail on the basis of Form I-200s resulted in his being detained without probable cause in violation of his Fourth Amendment right to be free from unreasonable seizures. ECF No. 1 at 9-10.
The parties have exchanged written discovery, and Defendants have noted Plaintiff's deposition for June 19, 2018. ECF No. 35 at 2. Through their written discovery, Defendants requested Mr. Olivera's addresses for the past ten years and the names and addresses of all employers for the past ten years. Id. Mr. Olivera did not provide any information related to employers, but provided the names of the towns where he has lived in the United States from 2014 to present. Id. Counsel for Plaintiff and Defendants conferred on May 24, 2018. Plaintiff's counsel advised Defendants *930that Plaintiff would seek a protective order related to the specific address and employment information requested in the written discovery. She also advised that Plaintiff would seek to protect against questions related to Mr. Olivera's immigration status during the deposition.
DISCUSSION
A. Meet and Confer Requirement
Federal Rule of Civil Procedure 26 permits a party from whom discovery is sought to seek a protective order. As a prerequisite to judicial intervention, the movant must certify that "the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action." Fed. R. Civ. P. 26(c)(1). Plaintiff's counsel, Lori Jordan Isley, certified that she conferred with Defendants' attorney, Quinn Plant, on May 24, 2018, but was unable to resolve the dispute. ECF No. 35 at 3. The Court therefore finds that the parties have satisfied the meet and confer requirement.
B. Motion for Protective Order
Plaintiff seeks a protective order prohibiting Defendants from inquiring into (1) Plaintiff's past employment history and addresses for the past ten years, and (2) any matters related to Plaintiff's immigration status. Defendants have not responded to the motion.
Rule 26(c) permits the Court to enter a protective order when the party seeking the order establishes good cause for protecting a party from "annoyance, embarrassment, oppression, or undue burden or expense ...." The burden of persuasion is on the party seeking the protective order to show good cause by "demonstrating harm or prejudice that will result from the discovery." Rivera v. NIBCO, Inc. , 364 F.3d 1057, 1064 (9th Cir. 2004). "If a court finds a particularized harm will result from disclosure of information to the public, then it balances the public and private interests to decide whether a protective order is necessary." Phillips ex rel. Estates of Byrd v. Gen. Motors Corp. , 307 F.3d 1206, 1210-11 (9th Cir. 2002).
The harm in disclosing Plaintiff's immigration status is significant. Regardless of Plaintiff's own immigration status, requiring a plaintiff to disclose his immigration status will likely deter individuals from coming forward regarding immigration-related due process issues such as this. This chilling effect is a real and substantial harm. See Rivera , 364 F.3d at 1065.
Moreover, Defendants have not established how this information is relevant to the substance of Plaintiff's claims. Whether Plaintiff was legally present in the United States when he was detained by the Yakima Police Department does not affect whether the Form I-200 provided a legitimate basis to prolong his detention. The issue is not whether the facts alleged in the Form I-200 were true, but whether the form provided probable cause to detain Plaintiff after he posted bail.
The written discovery Defendants seek regarding Plaintiff's address and employment history over the past decade is likewise unnecessary. Although Plaintiff's complaint claims "damages arising from Defendants' unlawful detention in an amount to be proven at trial," ECF No. 1 at 11, Plaintiff has advised Defendants that this sum does not include damages for lost wages, ECF No. 35 at 1. Because Plaintiff does not seek damages for lost wages, the Court cannot think of any compelling reason Defendants must have access to Plaintiff's employment and address history over the past decade. Instead, this information *931appears calculated to reveal information that may indicate Plaintiff's immigration status, which is not a legitimate subject of inquiry.
Accordingly, IT IS HEREBY ORDERED :
1. Plaintiff's Motion to Expedite and for Protective Order, ECF No. 34 , is GRANTED .
2. Defendants shall not inquire-through written discovery or in depositions-about the immigration status of Plaintiff or any other witness in this case. This includes, but is not limited to: place of birth, national origin, immigration documents, passports, visas, social security numbers or statements, tax identification numbers or other tax information, status of immigration proceedings, and information regarding entry into the United States.
3. Defendants are further prohibited from seeking addresses and past employment information from Plaintiff or any other witness in the case. This restriction does not apply to information necessary to establish foundation for a witness's expertise or basis of knowledge.
IT IS SO ORDERED. The Clerk's Office is directed to enter this Order and provide copies to all counsel.
ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION
Before the Court, without oral argument, is Defendants' Motion for Reconsideration, ECF No. 37. On June 5, 2018, Plaintiff filed an expedited motion for a protective order barring discovery into Plaintiff's immigration status and his employers and home addresses for the past ten years. ECF No. 34. The Court granted the motion to expedite and entered a protective order on June 5, 2018. ECF No. 36. Defendants filed an expedited motion for reconsideration on June 5, 2018, ECF No. 37, and filed their response to Plaintiff's motion for protective order on that same date, ECF No. 39. Defendants represent that they were under the impression that they would have until June 6, 2018, to respond to Plaintiff's motion. Because Defendants' representation appears to be truthful, the Court has read and considered Defendants' responsive briefing. Although Defendants' arguments against the protective order are well-taken, the Court's balancing of the Rule 26(c) factors remains unchanged. Accordingly, the Court denies Defendants' motion for reconsideration.
Federal Rule of Civil Procedure 26 provides that, in general, any matter relevant to a claim or defense is discoverable. Fed. R. Civ. P. 26(b). However, this rule is subject to the limitations in Rule 26(c), which allows the court "for good cause, [to] issue an order" limiting discovery "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." When determining whether to grant a protective order under Rule 26(c), courts conduct a balancing test. See Phillips ex rel. Estates of Byrd v. Gen. Motors Corp. , 307 F.3d 1206, 1210-11 (9th Cir. 2002). The court must weigh the probative value of the information sought against the interests of the party from whom the information is sought. Id. at 1211. The court must also factor into its consideration the interests of the public. Id.
Plaintiff asserts that allowing Defendants to inquire into Plaintiff's immigration status would chill Plaintiff's willingness and ability to enforce his civil rights through the instant § 1983 action. If Plaintiff *932were forced to reveal that he was in the United States illegally, he might face criminal prosecution and deportation. Even if he were in the United States legally, this type of discovery still presents a potentially chilling effect. As the Ninth Circuit recognized in Rivera v. NIBCO, Inc. , 364 F.3d 1057, 1065 (9th Cir. 2004), a person legally in the United States may still fear that "their immigration status would be changed, or that their status would reveal the immigration problems of their family or friends." The court went on to observe that such fears may cause similarly situated plaintiffs to "choose to forego civil rights litigation." Id.
In addition to the specific chilling effects immigration-related discovery might have on Plaintiff, the public's interest would also be harmed by such discovery. Any chilling effect presents a substantial burden to the public interest because § 1983 litigation provides a mechanism for plaintiffs to shed light on civil rights violations and enforce their own rights when such violations occur. In the context of a Title VII action, the Ninth Circuit noted that "[g]ranting employers the right to inquire into workers' immigration status in cases like this would allow them to raise implicitly the threat of deportation and criminal prosecution every time a worker, documented or undocumented, reports illegal practices or files a Title VII action." Id. These concerns are perhaps even more pressing in the case at bar. Because the claims here necessarily involve investigatory proceedings initiated by ICE, a plaintiff with standing to bring claims such as Plaintiff's almost certainly has a heightened interest in preventing the discovery and dissemination of his or her immigration status. The potential chilling effect of permitting Defendants to inquire into a Plaintiff's immigration status therefore weighs heavily in the Court's 26(c) analysis.
In contrast to the heavy burden Defendants' discovery efforts would impose upon the Plaintiff and the public interest, the probative value of the information sought by Defendants is limited. Defendants argue that Plaintiff's immigration status has potential relevance to his claim for emotional distress damages. They assert that the emotional distress alleged by Plaintiff may be partially attributable to his immigration status and related federal immigration enforcement efforts, which are distinct from Defendants' conduct. On this point, Defendants' response is helpful to the Court as it demonstrates the potential utility of the requested information. However, the fact remains that the information sought is not relevant to Defendants' liability. Plaintiff's immigration status is only conditionally relevant on the issue of damages. That is, the information becomes relevant only if a factfinder first makes a finding of liability. See id. at 1070 (noting that employees' immigration status was not essential to defense, even if it could affect availability of certain remedies).
The probative value of Plaintiff's immigration status is further reduced by the other facts known to Defendants and not in dispute in this case. Neither party disputes that Immigration and Customs Enforcement (ICE) issued an administrative warrant for Plaintiff between July 22 and July 24, 2017. Defendants further assert in their responsive memorandum that the government has initiated removal proceedings against Plaintiff. ECF No. 39 at 4. It is therefore unclear how further inquiry into Plaintiff's immigration status will advance Defendants' case. To the extent Defendants seek to posit that ICE's investigation into Plaintiff as an alternative source of emotional distress, sufficient evidence exists to do so without the need to depose Plaintiff or collect written discovery on this subject.
*933Finally, Defendants urge the Court to permit discovery into Plaintiff's addresses and employers over the past decade. For the same reasons the Court finds inquiry into Plaintiff's immigration status is not appropriate in this case, it concludes that Defendants' inquiry into Plaintiff's addresses and employment history is properly excluded from Defendants' discovery. Unlike Rivera, where the Plaintiffs' asserted employment claims, Defendants' requests do not appear even reasonably calculated to reveal discoverable information. The attendant risk of Defendants using the information to deduce facts about Plaintiff's immigration status therefore outweighs any limited probative value such information may yield.
Accordingly, IT IS HEREBY ORDERED :
1. Defendants' Motion for Reconsideration, ECF No. 37 , is DENIED .
2. The parties shall abide by the Court's protective order, ECF No. 36.
IT IS SO ORDERED. The Clerk's Office is directed to enter this Order and provide copies to all counsel.
DATED this 13th day of June 2018. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2263058/ | 893 A.2d 151 (2006)
INFINITY BROADCASTING CORPORATION, Petitioner
v.
PENNSYLVANIA HUMAN RELATIONS COMMISSION, Respondent.
Commonwealth Court of Pennsylvania.
Argued November 14, 2005.
Decided February 9, 2006.
Reargument Denied March 29, 2006.
*152 Judith E. Harris, Philadelphia, for petitioner.
*153 Pamela Darville, Asst. Chief Counsel, Philadelphia, for respondent.
Jeffrey Campolongo, Philadelphia, for intervenor, Shawn Brooks.
BEFORE: McGINLEY, Judge, COHN JUBELIRER, Judge, and SIMPSON, Judge.
OPINION BY Judge COHN JUBELIRER.
Infinity Broadcasting Corporation (Employer) petitions for review of a final order of the Pennsylvania Human Relations Commission (PHRC) that found that it had unlawfully discriminated against its employee, Shawn Brooks, based on his raceAfrican Americanin violation of Section 5(a) of the Pennsylvania Human Relations Act (PHRA)[1] when it created a hostile work environment which resulted in Brooks' constructive discharge.
The following facts have been taken from the Hearing Panel's adjudication.[2] Brooks began working for Employer in September 2000 as the only African American account executive, selling advertising on radio station WYSP in connection with its broadcasts of the Philadelphia Eagles football games. His yearly salary was $30,000 with $2,500 a month "draw."[3] Brooks and six other account executives reported to Joseph Zurzolo, Sales Manager, who reported to Peter Kleiner, General Sales Manager, who in turn reported to Kenneth Stevens, Vice President/General Manager. Employer had an anti-discrimination/harassment policy in place providing that harassment based on race would not be tolerated and that a complainant could file a complaint with any designated representative for Employer. (Findings of Fact (FOF) ¶¶ 40-44.)[4]
On May 9, 2001, Zurzolo conducted a sales meeting where he distributed a book entitled, "New Dress for Success," (the book) to his account executives in an effort to address the unprofessional manner in which a Caucasian female account executive had been dressing. (FOF ¶¶ 13-14, 91.) He had not read the book prior to distributing it, but the book had been recommended to him by Jeffrey Snodgrass, WYSP's Sports Sales Manager. Zurzolo distributed the book to all account executives in an effort not to single the female account executive out. Id. Brooks took the book home that day but, after reading it, contacted Sandy Shields, Human Resource Director, and complained about the content of the book. Specifically, Brooks was offended by specific passages in the book[5]*154 that referred to "most blacks being anti-establishment," "afros," "ghettos," "ghetto black," and advised Black salesmen to "dress very white." (See FOF ¶ 18.) Brooks testified that he did not contact Zurzolo or anyone else in the office because he did not trust them and felt that the views of the book were tolerated and accepted. (FOF ¶¶ 19, 20, 25-26.)
Shields spoke to Brooks on several occasions about the book, and she testified that she agreed with Brooks that the contents were offensive. (FOF ¶¶ 45, 49.) Shields, however, did not contact Employer's corporate office about Brooks' concerns, but she did collect the books from all of the account executives the same day the books were distributed. (FOF ¶¶ 49-50.) Brooks testified that none of the supervisors did anything regarding the book and that Zurzolo was not formally disciplined for distributing it. (FOF ¶¶ 53, 96.) However, Zurzolo and Kleiner made several telephone calls to Brooks asking him to return their calls, but he never returned their calls because he did not trust or respect them. (FOF ¶¶ 54-55.) Moreover, Zurzolo testified that he did not read the book prior to it being distributed, and that, in retrospect, he wished he had never distributed the book because he could see how someone would be offended by it. (FOF ¶¶ 93, 95.)
There is no evidence in the record to suggest that, prior to Brooks' complaint to Shields about the content of the book, he had ever before reported any alleged discriminatory conduct.
Brooks filed his complaint with the PHRC on May 16, 2001.[6] The complaint alleged only that Employer's distribution of the book created a hostile work environment, which caused his constructive discharge. Brooks did not make any other allegations. The PHRC made a subsequent investigation into Brooks' allegations and notified both parties that probable cause existed to credit the allegation that the distribution of the book, alone, violated the PHRA. Thus, the case was approved for a public hearing.
On November 6, 2003, a public hearing was held before a Hearing Panel of three Commissioners. Not only did Brooks testify as to the offensive content of the book, but he also testified that Zurzolo racially harassed him prior to the distribution of the book on several occasions when: 1) Zurzolo made a comment to Brooks about "having to go with [Brooks'] fiancée," which Brooks perceived to mean that Zurzolo wanted to have sex with her; 2) Zurzolo, on several occasions, would put his palm on the head of an older African American receptionist, Edith Mason, which he felt was a racially offensive gesture;[7]*155 3) Zurzolo used the ethnic slur "dago" in reference to himself; 4) Zurzolo touched an African American receptionist on a sales call at Comcast; and 5) someone stole a promotional banner relating to his ING Direct account, which he felt was racially motivated. (FOF ¶¶ 21-23, 28-30; Hearing Panel Op. at 30; PHRC Br. at 23.) There is no evidence of record to suggest that Brooks orally, or in writing, requested to amend his Complaint to include these additional allegations of harassment.
The Hearing Panel issued findings of fact, conclusions of law, an opinion, a proposed order and a recommendation finding Brooks had proven racial discrimination in violation of Section 5(a) of the PHRA. Specifically, the Hearing Panel found that Brooks established a prima facie case of harassment based on race because: 1) Brooks was subjected to offensive conduct based on the distribution of the book and the other allegations of harassment; 2) the distribution of the book was severe and the other allegations of harassment were pervasive; 3) Brooks was detrimentally affected by the harassment, negating his ability to work, which was reasonable under the circumstances; and, 4) Brooks' direct supervisor was the individual who distributed the book and also engaged in the other allegations of harassment. (Op. at 29-32.) The Hearing Panel also determined that Brooks was constructively discharged based on the racially offensive conduct at his workplace. (Op. at 33.) The Hearing Panel noted that Brooks' complaint was never taken seriously by Shields or anyone else at the office and that Zurzolo was never formally disciplined in any manner. Id. at 34. Finding that Brooks had shown unlawful discrimination under the PHRA, the Hearing Panel recommended that he be awarded back pay and front pay. Id. at 35-38.
On February 28, 2005, the PHRC adopted, in full, the Hearing Panel's findings and recommendation that Brooks was subjected to a hostile work environment and was constructively discharged. The PHRC awarded Brooks $282,262.00 in back pay and five years of front pay, in the amount of $328,000.00, based on four of the highest paid account executives.[8] In addition, the PHRC ordered Employer to 1) draft and implement internal policies and procedures, subject to the PHRC's review, for handling employee complaints of discriminatory treatment; and, 2) provide workplace training on harassment and anti-discrimination laws.
On March 30, 2005, Employer petitioned this Court for review. A few days later, the PHRC stayed its Final Order in exchange for Employer's agreement to post a bond in the amount of the monetary damages awarded to Brooks.
On appeal,[9] Employer raises seven issues for our review. We are asked to determine whether the PHRC: 1) denied Employer due process because one of the members on the Hearing Panel, Commissioner *156 Raquel Otero de Yiengst, was not impartial; 2) erroneously admitted into evidence and relied upon acts of alleged harassment other than the distribution of the book; 3) erred in determining that Employer subjected Brooks to a hostile work environment; 4) erred in determining that Brooks was constructively discharged; 5) erred in determining that Brooks is entitled to recover $282,262.00 in back pay; 6) erred in awarding Brooks more than $300,000.00 in front pay; and, 7) erred in ordering injunctive relief.
Employer first argues that it was denied due process because Commissioner Otero de Yiengst was not impartial. Specifically, Employer argues that the Commissioner had prior knowledge of the book and harbored negative personal feelings toward it when she stated at the end of her questioning that "I'm Hispanic and ... it is my belief that anybody that would read that book would be greatly offended by that...." (11/6/03 Tr. at 325.) Thus, Employer argues that it was denied due process because the Commissioner publicly expressed her predisposition of bias in favor of Brooks.
It is clear that being afforded a fair trial before a fair tribunal is a basic requirement of due process, and that this requirement applies to administrative agencies. Dayoub v. Com., State Dental Council and Examining Bd., 70 Pa. Cmwlth. 621, 453 A.2d 751, 753 (1982). "It is equally clear that due process is denied where there is a commingling of the prosecutorial and adjudicatory functions before an administrative body, and that administrative tribunals must be unbiased and must avoid even the appearance of bias to be in accordance with principles of due process." Id. (citation omitted). We are mindful that our focus is on the fact finding process, which "must be afforded the broadest dimensions of constitutional protections." Id. (citing Com., Human Relations Comm'n v. Thorp, Reed, Armstrong, 25 Pa.Cmwlth. 295, 361 A.2d 497 (1976)).
However, contrary to Employer's assertion of a violation of due process, we agree with the PHRC that the remarks made by Commissioner Otero de Yiengst were nothing more than her observations of a book that is offensive. The record demonstrates that this statement was made after all the evidence was submitted and, thus, supports the finding that the Hearing Panel properly weighed all the evidence presented in its adjudication, Togans v. Com., State Civil Serv. Comm'n, 69 Pa.Cmwlth. 431, 452 A.2d 576, 579 (1982), prior to forming an opinion. Therefore, this particular remark by the Commissioner is insufficient to reverse the PHRC's decision. Moreover, the PHRC independently evaluated all the evidence presented and was not compelled to accept the recommendation made by the Hearing Panel. Therefore, we find no violation of Employer's constitutional right to due process.
Next, Employer asserts that the PHRC erred in admitting evidence and relying on acts of alleged harassment other than the distribution of the book, which included: a) Zurzolo's use of ethnic slurs to describe himself as a "dago"; b) comments by Zurzolo which Brooks perceived as expressing a desire to have sex with Brooks' fiancé; and, c) Zurzolo's habit of "palming" the head of his African American receptionist. (Hearing Panel Op. at 28, 30-33.)
Section 9(a) of the PHRA permits any person claiming to be aggrieved by an unlawful discriminatory practice to file with the PHRC a written verified complaint setting forth "the particulars" against the employer alleged to have committed the discrimination. 43 P.S. § 959(a). The General Assembly provided this procedure to put the alleged discriminator on notice of the specific conduct *157 which is alleged to be discriminatory. Murphy v. Pa. Human Relations Comm'n, 77 Pa.Cmwlth. 291, 465 A.2d 740, 746 (1983), affirmed, 506 Pa. 549, 486 A.2d 388 (1985), appeal dismissed, 471 U.S. 1132, 105 S.Ct. 2669, 86 L.Ed.2d 689 (1985). After the filing of the complaint, the PHRC conducts a prompt investigation in connection with the complaint. 43 P.S. § 959(b)(1). Following the investigation, if probable cause is found to credit the allegations of the complaint, and if attempts to conciliate the dispute fail, the PHRC "may approve the convening of a public hearing on the merits of the complaint." 16 Pa. Code § 42.101 (emphasis added). "Only after the alleged discriminator is informed of the specific conduct complained of, has been informed that the Commission has found probable cause to credit the allegations of the complaint, and has refused, after conciliation efforts, to modify its behavior, does the matter proceed through the sometimes lengthy and expensive process of a formal hearing...." Murphy, 465 A.2d at 746 (emphasis added). It is at this public hearing where the alleged discriminator is required to "answer the charges of such complaint." 43 P.S. § 959(d) (emphasis added).
Employer contends that admitting into evidence and relying on Brooks' testimony of the other allegations of harassment was error because: 1) it was denied an opportunity to respond to these allegations during the investigative stage of the PHRC's proceedings; 2) the PHRC relied entirely on the distribution of the book in finding probable cause; and, 3) Brooks did not raise any allegation of harassment, other than the book, in the complaint. Therefore, the additional allegations of harassment were beyond the scope of the hearing.
The PHRC argues that Brooks' testimony, regarding the other alleged acts of harassment, was admitted into evidence as exceptions to the hearsay rule as to Brooks' "state of mind" with respect to the racial hostility, intimidation and condescension, and to explain why Brooks did not trust Employer's Caucasian management staff. Therefore, the PHRC's reliance on this evidence was proper. We disagree.
Both the PHRA and case law make clear that the PHRC should not have relied on evidence other than the distribution of the book in finding a hostile work environment and constructive discharge. The complaint did not list the other allegations of harassment, and at no time did Brooks amend the complaint to reflect the same. 43 P.S. § 959(e) (stating that "the complainant shall have the power reasonably and fairly to amend any complaint....") The purpose of filing a complaint under Section 9 of the PHRA is not simply to inform an alleged discriminator that it will be made the subject of an investigation; it is also to inform the employer of the specific conduct complained of, so that it will know, after probable cause is found, and conciliation efforts are initiated, what voluntary changes it can make to avoid litigation. Murphy, 465 A.2d at 746. Here, the complaint failed to perform this function. Consequently, Employer failed to receive notice of the additional allegations and, consequently, was denied the opportunity to defend against them. Accordingly, we hold that the PHRC erred in admitting evidence and relying on allegations of harassment other than what was alleged in the complaintthe distribution of the book.
Next, Employer argues that the PHRC erred in finding that it subjected Brooks to a hostile work environment.[10]*158 In order to prima facie establish a hostile work environment under the PHRA, a complainant must demonstrate that he: 1) suffered intentional discrimination because of his race or gender; 2) the harassment was severe or pervasive and regular; 3) the harassment detrimentally affected him; 4) the harassment would detrimentally affect a reasonable person of the same protected class; and 5) the harasser was a supervisory employee or agent. Barra v. Rose Tree Media Sch. Dist., 858 A.2d 206, 215 (Pa.Cmwlth.2004). The main issue that we are confronted with in this case is whether the distribution of the book, alone, is enough to demonstrate a hostile work environment based on racial discrimination.
In determining whether a working environment is sufficiently hostile or abusive, courts must look to the totality of the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). The conduct must constitute an objective change in the terms and conditions of employment. Faragher, 524 U.S. at 787, 118 S.Ct. 2275. Thus, "simple teasing, offhand comments, and isolated incidents (unless extremely serious)" are not actionable under the PHRA. Id. at 788, 118 S.Ct. 2275.
We find that Brooks has failed to present sufficient evidence with respect to the second element, whether the harassment was severe or pervasive and regular.
To be actionable under the PHRA, the harassing behavior complained of must be "sufficiently severe or pervasive to alter the conditions of [the complainant's] employment and create an abusive working environment." Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (citations and internal quotation marks omitted) (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir.1982)). Harassment is pervasive and regular when "incidents of harassment occur either in concert or with regularity." Andrews v. City of Philadelphia, 895 F.2d 1469, 1484 (3rd Cir.1990) (quoting Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1189 (2nd Cir.1987)). Despite this high standard, however, the Third Circuit has acknowledged that "the advent of more sophisticated and subtle forms of discrimination requires that [courts] analyze the aggregate effect of all evidence and reasonable inferences therefrom, including those concerning incidents of facially neutral mistreatment, in evaluating a hostile work environment claim." Cardenas v. Massey, 269 F.3d 251, 261-62 (3rd Cir.2001).
The Third Circuit found sufficient evidence to support a hostile work environment claim in Cardenas and Aman v. Cort Furniture Rental Corp., 85 F.3d 1074 (3rd Cir.1996), wherein the complainants introduced several instances of severe and pervasive harassment. In Cardenas, the defendants subjected a Mexican-American employee to ethnic slurs, including referring to him as "the boy from the barrio" and "mojado" (the Spanish word for "wetback"), wrote derogatory messages on the *159 marker board in plaintiff's cubicle, rounded the numbers on all other employee evaluations upward while rounding the plaintiff's numbers downward, disproportionately assigned other minorities and trainees to the employee's unit, knowingly gave employee contradictory instructions and impossible-to-perform tasks, and referred to employee as "an affirmative-action hire." Cardenas, 269 F.3d at 258-59. Similarly, in Aman, the Third Circuit found a hostile work environment where African-American employees were referred to as "one of them" or "another one," told not to touch or steal anything, made to do menial jobs, screamed at, threatened with termination, had their time cards stolen, were falsely accused of wrongdoing, had information necessary to do their jobs withheld, and were given conflicting orders. Additionally, the employer's general manager had commented at a district meeting that "the blacks were against the whites" and that if they did not like it they could leave. Aman, 85 F.3d at 1078-79.
Although Cardenas and Aman are just two examples of a hostile work environment based on severe and pervasive harassment, courts have consistently required a stronger showing of egregious conduct than that described by Brooks. See, e.g., Woodland v. Joseph T. Ryerson & Son, Inc., 302 F.3d 839, 843-44 (8th Cir.2002) (holding that "racist graffitidrawings of `KKK,' a swastika, and a hooded figure" on the walls of the plant bathroom, a racially derogatory "poem" strewn about the plant, and three racially derogatory comments made about plaintiff (but out of his presence) were "neither severe nor pervasive ..."): Peters v. Renaissance Hotel Operating Co., 307 F.3d 535 (7th Cir.2002) (finding that six incidents, including a reference to black music as "wicca wicca woo music" by a supervisor, a bartender's request to investigate an African-American guest who was allegedly stealing coins from a fountain, other African-American guests being denied additional ice and cups for a party, and one use of the word "n____" in complainant's presence, were not severe or pervasive); Bolden v. PRC, Inc., 43 F.3d 545, 551 (10th Cir.1994) (holding that two overtly racial remarks directed at complainant, including use of the terms "KKK" and "n____," distribution of a racial cartoon, and general ridicule and harassment were not severe or pervasive).
When weighed against the above, the one time distribution of the book is insufficient to satisfy the severity requirement of a hostile work environment claim. While there is no question that the distribution of the book at issue here was unprofessional, insulting and insensitive, it was not severe and pervasive as in Cardenas and Aman. Here, there was one isolated incident of alleged harassment and, while it is possible for a single action to constitute a claim for hostile work environment harassment if the act is "of such a nature and occurs in such circumstances that it may reasonably be said to characterize the atmosphere in which a plaintiff must work," generally a complainant must show that he was subjected to "repeated, if not persistent acts of harassment." Bedford v. Southeastern Pa. Transp. Auth., 867 F.Supp. 288, 297 (E.D.Pa.1994). In other words, the isolated incident must be "extremely serious." Faragher, 524 U.S. at 788, 118 S.Ct. 2275.
There is no reported Pennsylvania state or 3rd Circuit/federal district court decision within Pennsylvania in which a court has found that a single incident of racial harassment was sufficiently severe or pervasive to create a hostile work environment. However, the United States Supreme Court has addressed a similar issue when it recently found insufficient, as a *160 matter of law, a woman's complaint that her supervisor and a co-worker were talking and laughing in her presence about a comment that "making love to you is like making love to the Grand Canyon." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 269, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). Although the complainant was not the subject of the offensive statement, she was present while her supervisor and co-worker discussed it. Id. The High Court held, "[n]o reasonable person could have believed that the single incident recounted above violated Title VII's standard. [It was] at worst an `isolated inciden[t]' that cannot remotely be considered `extremely serious,' as our cases require." Id. at 271, 121 S.Ct. 1508 (citing Faragher).
The PHRC relies on Daniels v. Essex Group, Inc., 937 F.2d 1264 (7th Cir.1991) and Tomka v. The Seiler Corp., 66 F.3d 1295 (2nd Cir.1995), which are two out-of-state cases, for the proposition that a single, isolated incident could be considered pervasive or severe. However, the PHRC's reliance on these cases is misplaced. First, Daniels and Tomka did not involve a single incident of harassing behavior. Second, and more importantly, the facts in Daniels and Tomka are in direct contrast to the facts in this case because they dealt with intentional, inexcusable, and repulsive behavior such as hanging a black dummy by a noose; racist graffiti written in the restroom; calling an African American a "dumb n____"; and a complainant being raped repeatedly by her supervisors.
In the case sub judice, Employer shamefully made the mistake of ignorance when it distributed the book in an innocent manner. While Zurzolo failed to exercise responsibility and good judgment by not reading the book before it was distributed, which would have avoided Brooks' complaint, we cannot conclude that this isolated incident on the part of Employer rises to the severe level of that in Daniels and Tomka. It is not reasonable to believe that the single incident recounted above violated the PHRA's standard. In addition, the PHRC's record and findings demonstrate that the distribution of the book was not racially motivated. Zurzolo distributed the book because of a Caucasian female Account Executive who was dressing inappropriately; the book was distributed to all Account Executives, so as not to single the female out; and Zurzolo did not read the book prior to distribution and was, thus, unaware of its contents. Following Brooks' oral complaint about the contents of the book, Employer promptly responded by collecting all copies of the book, verbally reprimanding Zurzolo for distributing it without reading it first, and disavowing the views expressed in the book. Additionally, Zurzolo never distributed any other materials after his reprimand. Furthermore, there is no evidence that Zurzolo or anyone else employed by Employer made a racial comment directed to Brooks. Therefore, because of the lack of substantial evidence to support the PHRC's conclusion of a hostile work environment based on race, we must reverse the order of the PHRC.
Because we find that Brooks failed to show by substantial evidence that he was subjected to severe and pervasive harassment, we need not reach the other elements of a hostile work environment claim. Likewise, in finding Brooks was not subjected to a hostile work environment, the PHRC's finding of constructive discharge is reversed and, thus, damages are not appropriate.
ORDER
NOW, February 9, 2006, the order of the Pennsylvania Human Relations Commission *161 in the above-captioned matter is hereby reversed.
NOTES
[1] Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 955(a). Section 5(a) of the PHRA states, in pertinent part: "[i]t shall be unlawful discriminatory practice ... (a) [f]or any employer because of the race [or] color ... of any individual ... to refuse to hire or employ or contract with, or to bar or to discharge from employment...."
[2] On February 28, 2005, the PHRC adopted the Hearing Panel's findings, conclusions and recommendation in full.
[3] A "draw" represents dollars that are earned in regards to selling Eagles products or advertising sales. (FOF ¶ 7.)
[4] Employer's anti-discrimination/harassment policy states that it "will not tolerate any form of harassment on account of race, color...." (FOF ¶ 41.) The policy further defines harassment as:
Harassing conduct includes, but is not limited to: epithets, slurs or negative stereotyping; threatening, intimidating or hostile acts; degrading jokes and display or circulation in the workplace of written or graphic material that designates or shows hostility or aversion toward an individual or group; including through e-mail.
(FOF ¶ 42.)
[5] The Complaint avers that "[t]he book contained numerous racially offensive comments/statements, including but not limited to:
(i) "When selling to middle-class Blacks, you can not dress like a ghetto Black."
(ii) "You should avoid a solid dark blue [suit], it has a very negative association for Blacks."
(iii) "When selling to them [African-Americans], you can wear nothing that carries an establishment touch .... you must not wear the traditional suit, shirt and tie uniform."
(iv) "Women are much better at selling to blacks because they are considered to be outside the establishment."
(v) "Almost all members of Northern ghettos who are in lower socioeconomic groups are understandably antiestablishment."
(Compl. ¶ 3(f)(i)-(v).)
[6] After Brooks filed his Complaint, he returned to the office only to hand in his letter of resignation on May 28, 2001, when the radio station was closed.
[7] Ms. Mason, however, testified that this was a friendly gesture, which she did not find racially offensive. (11/7/03 Test. at 96-97.) In fact, Ms. Mason testified that she and Zurzolo were friends and worked together in the past, that he had informed her about her now current job with Employer and, on several occasions, he would periodically provide her transportation to and from work when the weather was bad. Id. at 94-96.
[8] There were approximately 25 account executives within the Company. (FOF ¶ 4.)
[9] This court's review is limited to whether the PHRC's determination is in accordance with law, whether the necessary factual findings are supported by substantial evidence, and whether there has been a violation of constitutional rights. Borough of Econ. v. Pa. Human Relations Comm'n, 660 A.2d 143, 146 (Pa.Cmwlth.1995), pet. for allowance of appeal denied, 543 Pa. 696, 670 A.2d 143 (1995). "Our appellate review must focus on whether there is rational support in the record, when viewed as a whole, to support the PHRC's action." Id.
[10] "The PHRA is generally applied in accordance with Title VII [of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.]. Thus, Pennsylvania courts may look to Title VII precedents when interpreting the Pennsylvania statute." Bailey v. Storlazzi, 729 A.2d 1206, 1211 n. 6 (Pa.Super.1999) (citations omitted); see also Chmill v. City of Pittsburgh, 488 Pa. 470, 491, 412 A.2d 860, 871 (1980) ("harmonizing" the PHRA and Title VII together). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263064/ | 893 A.2d 53 (2006)
383 N.J. Super. 650
Chase SHALER, a minor, by and through his Guardian ad Litem, Melissa SHALER, and Melissa Shaler, Individually, Plaintiffs-Respondents,
v.
TOMS RIVER OBSTETRICS & GY-NECOLOGY ASSOCIATES; and Joseph Cudia, M.D., Defendants, and
New Jersey Property-Liability Insurance Guaranty Association, Defendant/Intervenor-Appellant.
Superior Court of New Jersey, Appellate Division.
Argued February 16, 2006.
Decided March 10, 2006.
Mark M. Tallmadge, New York, NY, argued the cause for defendant/intervenor-appellant (Bressler, Amery & Ross, attorneys; Mr. Tallmadge and Richard J. Teer, on the brief).
*54 Michael L. Weiss, Northfield, argued the cause for respondent (The Weiss Law Firm, attorneys; Mr. Weiss, on the brief).
Before Judges WEFING, WECKER and FUENTES.
The opinion of the court was delivered by
FUENTES, J.A.D.
This appeal requires us to address a narrow issue of insurance law: Whether the New Jersey Property Liability Insurance Guaranty Association ("PLIGA") is obligated to pay excess coverage under a policy of insurance issued by a now insolvent carrier, when the primary coverage limits have not been paid by reason of insolvency of the primary insurer, and the excess policy provides that if the insurer issuing the primary coverage is unable to pay by reason of insolvency, the excess coverage would be collectible "only after the amounts set forth in the limits of the underlying [primary] coverage have been paid."
The question arises in the context of a settlement reached by plaintiffs and defendants, and approved of by PLIGA, where: (1) the insolvent carrier issued both the primary policy and the excess policy; (2) the coverage limit under the primary policy was one million dollars; (3) PLIGA paid its statutory maximum of $300,000 under the primary policy; and (4) the insured-tortfeasor was explicitly released from any personal liability arising out of the underlying cause of action.
We hold that, under these circumstances, PLIGA is not obligated to pay the statutory maximum, because the claim asserted does not fall within the meaning of a "covered claim" under the excess policy. Our conclusion is informed by our recent decision in Johnson v. Braddy, 376 N.J.Super. 215, 219-20, 869 A.2d 964 (App. Div.2005), aff'd, 186 N.J. 40, 890 A.2d 944 (2006), wherein we held that "if a plaintiff's damages exceed the tortfeasor's insurance coverage, the tortfeasor remains personally liable for the excess."
Here, but for the settlement agreement, the tortfeasor would have remained personally liable to pay the difference between PLIGA's statutory maximum of $300,000, and any award up to the one million dollars coverage limit of the primary policy. The personal liability protection provided to the tortfeasor in the settlement agreement prevents us from ascertaining whether he (the tortfeasor) is able to meet this financial obligation. Thus, without more, we are compelled to enforce the clear, unambiguous "coverage-trigger"[1] in the excess policy, requiring that the full amount of primary coverage be paid, before any obligation under the excess policy can arise. Because the trial court held otherwise, we reverse.
The legal issues discussed here came before the Law Division by way of cross-motions for summary judgment. We will thus recite the salient facts of the case based on the limited factual record developed before the trial court.
I
Plaintiff, Chase Shaler ("Chase"), is a minor. He brought this legal action by and through his Guardian Ad Litem, Melissa Shaler ("Shaler"), who also asserted an individual claim. The suit alleged medical malpractice against defendants Toms *55 River Obstetrics & Gynecology Associates ("Toms River"), Dr. Joseph Cudia ("Cudia"), and Community Medical Center (the "Center"). Under plaintiffs' theory of liability, Cudia, an obstetrician employed by Toms River, deviated from the standard of care expected of a physician of his specialty and training, by committing obstetrical negligence during the delivery of Chase. Specifically, plaintiffs allege that Chase sustained severe brain injury, manifested by cerebral palsy, progressive microcephaly, and subarachnoid hemorrhaging, resulting in significant developmental delays.
Plaintiffs' cause of action implicated three separate liability insurance policies. Cudia had both a primary and an excess liability policy covering him individually. Toms River had a group policy that provided coverage to the practice. Cudia's primary policy had a limit of $1,000,000 per incident and $3,000,000 aggregate. His excess policy had liability limits of $2,000,000 per incident and $2,000,000 aggregate. Toms River's primary policy had liability limits of $3,000,000 per incident and $5,000,000 aggregate. All three policies were issued by PHICO Insurance Company ("PHICO").
On February 1, 2002, the Commonwealth of Pennsylvania declared PHICO insolvent and ordered it into liquidation. As a result, PLIGA assumed responsibility for the defense of this action. N.J.S.A. 17:30A-8a(1). In this light, plaintiffs asserted a claim against PLIGA for the maximum statutory benefit of $300,000 for a covered claim under each of the three policies ($900,000). Ibid. At the onset of the litigation, PLIGA conceded that plaintiff was entitled to $300,000 under Cudia's primary policy, but disputed whether there was a covered claim under the group policy issued to Toms River and the excess policy covering Cudia.
PLIGA argued that since the primary policy provided a liability cap of $1,000,000, after the deduction of the $300,000, there still remained a $700,000 liability gap in coverage under the primary policy that remained unpaid. Thus, plaintiffs were precluded from collecting the statutory benefits under the excess policy, because the policy required that the underlying limits be paid before any obligation to pay under the excess policy attached.
The excess policy issued by PHICO to Cudia requires that the insured maintain collectible primary insurance. It is not disputed that under a section labeled "Maintenance of Underlying Coverage," the excess policy expressly conditions the extension of excess coverage upon the actual payment of the primary policy's coverage limits. The provision reads as follows:
It is a condition of this insurance that while it is in effect, the insured shall maintain in force as collectible insurance the underlying coverage shown in the Schedule of Underlying Coverage without reduction in limits (except for any reduction or exhaustion of any applicable aggregate limit contained therein as described under III, Limits of Liability, below) or alteration of terms and conditions. In the event the insured fails to maintain such scheduled underlying coverage as required or fails to comply with any condition of the underlying coverage subsequent to loss under such coverage and such failure in itself results in failure of the insured to recover under such underlying coverage, or in the event of the inability of the underlying coverage provider to pay by reason of bankruptcy or insolvency, this insurance shall apply as though such underlying coverage was in force and collectible, but only after the amounts set forth in the limits of underlying coverage have been paid. If limits of insurance available under the scheduled underlying coverage or coverages *56 are increased, this insurance shall apply as excess of such increased limits.[2]
[Fourth emphasis added.]
On or about August 3, 2004, the parties entered into a stipulation of settlement, through which plaintiffs agreed to accept that PLIGA would pay "whatever sum is judicially determined to be the maximum that the plaintiffs could have possibly recovered from the Fund in the event of a successful jury verdict in this matter against Dr. Cudia and Toms River OB/GYN Associates (on a respondeat superior theory based on Dr. Cudia's conduct)." (Emphasis added.) In exchange, plaintiffs agreed to release Cudia and Toms River from any further liability, and expressly abandoned the right to seek any financial contribution from them toward the settlement. PLIGA agreed to pay $300,000 pursuant to the primary policy. The parties further stipulated to submit to the court, on motion for summary judgment, the issue of whether plaintiffs had a "covered claim" under the excess policy or the Toms River policy.
On the return date of the cross-motions for summary judgment, PLIGA reiterated its position that, under the terms of the excess policy, plaintiffs had not presented a "covered claim." Plaintiffs argued that PLIGA was obligated to extend coverage under the excess policy, because PHICO's insolvency made the provision requiring actual payment of the limits of the primary policy a nullity. Plaintiffs also maintained that it would be against public policy to permit an excess insurer to eliminate liability simply because the primary insurer becomes insolvent.
The trial court issued a memorandum of decision rejecting PLIGA's argument, and determining that plaintiffs had presented covered claims under all three policies. Thus, based on the terms of the settlement agreement, PLIGA was obligated to pay plaintiffs a total of $900,000, or $300,000 for each claim. According to the trial court, PLIGA's position would subvert the intent and purpose expressed in the Act, because it would render the excess policy coverage unavailable when the primary insurer is insolvent, "unless the insured voluntarily pays a sum of money equal to the limitations found in the excess policy." (Emphasis added).[3]
II
A
Standard of Review
We begin our analysis of the legal issues by reaffirming a rudimentary principle of appellate review. In reviewing a matter on summary judgment, we will apply the same standards applicable in the trial court. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536-37, 666 A.2d 146 (1995); Prudential Property & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167, 704 A.2d 597 (App.Div.) certif. denied, 154 N.J. 608, 713 A.2d 499 (1998); R. 4:46-2(c). Here, because the judgment presented for our review involved purely legal determinations, *57 we owe no special deference to the trial court's analysis and ultimate legal conclusions. State v. Harris, 181 N.J. 391, 419, 859 A.2d 364 (2004), cert. denied, ___ U.S. ___, 125 S.Ct. 2973, 162 L.Ed.2d 898 (2005).
B
PLIGA's STATUTORY MISSION
In adopting N.J.S.A. 17:30A-1 to -20, known as the New Jersey Property-Liability Insurance Guaranty Association Act (the "Act"), the Legislature created a non-profit association that provides limited benefits and protection to both insureds and claimants when a licensed insurance company becomes insolvent. N.J.S.A. 17:30A-1, 17:30A-6: ARCNET Architects, Inc. v. N.J. Prop.-Liab. Ins. Guar. Ass'n, 377 N.J.Super. 102, 105, 871 A.2d 728 (App.Div.2005). The purpose of the Act is to "provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay [of] payment, to minimize financial loss to claimants or policyholders because of the insolvency of an insurer...." N.J.S.A. 17:30A-2a (emphasis added); Carpenter Tech. Corp. v. Admiral Ins. Co., 172 N.J. 504, 515, 800 A.2d 54 (2002).
The Legislature expressly indicated that "[t]his act shall be liberally construed to effect the purpose under section 2 which shall constitute an aid and guide to interpretation." N.J.S.A. 17:30A-4(a)(footnote omitted). "PLIGA manages and administers claims against an insolvent insurer" and is "obligated to the extent of the covered claims against an insolvent insurer incurred prior to or 90 days after the determination of insolvency...." ARCNET Architects, Inc., supra, 377 N.J.Super. at 105, 871 A.2d 728 (quoting N.J.S.A. 17:30A-8a(1)).
PLIGA is "deemed the insurer to the extent of its obligations on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent." Id. at 105-06, 871 A.2d 728 (quoting N.J.S.A. 17:30A-8a(2)). Its obligation is limited to the payment of covered claims, and it is not "a panacea for all problems caused by insurance company insolvencies." Carpenter Tech. Corp., supra, 172 N.J. at 524, 800 A.2d 54. It was not designed "as a form of reinsurance for every insurer who becomes insolvent." Id. at 524-25, 800 A.2d 54 (quoting Palmer v. Montana Ins. Guar. Ass'n, 239 Mont. 78, 82, 779 P.2d 61 (1989)).
The Act defines "covered claim" as "an unpaid claim ... which arises out of and is within the coverage, and not in excess of the applicable limits of an insurance policy to which this act applies, issued by an insurer, if such insurer becomes an insolvent insurer" and if the claimant is a New Jersey resident or raises property damage claims regarding property permanently located in New Jersey. N.J.S.A. 17:30A-5.
PLIGA's obligation is limited to "that amount of each covered claim which is less than $300,000.00 per claimant" or the limits set by the policy. N.J.S.A. 17:30A-8a(1). Its obligation to defend an insured "cease[s] upon the association's payment or tender of an amount equal to the lesser of the association's covered claim statutory limit or the applicable policy limit." N.J.S.A. 17:30A-8a(1).
C
COVERED CLAIMS UNDER THE EXCESS POLICY
We begin our examination of PLIGA's liability for excess coverage by looking at the relevant provision of the PHICO policy purchased by Cudia. As noted earlier, the *58 policy expressly conditions the extension of excess coverage upon the insured (Cudia) maintaining primary coverage in the amount of one million dollars. The policy also sets out the coverage obligations in the event the primary carrier becomes insolvent.
[I]n the event of the inability of the underlying coverage provider to pay by reason of bankruptcy or insolvency, this insurance shall apply as though such underlying coverage was in force and collectible, but only after the amounts set forth in the limits of underlying coverage have been paid.
[Emphasis added.]
Here, after PHICO's insolvency, PLIGA assumed its statutory obligation under the primary policy, and paid the statutory maximum coverage of $300,000. This created a $700,000 coverage-gap in the primary policy, i.e., the difference between the policy's $1 million coverage, and PLIGA's payment of its statutory maximum. Under the clear, unambiguous terms of the excess coverage provision, PLIGA, as the successor of PHICO's excess policy, is statutorily entitled to assert the defense contained in the "coverage-trigger," because "the amounts set forth in the limits of underlying coverage have [not] been paid." N.J.S.A. 17:30A-8a(2).
Plaintiffs argue that, as a matter of public policy, we should reject an interpretation of the excess coverage provision that, under different facts, permits a financially healthy insurer to escape from its coverage obligation, while PLIGA, a public entity established to serve as the fund of last resort, remains liable.[4] The scenario contemplated by plaintiffs involves an insolvent primary insurer, and a solvent excess carrier, providing the same coverage offered by PHICO here. Under these proposed facts, PLIGA would be substituted for the insolvent insurer, and hence assume responsibility, up to its statutory maximum, for the primary carrier's obligation. The solvent excess carrier would not have any coverage responsibility, because the balance of the primary coverage had not been paid.
On their face, these hypothetical facts do present a disconcerting incongruity. PLIGA, the entity created by the Legislature to manage the public fund of last resort, would be legally compelled to pay. By contrast, the for-profit insurance company would be able to walk away, without incurring any obligation. To compound the problem, the two innocent parties in this scenario: plaintiff, as the victim of the tort; and defendant, as the individual who dutifully paid his/her insurance premium to avoid this precise financial risk, are left to carry the burden.
In cases such as this one, where the injuries to the minor plaintiff are permanent and catastrophic, PLIGA's statutory maximum coverage of $300,000 is grossly inadequate to provide meaningful, long-term care for this injured child. Practically, these funds will be significantly consumed by the legal expenses incurred in the prosecution of the claim. Conversely, from the tortfeasor's perspective, the very real prospect of financial ruination flowing from a single, although albeit, serious professional misjudgment, can be disastrous, and perhaps even deter others similarly *59 situated from pursuing a professional calling that carries this type of risk.
Thus, plaintiffs argue, sound public policy demands that we construe the so-called "payment in full" trigger of coverage in the excess policy satisfied, when PLIGA pays its statutory maximum obligation under the primary policy. We are not wholly unsympathetic to plaintiffs' argument. We cannot overlook, however, that plaintiffs negotiated and agreed to a settlement agreement that intentionally excluded from the discussion the tortfeasor's ability to personally compensate plaintiffs for any monetary damages beyond PLIGA's statutory maximum.
The reasons for plaintiffs' decision to structure the settlement agreement in this fashion are not disclosed in the record. During oral argument before this court, counsel for plaintiffs indicated that his decision to exempt Cudia from contributing to his clients' recovery, was guided by his own research on the matter. We note that at the time the settlement agreement was struck, there was only one reported decision on the question of personal liability of the tortfeasor beyond the amount covered by PLIGA. In Flaherty v. Safran, 367 N.J.Super. 565, 571, 843 A.2d 1198 (Law Div.2003), overruled by Johnson, supra, 376 N.J.Super. at 223, 869 A.2d 964, the court held that a defendant tortfeasor is not personally responsible for the amount in excess of PLIGA's statutory maximum, but less than the policy limits originally issued by the insolvent carrier.
Flaherty was expressly overruled by Johnson, supra, 376 N.J.Super. at 223, 869 A.2d 964. Writing for the panel in Johnson, Judge Skillman emphasized that:
The basic policy of our law is to allow an injured party to recover the full amount of his or her damages from the tortfeasor. Thus, if a plaintiff's damages exceed the tortfeasor's insurance coverage, the tortfeasor remains personally liable for the excess. Moreover, in furtherance of this policy, statutes mandating insurance coverage are liberally construed to provide the broadest possible protection to injured parties.
In view of our State's strong public policy of affording injured parties an opportunity to recover the full amount of their damages, we believe that if the Legislature had intended to immunize tortfeasors from liability for damages in excess of [PILGA's] $300,000 maximum liability, it would have included a provision in the Guaranty Act expressly stating this intent. The general statement of a legislative purpose "to minimize financial loss to claimants or policyholders because of the insolvency of an insurer," N.J.S.A. 17:30A-2(a), cannot reasonably be construed as an expression of legislative intent to favor policyholders over claimants by immunizing policyholders from liability for damages in excess of [PLIGA's] $300,000 maximum liability. Where either an innocent injured party or a tortfeasor must bear the adverse financial consequences of the insolvency of the tortfeasor's insurer and the $300,000 limit on [PLIGA's] liability, it is more reasonable to infer a legislative intent to favor the injured party. This conclusion is reinforced by the fact that, without enactment of the Guaranty Act, the holder of an insurance policy with an insolvent insurer would have been personally liable for the full amount of any damages caused by the policyholder's tortious conduct.
[Id. at 219-20, 869 A.2d 964.] (citations omitted).
In this light, but for the settlement agreement, Cudia would have been personally liable for any damages beyond PLIGA's payment of its statutory maximum under the primary policy, at least up to the *60 limits of that policy. The record here is devoid of any information concerning Cudia's personal financial worth. We do not know if plaintiffs engaged in any pre-judgment discovery as to Cudia's assets, or investigated his future income potential as a physician. We are left only with the impenetrable protection provided by the settlement agreement.
Based on these facts, we do not address here whether our holding would be different, if a plaintiff provided a clear record that he/she had exhausted all reasonable means to collect against a judgment-proof tortfeasor. In such a case, the remedy may lie in treating a plaintiff's docketed judgment against the tortfeasor for the full amount of the "coverage-gap" (the difference between the limits of the primary coverage and PLIGA's payment of its statutory maximum) as the functional equivalent of actual payment, thus triggering coverage under the excess policy.
Despite plaintiffs' well-founded concerns, our function here is to interpret the contract of insurance before us, using long-established tools of construction, not to rewrite the contract by imposing our own notions of public policy by judicial fiat. It is well-settled that the insured bears the burden of establishing that a claim lies within the policy's scope of coverage. F.S. v. L.D., 362 N.J.Super. 161, 166, 827 A.2d 335 (App.Div.2003); Sears Roebuck and Co. v. Nat'l Union Fire Ins. Co., 340 N.J.Super. 223, 234, 774 A.2d 526 (App. Div.), certif. denied, 169 N.J. 608, 782 A.2d 426 (2001). See also Cobra Prods., Inc. v. Fed. Ins. Co., 317 N.J.Super. 392, 401, 722 A.2d 545 (App.Div.1998), certif. denied, 160 N.J. 89, 733 A.2d 494 (1999). Furthermore, if the terms delineating coverage are clear and unambiguous, they must be enforced as written. United States Mineral Prods. Co., v. Am. Ins. Co., 348 N.J.Super. 526, 538-39, 792 A.2d 500 (App.Div.2002).
Here, there is no question that the language used to describe the "coverage-trigger" clearly communicates that, as condition of coverage under the excess policy, the limits of the underlying primary policy must be paid. Because the settlement reached by the parties leaves a coverage-gap between the limits of the primary policy and PLIGA's statutory maximum, there is no enforceable coverage under the excess policy.
Reversed.
NOTES
[1] We use the term "coverage-trigger" in the same manner the Supreme Court used the term "trigger of coverage" in Owens-Illinois v. United Ins. Co., 138 N.J. 437, 441, 650 A.2d 974 (1994), meaning "a shorthand expression for identifying the events that must occur during a policy period to require coverage for losses sustained by the policyholder."
[2] In the course of oral argument, we requested PLIGA's counsel to advise us, through a supplemental post-argument submission, whether the specific coverage language contained in the excess policy had been filed with, or otherwise reviewed or approved by the Commissioner of Insurance. In response, counsel has advised us that as result of the Commercial Insurance Deregulation Act of 1982, N.J.S.A. 17:29AA-1 to -32, excess insurance polices are no longer required to be filed with the Commissioner of Insurance. See N.J.S.A. 17:17:29AA-3(k).
[3] The trial court held that plaintiffs had a covered claim under the Toms River policy. Although PLIGA argued against this ruling at the trial level, it did not appeal the judgment as to this issue.
[4] Plaintiffs also rely on an unpublished appellate court opinion from the State of Ohio. Rushdan v. Baringer, 2001 WL 1002255, 2001 Ohio App. LEXIS 3827 (Ohio Ct.App.2001). Confronted with facts similar to this case, and construing a statute containing the same provisions as the New Jersey Guaranty Act, the Ohio appellate court compelled their fund of last resort to pay excess coverage. We decline to follow the reasoning of this unpublished opinion from a sister state. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263069/ | 31 Cal.App.4th 726 (1995)
37 Cal. Rptr.2d 389
LOS ANGELES NATIONAL BANK, Plaintiff and Respondent,
v.
BANK OF CANTON OF CALIFORNIA, Defendant and Appellant.
Docket No. B069835.
Court of Appeals of California, Second District, Division Four.
January 19, 1995.
*729 COUNSEL
White & Case, John A. Sturgeon, James R. Cairns and Matthew P. Lewis for Defendant and Appellant.
Suzuki & Ito and Ronald N. Ito for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
HASTINGS, J.
This appeal involves the construction and applicability of California Uniform Commercial Code section 4302[1] which requires a bank to give notice of dishonor or refusal to pay a check by midnight of the day following receipt of the check, otherwise known as the "midnight deadline" rule. Here, over $2 million in losses were sustained when two individuals, Tony Lam and Peter Wong, cashed twenty-eight worthless checks written on an account issued by appellant, Bank of Canton of California (BOC), over a period of three days at the Monterey Park branch office of respondent Los Angeles National Bank (LANB). The main issue presented is which bank should bear the loss.
Summary judgment was granted in favor of LANB based upon BOC's failure to meet the midnight deadline. A subsequent motion for new trial by BOC was denied. BOC appeals. We affirm the judgment.
*730 PROCEDURAL AND FACTUAL BACKGROUND
1. The check kiting scheme
Lam and Wong were principals at Golden Fields Leasing Company, Inc. (Golden Fields), and had established a checking account at BOC in Golden Fields's name. They had also established a banking relationship with LANB and were familiar with one of its tellers, Mrs. Au. During a three-day period in January 1986, Lam and Wong went to LANB and cashed three different batches of checks written on their BOC Golden Fields account.[2] Mrs. Au, who handled the transactions, did not verify whether there were sufficient funds in the Golden Fields account at BOC before giving Lam and Wong the cash, cashier's checks and credit that they requested for the 28 checks.[3]
On Monday, January 27, 1986, two days after cashing the last batch of checks for Lam and Wong, Mrs. Au spoke with two tellers at BOC, who informed her that there were, at that time, no funds in the Golden Fields account and that the checks would be returned. Mrs. Au then informed her branch manager, who unsuccessfully attempted to locate Lam and Wong and discovered their place of business had been vacated.
LANB processed the checks in the usual manner, as prescribed by the California Uniform Commercial Code, which involved depositing them at a clearing house, the Federal Reserve Bank (the Federal Reserve). The Federal Reserve made a provisional settlement to LANB's account for the checks, and presented the checks to BOC for final payment. At that point, BOC was required to pay the checks or notify LANB by midnight of the following banking day that it would not honor them. (§ 4302.) In this instance, it was alleged by LANB that BOC did not notify LANB or return any of the 28 checks to LANB until after the midnight deadline had passed. LANB filed an action against BOC to recover the face amount of the checks, and for conversion.
2. Procedural History
LANB filed its complaint against BOC in September 1986. Almost three years later, in April 1989, both parties filed summary judgment motions. The trial court granted BOC's motion for summary judgment and LANB appealed.
*731 On appeal, the summary judgment in favor of BOC was reversed and the matter was remanded to the trial court in a published opinion filed in May 1991. (Los Angeles Nat. Bank v. Bank of Canton (1991) 229 Cal. App.3d 1267 [280 Cal. Rptr. 831], hereinafter referred to as LANB I.)[4] In December 1991, the trial court held a status conference to discuss the effect of the appeal. It set a hearing date of March 9, 1992, for a further motion for summary judgment and discovery was reopened. BOC propounded further discovery to LANB.
In February 1992, LANB filed a motion for summary judgment setting it for hearing on the reserved March date. BOC filed motions to compel discovery and requested a continuance of the scheduled motion for summary judgment. BOC also simultaneously filed a motion for leave to file a cross-complaint and an amended answer adding new affirmative defenses.
The trial court denied BOC's motions and granted summary judgment in favor of LANB. This appeal followed.
3. The checks
For ease of discussion, we shall refer to the checks in three groups, A, B, and C, based upon the days they were cashed at LANB.[5]
Group A.
Group A consisted of three checks totaling $900,000. Those checks were cashed at LANB on Thursday, January 23, 1986. On Friday, January 24, 1986, they were delivered to and processed by the Federal Reserve, and made available for pickup by BOC by at least 2 p.m. that day. BOC used Decimus Corporation to process the checks. Procedurally, the Federal Reserve notified BOC or Decimus that the checks were available. Decimus would then arrange for pickup, process them and forward them to BOC. The time period to calculate the midnight deadline began running when the checks were made available to Decimus. (LANB I, supra, 229 Cal. App.3d at p. 1280.) Check group A was not returned by BOC to LANB until Tuesday, January 28, 1986.
Group B.
Group B consisted of 17 checks totalling $1,091,520. The checks were cashed at LANB on Friday, January 24, 1986. They were delivered to and *732 processed by the Federal Reserve on Monday, January 27, 1986, and made available for pickup by 2 p.m. that day. Check group B was not returned by BOC to LANB until Wednesday January 29, 1986.
Group C.
Group C consisted of eight checks totalling $266,445. The checks were cashed at LANB on Saturday, January 25, 1986. The checks were delivered to and processed by the Federal Reserve on Tuesday, January 28, 1986, and were made available for pickup by 2 p.m. that day. Check group C was not returned by BOC to LANB until Thursday, January 30, 1986.
4. The summary judgment motion
LANB's summary judgment motion was based on the following factual scenario and argument: (1) that the midnight deadline was calculated from the time that the checks were made available for pickup by the Federal Reserve; (2) that BOC had contracted to have its checks processed by Decimus Corporation; (3) that Decimus Corporation had contracted its messenger services to U.S. Courier Corporation and had directed its schedule; (4) that U.S. Courier had followed normal procedure, as directed by Decimus, on the days in question in picking checks up from the Federal Reserve and delivering them to Decimus for processing; (5) that Decimus had followed normal procedure, as directed by BOC; (6) that the Federal Reserve made BOC's checks available for pickup at approximately noon each day; (7) that U.S. Courier had picked up the BOC checks each day from the Federal Reserve at approximately 5 p.m.; (8) that the BOC checks arrived at Decimus at approximately 7 p.m. the same day they were picked up; (9) that Decimus would then hold that day's delivery of checks overnight and process them the next morning; (10) that BOC would receive the checks that same morning and would return any items in dispute; and (11) since BOC did not return those checks until two banking days after they had been made available by the Federal Reserve, BOC did not comply with the midnight deadline for returning any of the checks.
LANB supported this scenario with deposition testimony from BOC, the Federal Reserve, U.S. Courier and LANB employees, some of whom had personally researched each of the checks in question.
BOC's opposition to the summary judgment motion was based primarily on the following argument: (1) that the midnight deadline does not begin to run when the Federal Reserve makes the checks available for pickup, but, *733 instead, when the payor bank, that is, BOC, actually receives the checks or receives notice that the checks are ready for pickup; (2) that pursuant to section 4108, a "banking day" ends at 2 p.m.; (3) that BOC (through U.S. Courier) did not receive the checks until after 2 p.m.; and (4) that therefore, there was a disputed issue of fact as to whether the midnight deadline had passed when it returned the checks to the Federal Reserve. It also argued that the "notice of dishonor" required to be given by the midnight deadline was given on January 27, 1986, when BOC's personnel orally notified Mrs. Au that there were no funds in the Golden Fields account to pay the checks she had cashed. In addition, BOC argued that LANB's conduct in cashing the checks in violation of banking regulations and without first verifying whether funds were available barred it from asserting the midnight deadline rule violation. It also attacked the midnight deadline rule on the ground that it was unconstitutional.[6]
5. The trial court's rulings
The trial court denied BOC's motion to continue the summary judgment hearing and granted LANB's motion for summary judgment. The clerk's minute order indicated that the trial court based its ruling on its reading of our decision in LANB I, which "comes out very squarely for a literal sort of `strict liability' reading of the California Uniform Commercial Code section 4302 and takes the issue of causation ... off the table."[7]
The court then placed the motion to amend the pleadings and the motion to compel discovery off calendar.
CONTENTIONS ON APPEAL
On appeal, BOC contends that the trial court erred in denying its motions to continue and amend its pleadings. It also contends that the court erred in granting summary judgment in favor of LANB because there was a triable issue of material fact as to whether the midnight deadline was met, and that the court erroneously interpreted section 4302 as requiring written notice of dishonor. Finally, it contends that the trial court erred in allowing LANB prejudgment interest at the rate of 10 percent instead of the 7 percent rate required for noncontractual liability.
*734 DISCUSSION
I. The trial court did not err in granting the motion for summary judgment.
A. No triable issue of fact was raised as to the midnight deadline.
BOC contends that the declarations and other evidence submitted in opposition to LANB's summary judgment motion raised triable issues of material fact and therefore summary judgment should not have been granted. Its principal claim is that there was no proof that the checks were made available to be picked up before 2 p.m. from the Federal Reserve on each of the days in question and, therefore, the return of the checks was timely.
LANB's proof of when the checks were available for pickup by BOC was based primarily on the declaration of John Kimball, the associate general counsel for the Federal Reserve who had participated in drafting the Federal Reserve's rules and regulations. Kimball relied principally on a Federal Reserve operating manual entitled "Collection of Cash Items Circular 1" (hereafter Circular 1) which indicated, inter alia, that "[a] paying bank [BOC] may also pick up cash items at [the Federal Reserve] by arrangement with us. The person to whom delivery is made as requested or who picks up the items is considered to be the paying bank's agent. Delivery and presentment of the items occur at the time the items are delivered to the off-premise location or are made available for pickup as arranged." (Italics added.)
According to Kimball, these provisions of Circular 1 provided that if a payor bank had made arrangements for the items to be picked up from the Federal Reserve by a messenger service and brought to an independent check processing service, the midnight deadline would begin to run from the time the checks were made available for pickup from the Federal Reserve and not when they were actually picked up by the messenger. He explained in deposition testimony, "The purpose of this language was to have presentment and delivery occur when the checks were made available for pickup regardless of whether they were picked up at that time. Or, for that matter, regardless of whether they were picked up that day. Because that was not within the control of the Reserve bank. [¶] ... [¶] Whether the agent actually processed the checks right away or later was not within the control of the Reserve Bank, and therefore the burden, or the responsibility for prompt processing any return was put on the paying bank."
According to Kimball, absent a special agreement, checks would ordinarily be made available by the Federal Reserve by 2 p.m., the close of the banking day.
*735 Another Federal Reserve employee, Bradley Snodgrass, the officer in charge of payment services, testified in a deposition that the Federal Reserve does not keep a log of pickups by each bank's courier but does record on a form how many boxes are sent to each bank. Often, but not always, the form will indicate what time the pickup was made. Snodgrass testified that he personally reviewed the 28 checks in question. The three checks in group A had endorsement stamps indicating that they were presented to the Federal Reserve by LANB on January 23, 1986, and were subsequently presented to the BOC on January 24, 1986. Snodgrass indicated that if the checks had not been made available to the BOC by 2 p.m. on January 24, the endorsement stamp would not have reflected that date. The items were returned for insufficient funds after 6 p.m. on January 28, 1986.
The 17 checks in check group B had endorsement stamps which indicated they were received by the Federal Reserve on January 24, were processed by the Federal Reserve on January 27, 1986, and made available for pickup by the BOC before 2 p.m. on January 27, 1986. The Federal Reserve manifest reflected that boxes were available for pickup by BOC by 11:45 a.m. BOC returned those items for insufficient funds on January 29, 1986.
The eight checks in check group C had stamps which indicated that the Federal Reserve received them on January 28, 1986. According to Snodgrass, the Federal Reserve made the checks available to the BOC courier after noon on January 28 and before 2 p.m. If the checks had not been made available until after 2 p.m., the Federal Reserve's records would not have reflected that date. The checks were returned by BOC to the Federal Reserve on January 30, 1986, after 2 p.m.
The deposition testimony of Thomas Bednar, the Federal Reserve supervisor for returned items, indicated that he had reviewed and researched the checks in question. Based upon his research, he determined that the checks in group A had been made available by the Federal Reserve for pickup by the courier at approximately noon on January 24, 1986, and were returned on January 28, 1986, after 2 p.m. His research indicated that the checks in group B were made available by the Federal Reserve for pick at 11:45 a.m. on January 27, 1986, but were not returned until after 2 p.m. on January 29, 1986.[8] The checks in group C were made available for pick up at approximately noon on January 28, 1986, and were not returned until after 2 p.m. on January 30, 1986.
The deposition testimony of Gary Farnam, the manager of operations for Decimus Corporation, and Al J. Fairman, the manager of customer service *736 and facilities for Decimus, established that U.S. Courier would pick up BOC's checks from the Federal Reserve in the afternoon or early evening, sometime between 2 p.m. and 7 p.m. The courier would then bring the checks directly to Decimus, where they would be held until the following morning for processing.
The deposition testimony of John Ficht, the chief operating officer of U.S. Courier, and John Morgan, the operations manager for Decimus, established that according to the schedule prescribed by Decimus, BOC checks were scheduled to be picked up at 6 p.m. from the Federal Reserve. The checks would then be delivered to Decimus no later than 7 p.m. The records of U.S. Courier indicated that on January 24, 27, and 28, 1986, the pickups were made at their normal time.
The deposition testimony of Christine Sun, a BOC bookkeeper, established that Decimus used U.S. Courier Corporation as a messenger. Ordinarily a courier would pick up checks from Decimus at 7:30 a.m. for delivery to BOC. At approximately 8 a.m. that same day, Sun would process those checks and return any of those checks which would not be paid for insufficient funds.
BOC's opposition, directed to whether the checks were made available by 2 p.m. on each of the days in question, was supported principally by the declaration of an expert witness, Lee Gunderson. Mr. Gunderson had several years of experience in the banking industry and was an independent consultant to financial institutions. He had previously served as a bank president, a director of a savings and loan, and president of a bankers' professional association. Gunderson based his opinions on the following, "I have had extensive direct, hands-on experience within the U.S. banking industry; I am personally familiar with customary practices and usages among banks that employ various clearinghouses that clear checks. I am aware of how UCC Article 4 procedures operate, how they are understood within the relevant industry, how custom and practice fills in ambiguities and interstices within the statutory and regulatory format relevant for Article 4 purposes, particularly insofar as check processing operates. I am familiar with ... all documents promulgated by the Federal Reserve. I am also familiar with clearinghouse procedures employed by private check clearinghouses." Gunderson's opinion was that Circular 1 did not apply to the situation at hand, but that section 4104, subdivision (h) and the federal regulations issued by the Federal Reserve Board (12 C.F.R. § 229.36 (1994)), as well as industry-wide business practices dictated that actual physical receipt by a bank's processing agent, in this case, Decimus, commences the start of the midnight *737 deadline rule. He noted that the Federal Reserve never operated precisely on schedule and that the noon target for pickup was frequently not met.
Gunderson opined that oral notice of dishonor is sufficient for purposes of the Commercial Code midnight deadline rule. He also opined that the fraud, illegal actions, and negligence of LANB would be a complete defense to a violation of the midnight deadline rule, referring to industry-wide understanding and to proposed amendments to the Commercial Code then pending in the Legislature.
BOC also offered evidence in opposition that the Federal Reserve had written a letter to BOC indicating that it had processing difficulties during the week of January 22, 1986, which caused some checks to be dispatched late. In addition, BOC submitted the deposition testimony from a check processor that pickups from the Federal Reserve may sometimes be late because of computer malfunctions.[9]
(1) Even construing LANB's evidentiary support strictly and BOC's support liberally as we are required to do in reviewing a grant of summary judgment (Code Civ. Proc., § 437c; Oswald Machine & Equipment Inc. v. Yip (1992) 10 Cal. App.4th 1238, 1243 [13 Cal. Rptr.2d 193]; Saldana v. Globe-Weis Systems Co. (1991) 233 Cal. App.3d 1505 [285 Cal. Rptr. 385]), BOC has not raised a triable issue with respect to the time the checks were made available for pickup from the Federal Reserve.[10]
Neither Gunderson nor Garcia had personally reviewed the checks in question as had the Federal Reserve and Decimus employees, and could not specifically point to any breakdown in operations on the dates in question. The evidence submitted by BOC merely established a basis for speculation and was not sufficient to challenge the evidence presented by LANB that each batch of checks was made available by 2 p.m. of the day in question. We conclude no material triable issue of fact existed on this issue. (See Barrett v. Atlas Powder Co. (1978) 86 Cal. App.3d 560, 564-567 [150 Cal. Rptr. 339]; Craig Corp. v. County of Los Angeles (1975) 51 Cal. App.3d 909, 915 [124 Cal. Rptr. 621].)
*738 B. Summary judgment was proper as a matter of law.
Crucial to our discussion of the construction of section 4302 is a discussion of our published opinion relating to the initial summary judgment motions by the parties. In LANB I, supra, 229 Cal. App.3d 1267, we reviewed case law from numerous other jurisdictions which followed the Uniform Commercial Code midnight deadline rule and concluded that "the rule of strict liability afforded by section 4302 does displace the defense that appellant's own negligence caused its loss." (Id. at p. 1278.) We noted that "`the UCC, however, for the most part does not look at actual fault.... Instead, it places responsibility on the party which ordinarily would be in the best position to prevent the loss.... Such a result accomplishes two purposes: first, it increases the efficiency and fraud-resistance of the banking system by placing upon those best able to guard against it the responsibility for preventing fraud ..., and, second, it speeds the resolution of disputes by establishing clear rules of liability which do not depend heavily upon the specific facts of individual instances of fraud....'" (Ibid., fns. and citations omitted.)
In LANB I, BOC raised two issues which must be reviewed before we continue with this case. (2) First, BOC argued that LANB needed to prove that it relied upon BOC's failure to give notice before the midnight deadline before LANB could prove it was damaged. BOC relied upon two cases for this proposition: United States Fid. & Guar. v. Federal Reserve Bank (S.D.N.Y. 1985) 620 F. Supp. 361; and United States Fid. v. Fed. Reserve Bank (S.D.N.Y. 1984) 590 F. Supp. 486. Secondly, BOC argued that on January 27, 1986, Ms. Au was given verbal notice that there were insufficient funds in the BOC account to cover the checks and that BOC would return the checks.
We reviewed the cases cited by BOC and the evidence presented and concluded as follows: "In the present case, by contrast [to the two cases cited by BOC], there is no evidence [LANB] had learned before releasing the funds that there was no money in the account of Golden Fields Leasing Company, Inc., and the evidence is disputed as to exactly when [LANB] learned there were insufficient funds to cover the amounts of the various checks. Although [BOC] asserts [LANB] learned on January 27, 1986, through oral communication from [BOC's] employees that there were insufficient funds in the account and that [BOC] would not honor any other checks drawn on that account, [LANB] provided evidence [BOC] did not inform [LANB] that any further checks submitted would be dishonored. [¶] In addition, despite whatever [BOC] communicated to Ms. Pou San Au, it *739 has not been clearly established that [BOC's] oral notification satisfied the statutory definition of `notice of dishonor.' Section 4302 provides that a payor bank either must return the item or `send notice of dishonor' prior to expiration of its midnight deadline. It is obvious from the wording of the statute that written notice is contemplated. We reject the conclusion urged by [BOC] that [LANB] must establish that it relied upon [BOC's] failure to transmit `notice of dishonor' before the midnight deadline in order to recover for breach of the liability created by section 4302 where, as here, [LANB] had no knowledge, at the time the checks were deposited or funds were released, that the checks were uncollectible." (LANB I, supra, 229 Cal. App.3d at p. 1280, italics in original.)
Because the matter was before us in the context of summary judgment, we indicated that "[t]he parties remain free to develop additional evidence at trial which might enable them to renew the arguments raised before this court." (229 Cal. App.3d at pp. 1280-1281.)
1. The items were received by BOC when the Federal Reserve made them available.
(3) As previously indicated, BOC contends that the midnight deadline did not begin to run until it actually received the checks and not when the Federal Reserve made the checks available for pickup. This argument was based on the opinion of Gunderson in interpreting the Uniform Commercial Code and Federal Reserve practices. This is a legal issue, therefore, it was proper for the trial court to resolve this portion of the motion as a matter of law. (C.L. Smith Co. v. Roger Ducharme, Inc. (1977) 65 Cal. App.3d 735, 743 [135 Cal. Rptr. 483].)
In LANB I, we held that Decimus Corporation was BOC's agent for receipt. "Were we to conclude otherwise, a payor bank always could avoid the operation of section 4302 by interposing such an entity for receipt of items from the presenting bank, and that entity indefinitely could delay the final disposition of an item, thus defeating the protection sought to be afforded by imposing strict deadlines for final payment or `dishonor.'" (229 Cal. App.3d at p. 1280.)
Here, BOC raises the further contention that availability for pickup by the Federal Reserve does not constitute "receipt" by BOC such that the midnight deadline rule begins to run. For reasons similar to those first quoted from LANB I, we find this contention to be without merit. The purpose of the midnight deadline rule is to ensure prompt notification. If the midnight deadline rule did not begin to run until a bank or its agent actually decided *740 to pick up the checks from the Federal Reserve, a bank might delay the midnight deadline indefinitely, thereby "defeating the protection sought to be afforded by imposing strict deadlines for final payment or `dishonor.'" (LANB I, supra, 229 Cal. App.3d at p. 1280.)
2. The midnight deadline was not met when BOC's tellers orally informed Mrs. Au that the Golden Fields account did not have any funds.
(4) BOC renews its argument from LANB I that LANB received notice of dishonor of the checks by virtue of Mrs. Au's conversation with the BOC tellers. In LANB I, we did not directly rule on the issue but we noted that: "It is obvious from the wording of the statute [section 4302] that written notice is contemplated." (229 Cal. App.3d at p. 1280.)
In keeping with the objectives of certainty and finality in bank operations (see SOS Oil v. Norstar Bank of Long Island (1990) 76 N.Y.2d 561 [561 N.Y.S.2d 887, 892, 563 N.E.2d 258]), we find no compelling reason for finding that the oral notice was sufficient to qualify as the notice required in section 4302.
First of all, as we noted in LANB I, we rejected an argument by BOC that reliance was necessary in order for LANB to prevail. In that connection, BOC argued oral notice was given by its tellers before the checks were received at BOC. The key to our ruling was that the discussion between Ms. Au and the tellers at BOC did not occur until after LANB had made payments out of the account. This was in contrast to the case of United States Fid. & Guar. v. Federal Reserve Bank, supra, 620 F. Supp. at page 373, where there had been oral notice to the depository bank of an intent to dishonor before the bank paid out the proceeds to the check kiters. There is no doubt but that LANB may have been at fault in some degree for making early payments, but that is another issue which we discuss later in this opinion. Therefore, to the extent that BOC is arguing oral notice was sufficient either to estop LANB from claiming return of the proceeds or lack of reliance, LANB I disposes of the argument.
BOC cites to section 3508 which defines "notice of dishonor" as notice "given in any reasonable manner" and that "[i]t may be oral or written and in any terms which identify the instrument and state that it has been dishonored." (Italics added.) This apparent conflict between "oral" notice in section 3508 and "written" notice in section 4302 was considered by the Michigan court of appeals in Mut. Sav. & Loan v. Nat. Bank of Detroit (1990) 185 Mich. App. 591 [462 N.W.2d 797], which noted that the Uniform Commercial Code's definition of "send," that is, "to deposit in the mail or deliver for transmission" (§ 1201, subd. (38)) necessarily implies a written instrument, and that *741 the Uniform Commercial Code section 4102 provides that in the event of a conflict between the provisions of article 4 and article 3, the provisions of article 4 govern. (462 N.W.2d at p. 799.) Therefore, written notice is required and it was not timely given in this case.[11]
3. Strict Liability
(5) BOC contends that by virtue of LANB's own actions, it cannot escape liability for the worthless checks notwithstanding BOC's failure to meet the midnight deadline.
We addressed this issue to some extent in LANB I. We held that failure to meet the midnight deadline makes the payor bank strictly liable to the depository bank notwithstanding the fact that it may also have fault. BOC now indicates, correctly, that we reserved judgment on any further arguments to be made by the parties based upon additional evidence not then presented to the court.
In opposition to the motion for summary judgment, BOC raised a number of issues which it also sought to raise in a proposed amended answer and proposed cross-complaint. The opposition and proposed amended answer sets forth the following affirmative defenses: (1) that LANB is barred from recovery by virtue of its illegal acts, which were making loan advances (i.e., cashing the checks) in excess of statutory limits (12 U.S.C. § 84 requires that a bank must make an unsecured loan for more than 15 percent of its capital to any one customer), for failing to report the cash withdrawals by Lam and Wong to the United States Treasury, and that it "recklessly endangered the financial structure of a national bank"; (2) that the midnight deadline rule is unconstitutional; (3) that LANB engaged in a pattern of fraud by failing to check if there were adequate funds in the BOC account before cashing the checks, by making loans in excess of statutory limits, by failing to have a control system that prevented tellers from cashing checks above a stated amount; that it intentionally violated federal limits on lending funds "in order to benefit its customer at the expense of BOC"; by failing to report the cash withdrawals to the United States Treasury; (4) that LANB is estopped from invoking the violation of the midnight deadline rule by virtue of its *742 knowledge of Decimus's operations and its conduct in cashing the checks; (5) that LANB failed to state a cause of action, "since the scope and makeup of Article 4 of the Commercial Code and regulations implementing the terms thereunder do not contemplate such recovery."
BOC's cross-complaint sought restitution from LANB, Lam, Wong and Golden Fields, based upon the fraud of each of them, and a claim for recoupment based on proposed amendments to sections 3302, 3305 and 4302.[12]
On appeal, BOC primarily argues that LANB, through Ms. Au, was either actively involved in the fraud or was so careless by violation of the various statutes and regulations relating to banking practices, that LANB should not be allowed to profit from its own wrongdoing. BOC relies quite heavily upon the above amendments to the Commercial Code, especially to section 4302 which BOC claims excepts fraud from the strict liability provisions of the midnight notice requirements.[13]
In LANB I, supra, we discussed the issue of fault without any specific reference to fraud, or violation of banking statutes or regulations, but certainly in the context of comparative fault by the depository bank. While many of the cases we discussed, and some of the language we used, referenced the term negligence, it is clear that the concept of strict liability includes denial of defenses based upon a much broader scope of fault than negligence.
In adopting strict liability for commercial banking transactions, we did note the distinction between apportioning fault in tort actions and in the context of commercial banking transactions: "`In tort law courts have equated fairness with fault. The rule of comparative negligence is a perfect *743 expression of this principle. [¶] The UCC, however, was designed to facilitate commerce primarily by guiding and making predictable the consequences of behavior,' and its loss apportionment function is secondary to this primary function. ([United States Fid. & Guar. v. Federal Reserve Bank, supra, 620 F. Supp.] at p. 370; Town & Country State Bank v. First State Bank (Minn. 1984) 358 N.W.2d 387, 395.)" (LANB I, supra, 229 Cal. App.3d at p. 1278.)
More recently, in the case of Chicago Title Ins. Co. v. California Canadian Bank (1991) 1 Cal. App.4th 798 [2 Cal. Rptr.2d 422], the issue of comparative fault was revisited, not in the concept of negligence, but the payor bank argued that it should be allowed to raise the defenses of waiver, estoppel, and unclean hands, among others. (Id. at p. 809.) In addressing this argument, the court first turned to our discussion in LANB I relating to the interplay between sections 1103[14] and 4302: "`As [the Bank] suggests, section 1103 provides that general principles of law, which would include the defense that a party's own negligence caused its loss, may apply where not displaced by specific provisions of the Commercial Code. As the above cases indicate, however, the rule of strict liability afforded by section 4302 does displace the defense that [the Company's] own negligence caused its loss. In order to further the statutory objectives of certainty and finality, a bank that fails to return a check by the midnight deadline is deemed to have paid it and thus is held accountable.' [Citations.]" (Id. at p. 809, italics added and omitted.)
The court then discussed the broader concepts of estoppel, waiver, unclean hands, illegality of the underlying transactions and fraud: "It is important to bear in mind in this context that the Uniform Commercial Code is designed to banish from the law governing timely return of dishonored checks such fact-based theories of liability and defense as negligence, fault, estoppel, intentional tort, or illegality of the underlying transaction in the overriding public interest of promulgating the integrity, certainty, and finality of commercial transactions. Consequently, the Uniform Commercial Code establishes a more mechanical system, characterized by certainty and finality, and based only upon facts unlikely to be disputed in litigation such as the date stamped on a check upon its receipt, the date it was returned as dishonored, or the fact of whether the check was not readable by computer or was presented posthumously for payment. [¶] ... We are also concerned *744 that allowing the Bank to escape the consequences of its delay by indulging its claim of fault or fraud on the part of the [title insurance company], which claim is factually unrelated to the actual mechanics of the check return procedure i.e., a fraud which did not cause the Bank to miss its deadline, would begin to cause the system of reciprocal obligations underlying commercial transactions to unravel in a mass of time-consuming litigation, such as we have glimpsed in these protracted proceedings." (1 Cal. App.4th at pp. 811-812.)
Accordingly, the court rejected the bank's request for leave to amend to assert a claim for restitution, and its attempt to raise the defenses of estoppel, waiver, and unclean hands. (1 Cal. App.4th. at p. 809.)
Other state courts have also followed this rule. "[B]anking laws render a payor bank strictly liable for instruments which it fails to dishonor timely, except in certain limited circumstances, none of which exist [even when a customer's check kiting scheme is discovered by both the depositary and payor bank prior to dishonor.]" (Schwegmann Bank & Tr. v. Bank of Louisiana (La. Ct. App. 1992) 595 So.2d 1185, 1189.)
The Supreme Court of Minnesota has also observed that, "The present banking system under which an enormous number of checks are processed daily could not function effectively if banks were not required to make prompt and effective decisions on whether to pay or dishonor checks. [Citations.]" (Town & Country State Bank v. First State Bank (Minn. 1984) 358 N.W.2d 387, 395.)
It is clear, in light of the holdings in LANB I, supra, 229 Cal. App.3d 1267, and Chicago Title Ins. Co. v. California Canadian Bank, supra, 1 Cal. App.4th 798, that fraud and the other defenses attempted to be raised by BOC were irrelevant to the transactions here which occurred in 1986. After the Chicago Title case was handed down, the Legislature apparently decided that fraud should not be exempted as a defense and it adopted the amendment to section 4302.[15] Strict liability is the law relating to these transactions and the defenses raised and theories plead in the cross-complaint were irrelevant to determination of the motion for summary judgment.[16]
*745 II. The court did not err in denying the motion to continue the summary judgment hearing or the motion to add affirmative defenses.[*]
.... .... .... .... .... .... .... .
III. Prejudgment interest was incorrectly calculated.
The judgment prepared by LANB after it successfully moved for summary judgment provided for interest at the rate of 10 percent from the date the checks were cashed until paid.
The relevant section of the Civil Code regarding prejudgment interest is Civil Code section 3289, subdivision (b), which provides that, "If a contract entered into after January 1, 1986, does not stipulate a legal rate of interest, the obligation shall bear interest at a rate of 10 percent per annum after a breach." Civil Code section 3288 provides that "In an action for the breach of an obligation not arising from contract, ... interest may be given, in the discretion of the jury."
In the absence of any legislative act to the contrary, the rate of prejudgment interest is 7 percent. (Cal. Const. art. XV, § 1; Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal. App.3d 388, 434 [264 Cal. Rptr. 779].)
(6) BOC contends that the damages were based on a violation of a statute, section 4302, and were not based upon any contract with LANB, and thus the trial court erroneously ordered interest to accrue at 10 percent.
LANB argued that section 4103, subdivision (b) provides that "Federal Reserve regulations and operating circulars, clearinghouse rules, and the like, have the effect of agreements... whether or not specifically assented to by all parties interested in items handled." The trial court agreed that the nature of the transactions was contractual, based upon the checks themselves, the Federal Reserve regulations, and "the general relationship of the banks, through the clearing house system, to one another."
The case of Bank of America v. Security Pacific Nat. Bank (1972) 23 Cal. App.3d 638 [100 Cal. Rptr. 438] is instructive. There, a bank brought an action to recover funds from checks returned after the expiration of the midnight deadline. In holding that the three-year statute of limitations for actions based on statutory liability and not the four-year statute of limitations *746 for actions based on a contract applied, the court concluded: "The sight draft or demand item is no more than an instrument serving as a link in the chain establishing a cause of action and does not in itself contain any contract or term of agreement to [comply with the midnight deadline rule.]" (Id. at p. 646.) The liability was "created by statute and the action would be barred by the three-year statute of limitations pertaining to such an action. [Citation.]" (Id. at p. 644.)
Moreover, the United States Court of Appeals for the Fifth Circuit held in Union Bank of Benton, Ark. v. First Nat. Bank (5th Cir.1982) 677 F.2d 1074, 1080, damages arising from a breach of the midnight deadline rule resulted from a statutory violation, not from a breach of contract, and prejudgment interest was awarded accordingly.
Similarly here, we find the liability of BOC to LANB was caused specifically and exclusively by virtue of its failure to return the checks by the midnight deadline and that the applicable prejudgment interest rate should have been 7 percent.
DISPOSITION
The matter is remanded to the superior court for recalculation of prejudgment interest at the rate of 7 percent instead of 10 percent as to each cause of action but otherwise is affirmed. Inasmuch as this recalculation appears to be a purely ministerial act, the parties are invited to stipulate to the proper amount of prejudgment interest. Respondent LANB is awarded its costs on appeal.
Woods (A.M.), P.J., and Epstein, J., concurred.
A petition for a rehearing was denied February 17, 1995, and appellant's petition for review by the Supreme Court was denied April 13, 1995. George, J., did not participate therein.
NOTES
[*] Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.
[1] All further statutory references shall be to the California Uniform Commercial Code unless otherwise specified.
[2] The checks were made out to either Lam, Wong, Golden Fields, or LANB.
[3] Depending upon which evidence is credited, Mrs. Au either had $25,000 or $50,000 in check cashing limits. BOC suggests that Ms. Au or others at LANB may have been actively involved in the scheme to defraud BOC. We discuss the issue of fraud as a defense to the midnight deadline in part I.B.3. under DISCUSSION.
[4] For a more detailed review of the background facts, see LANB I.
[5] The facts in this section are those established by LANB, and not disputed by BOC in the motion for summary judgment at issue in this appeal. See section I.A. in the DISCUSSION, infra.
[6] BOC does not raise the constitutionality argument on appeal.
[7] It appears that oral argument was heard, but only a partial transcript of the proceedings was included in the record.
[8] Bednar based his statements for check group B on an actual manifest form signed by U.S. Courier. No manifests were available with respect to check groups A and C.
[9] The check processor, Jose Garcia, was employed by City National Bank, which processes checks for many other banks.
[10] We discuss Gunderson's legal conclusion relating to actual delivery of the items versus when the items are made available, infra, at part I.B.1. The remainder of his conclusions relating to oral notice and possible defenses are legal issues which are discussed in section I.B.2. and 3.
[11] In any event, even if we were to hold that oral notice was acceptable for purposes of the midnight deadline rule pursuant to section 3508, the oral notice relied upon here is insufficient to meet the requirements of that section. In Mrs. Au's conversations with the BOC's tellers on January 27, 1986, no specific checks or amounts were referred to. In fact, at that point, BOC had not received any of the checks written by Lam and Wong. BOC's response that the Golden Fields account did not have sufficient funds at that specific time and that the checks would not be honored is not sufficient within the terms of the statute.
[12] The amendments were ultimately adopted by the Legislature in 1992. (§§ 3302, 3305 and 4302; Stats. 1992, ch. 914, §§ 6, 38.)
[13] Section 4302 now reads: "(a) If an item is presented to and received by a payor bank, the bank is accountable for the amount of either: [¶] (1) A demand item, other than a documentary draft, whether properly payable or not, if the bank, in any case in which it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, whether or not it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline. [¶] (2) Any other properly payable item unless, within the time allowed for acceptance or payment of that item, the bank either accepts or pays the item or returns it and accompanying documents. [¶] (b) The liability of a payor bank to pay an item pursuant to subdivision (a) is subject to defenses based on breach of a presentment warranty (Section 4208) or proof that the person seeking enforcement of the liability presented or transferred the item for the purpose of defrauding the payor bank." (Italics added.)
[14] Section 1103 reads: "Unless displaced by the particular provisions of this code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions." (Italics added.)
[15] See the new language of section 4302 set forth in footnote 13.
[16] As indicated in Chicago Title, supra, the cases do suggest that fraud perpetrated in an attempt to have the payor bank miss the midnight deadline is a defense to the deadline. However, there is no suggestion or evidence here that this is the type of fraud BOC is relying upon.
[*] See footnote, ante, page 726. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263079/ | 893 A.2d 250 (2006)
STATE
v.
Brian DENNIS.
No. 2003-58-C.A.
Supreme Court of Rhode Island.
March 17, 2006.
*252 Virginia M. McGinn, Providence, for Plaintiff.
Paula Lynch, East Greenwich, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
OPINION
Introduction
Justice ROBINSON for the Court.
The defendant, Brian Dennis, was indicted for the rape (two counts) and kidnapping of a woman to whom we will refer in this opinion as "complainant." After a suppression hearing concerning a disputed videotaped statement that the defendant made,[1] a trial was held. At the conclusion *253 of the trial, the jury convicted the defendant of one count of first-degree sexual assault, while simultaneously acquitting him of the second count of first-degree sexual assault and of the kidnapping charge. He was sentenced to thirty years of imprisonment, with seventeen years to serve and the remainder suspended with probation.
The defendant has appealed to this Court, contending that the denial of his motion to suppress his videotaped statement to the police constituted reversible error and that, therefore, the judgment of conviction should be vacated. As an additional basis for his appeal, defendant argues that the trial justice's failure to instruct the jury on its duty to make a determination about the voluntariness of defendant's videotaped statement constituted a violation of Rhode Island's "Humane Practice Rule." He further contends that the trial justice committed reversible error by improperly excluding from consideration by the jury: (1) evidence relating to his guardianship status; (2) testimony regarding a statement allegedly made to him by the police at the time of his interrogation at the police station; (3) evidence that complainant had in the past falsely accused another person of rape; and (4) certain evidence relative to particular aspects of the prior consensual sexual relationship between complainant and defendant.
For the reasons set forth herein, we sustain defendant's appeal, we vacate his conviction, and we remand the case to the Superior Court for retrial.
Facts and Travel
The complainant and defendant met and began a consensual sexual relationship one evening in or around January of 2000. After approximately two months of dating, complainant, together with her daughter from a previous relationship, moved into defendant's apartment on the second floor of a two-family house that he owned with his mother in Pawtucket, Rhode Island.
While complainant and defendant were living together, they argued frequently; and, within two months, complainant and her daughter moved out. Nevertheless, the volatile relationship between the two adults continued on and off, even after complainant moved out; and it is undisputed that the couple continued to engage in consensual sexual relations at various times between June and August of 2000.
On August 25, 2000, complainant's sister spoke with defendant by telephone and arranged to baby-sit for complainant's daughter so that complainant and defendant could go out together that evening. On that evening, the couple had dinner and drinks at a Chinese restaurant in nearby South Attleboro, Massachusetts, and then proceeded to drive to defendant's apartment, where defendant put some laundry in the dryer and complainant used his telephone to call and check on her daughter. Shortly thereafter, they left defendant's apartment and drove to a club called the Newport Deck. They never actually entered the club, however, because they began to argue in the parking lot. The complainant testified (and defendant acknowledged) that, after they began arguing, complainant made repeated requests to go home.
There is substantial conflict between the trial testimony of defendant and that of complainant as to what transpired after they left the premises of the Newport *254 Deck. The complainant testified that, after leaving the Newport Deck, defendant drove her to a location known as Parens Marina[2] and that, while there, defendant was angry and insulted her, saying that she was worthless and that he was going to rape her. She also testified that, as they were driving away from Parens Marina, defendant threw her pocketbook out of his truck window, but then stopped and retrieved it when she told him that it contained her daughter's medical records.
The complainant further testified that, after they left Parens Marina, defendant drove her back to his apartment over her repeated objections and requests to go home. She said that, upon arriving at his house, defendant dragged her out of the truck by grabbing her shirt and pushing her forward towards the staircase leading to his apartment on the second floor. The complainant also testified that she banged on the house in the hope of waking defendant's mother.[3] She further stated that she was then able to run away from defendant, but that he caught up with her and grabbed her, tearing her shirt.
According to complainant's testimony, defendant then shoved her back into the truck and proceeded to drive to a liquor store, where she waited in the truck while he went into the store and purchased a six-pack of beer. She testified that, after leaving the liquor store, defendant eventually drove her to her own apartment.
The defendant's version of the events following the argument outside the Newport Deck begins with the couple driving from that club to defendant's home. While defendant acknowledged in his testimony that complainant had asked him to take her home, he stated that he felt he would be able to calm her down. The defendant testified that complainant left the truck on her own, but that she then stood immobile next to the door of the truck, whereupon he put his arm around her waist and walked her up to the steps leading to the side door of his apartment. He further testified that he went up the steps to unlock the door and that, when he turned around, complainant was gone. The defendant said that he then saw complainant running away and ran to catch up with her and that, upon catching up to her, he gently walked her back to his truck. The defendant testified that at that point complainant did not ask to be taken home.
According to defendant's testimony, he then drove to a liquor store, where he purchased a six-pack of beer, and he and complainant then proceeded to drive to Parens Marina. (He testified that complainant did not ask to be taken home after leaving the liquor store.) The defendant stated that, after they arrived at Parens Marina, he opened a beer, offered it to complainant, but when she declined he drank it himself. He testified that she looked fearful at first, but that she gradually became comfortable. The defendant further testified that, after staying at Parens Marina for approximately fifteen minutes, complainant again began asking him to take her home. He conceded that he did drop complainant's pocketbook out of the truck window as they left Parens Marina, but he added that he did it so that she would stop talking and that he quickly retrieved it for her. The defendant testified that he then drove complainant to her home.
*255 There is conflicting testimony as to who unlocked the door to complainant's apartment; it is undisputed, however, that both of them entered the apartment and that, once inside, each drank a beer from the six-pack that defendant had purchased. According to the testimony of complainant, she then told defendant that she did not want anything to happen between them and that he should go home. She said that defendant told her to take her clothes off and that, when she did not do so, he unzipped her jeans, which fell to the floor, and that he then pulled on one side of her underwear causing them to fall off. She testified that she then went into her bedroom to get away from defendant and that defendant pushed her face down on her bed and proceeded to penetrate her vaginally from behind. The complainant testified that she was crying throughout the intercourse and that she told defendant "no" repeatedly.
The defendant testified that, when they entered complainant's apartment, she was talking about some makeup that had broken when he dropped her pocketbook out of the window of his truck as they were leaving Parens Marina. He further testified that he apologized about the makeup and offered to buy complainant some new makeup; he said that he then reached out for her, tearing her shirt a little. He proceeded to testify that complainant went in and out of the bathroom several times, eventually emerging from the bathroom wearing only her top.[4] He further testified that she then sat on the end of her bed with her legs open while staring at him seductively. (It is clear from the record that, although he was in the kitchen at that point in time, defendant was able to see into the bedroom.) The defendant then left the kitchen and entered the bedroomwhere, according to his testimony, he and complainant began to kiss each other. The defendant stated that they then engaged in consensual sexual intercourse, during which complainant neither resisted nor cried. The defendant also testified that complainant never told him to stop and that she responded to what was happening, if at all, with a groan.
It is undisputed that, after that first sexual act was completed, complainant got out of bed and went into the bathroom. She testified that, while in the bathroom, she put on a nightgown or T-shirt. The defendant testified that, when she returned from the bathroom, complainant went into the kitchen, took a beer out of the refrigerator and returned to the bedroom. The complainant denied that she ever left the bedroom to get a beer.
According to the testimony of complainant, defendant then fell asleep on her bed for a few hours even though she attempted to wake him up by bouncing on or shaking the bed. (The defendant quite similarly testified that complainant was bouncing on the bed in order to wake him.) The complainant further testified that she was afraid to leave the apartment or call the police while defendant was asleep because she was afraid of what he might do if he awoke and caught her. The complainant also testified that, after her efforts to awaken defendant proved unsuccessful, she fell asleep on her daughter's twin bed, which was adjacent to her own bed in the same room.
The complainant testified that, at approximately 3 a.m., she awoke to find defendant standing at the side of the bed, indicating that he wanted to have sexual relations with her again. The complainant testified that she told defendant no, but *256 that he told her that she was going to have to participate anyway. The complainant further testified that she then got up and moved towards the kitchen, at which point defendant put a pillow over her face and pushed her back onto her own bed. The complainant stated that defendant then removed the pillow and once again had sexual intercourse with her.
The defendant's version of the morning's events differs markedly from the account given by complainant. According to defendant's testimony, when he finally fell asleep following the first sexual encounter, complainant was across the room from him on her daughter's bed, but when he awoke she was lying beside him in her own bed. The defendant testified further that, when he awoke, he touched complainant, who was next to him in the bed, in an effort to arouse her sexually, at which point she got up and stood beside the bed. He stated that he then also got out of bed and that they stood next to each other and caressed each other and then engaged in consensual sexual intercourse.
The complainant testified that, after the second sexual act, defendant told her that he wanted to marry her. Both parties testified that defendant got up from the bed and went to the kitchen to make himself a lunch from food in complainant's refrigerator to bring to work. The complainant testified that, after making his lunch, defendant returned to the bedroom, kissed her on the forehead and told her that he loved her but had a funny way of showing it. In contrast, defendant testified that it was complainant who stated that defendant had a funny way of showing it.
After defendant left the apartment, complainant telephoned her sister and arranged to pick up her daughter. The complainant testified that during that phone call she did not mention anything to her sister about what had happened, because at that point she was not sure whether or not she would go to the police to complain.[5] Once she arrived at her sister's house and saw her daughter, however, she broke down and told her sister what had happened. The complainant testified that at that point she went with her sister to the Pawtucket police station, where she briefly recounted the events of the previous several hours to Officer David Kelly. After speaking with Officer Kelly, she was taken to the office of Detective Gary Grenier, who was called in along with Patrolman Doran[6] and Detective Gonsalves, so that a detailed statement could be taken.
After the detectives took complainant's statement, Detectives Grenier and Gonsalves, along with Detective Mark Force, accompanied her back to her apartment so that they could process the scene where the alleged incidents of sexual assault took place. They made arrangements to have complainant's sister meet them at the apartment so that she could take complainant to the hospital to be examined. Detective Grenier testified that, when they arrived at the apartment, complainant received a telephone call and indicated to the detectives that the caller was defendant. The detectives instructed complainant to invite him to come to her apartment to talk, which she did.[7] Detective Grenier *257 further testified that, at some point thereafter, complainant received a second phone call, also from defendant, and that the police again instructed her to invite him to the apartment. The complainant again complied with the instruction.
After receiving these two phone calls, complainant left the apartment to go to the hospital, and the police stayed behind. Detective Grenier testified that he and Detective Force stayed inside the apartment while Detective Gonsalves took up a surveillance position to the west of the apartment building so that, on the basis of complainant's description of defendant's vehicle, he could watch for defendant's arrival. Detective Grenier testified that, approximately forty minutes later, Detective Gonsalves notified him by radio that a vehicle matching the description given by complainant had pulled up on the street in front of the apartment. Detective Grenier further testified that, upon receiving the call from Detective Gonsalves, he looked out the window of the apartment and saw a man who he believed to be defendant exiting the vehicle.
The facts as to what happened next are largely disputed. Detective Grenier testified that, when defendant knocked on the outside door to the apartment, he answered the door, went outside and turned defendant around so that his hands were on the railing of the stairs. He then proceeded to do a pat-down search to determine whether defendant was carrying any weapons. Detective Grenier further testified that he then advised defendant that he was being taken into custody and would be brought to the Pawtucket police station. where the police would give him further information about the reason for his having been taken into custody. According to Detective Grenier, defendant said nothing in response.[8] At that point, Detective Grenier handcuffed defendant and called for a patrol unit to come and drive him to the police station.
The defendant testified that, when he pulled up in front of complainant's apartment and knocked on the door, there was no answer. He stated that he then returned to his truck and opened the door to get in, at which time a small station wagon pulled in front of the truck and the driver asked for directions. He further testified that, as he was giving the directions, the driver of the station wagon asked him whether he was Brian Dennisand, when defendant responded affirmatively, the driver told him that he was under arrest and put handcuffs on him. The defendant testified that the arresting officer, whom he later identified as Detective Gonsalves, neither informed him what the charges were nor read him his Miranda rights.[9] The defendant testified that he asked Detective Gonsalves why he was being arrested and that the detective responded, "I think you know."
The defendant testified that Detective Gonsalves then led him into complainant's apartment and sat him down on her couch. He further testified that Detective Grenier then walked out of the apartment and spoke with someone outside, while another officer examined the trash in the kitchen. The defendant testified that he was then taken to the police station by two officers, neither of whom read him his rights or informed him of the charges against him.
According to Detective Grenier's testimony, a patrol vehicle arrived in response to his call and drove defendant back to the *258 police station. The record indicates that Pawtucket Patrolmen Theroux and Doran were the officers who responded and who drove defendant to the station. Detective Grenier testified that he and Detective Force stayed behind at the apartment to finish processing the scene and to secure the apartment before returning to the police station. Patrolman Theroux testified that, upon arriving at the police station, defendant was processed, fingerprinted, photographed, and searched before being placed in a holding cell. Patrolman Theroux also testified that defendant made no statements during that period of time.
The defendant testified that he was not informed of the charges against him nor was he read his rights when he arrived at the station. He testified that, after being processed, he informed the officers that he had a guardian.[10] After processing defendant, Detectives Grenier and Gonsalves took defendant from his cell to another room for interviewing.
According to Detective Grenier, the detectives brought defendant to an interview room and reviewed with him the preprinted form setting forth his Miranda rights. Detective Grenier further testified that, when the defendant confirmed that he understood his rights, the detectives asked him to fill in his name and to initial the form in the appropriate places, which he did. Detective Grenier also testified that defendant neither made any statements nor asked any questions while the form was being reviewedbut that, after being advised of his rights, defendant agreed to make a statement. Detective Grenier testified that they then spoke with defendant for a short time[11] before deciding to videotape the statement.
The defendant testified that, after Detective Grenier and Detective Gonsalves brought him from the cell to the interview room, they asked him what had taken place. He said that he responded to that question by giving a brief description of the events leading up to his arrest. He further testified that, after hearing his description of those events, the detectives stated, "We almost believe you." The defendant testified that his rights were not read to him until the detectives turned on the video camera. In his videotaped statement, defendant's version of the events was largely consistent with what the complainant herself had told the policethe very significant difference being that defendant claimed that each of the two acts of sexual intercourse between complainant and him had been consensual.
At the pretrial suppression hearing on May 30, 2002,[12] at which defendant testified, *259 it was the contention of the defense that the videotaped statement taken by the Pawtucket police should not be admitted into evidence because it had been given involuntarily. The defendant's contention that the statement was involuntary was based upon: (1) his limited mental capacity due to a brain injury he suffered in his late teens; (2) his status as a person under guardianship as a result of that injury; (3) his testimony at the suppression hearing that he informed the police of his guardianship status and that they mocked him because of it; (4) his testimony that he was interrogated by the police while in custody but prior to being given Miranda warnings; and (5) his testimony that he agreed to give the videotaped statement because the police had told him "we almost believe you." (The giving of such an assurance by the police, defendant contends, constituted the use of an improper interrogation technique.)
At the suppression hearing, after hearing the testimony of the witnesses and the arguments of counsel, the trial justice denied defendant's motion to suppress the videotaped statement. At the outset of his decision on that issue, the trial justice noted that he did not give great weight to the "pronouncement on [defendant's] guardianship for mental illness." In addition, the trial justice found that "the defendant was not afforded his rights in anything other than a satisfactory manner." It appears from the record (although it is nowhere explicitly stated) that the trial justice also found that there had been no interrogation of defendant before he was presented with the waiver of rights form.
At the trial, in response to a question asked on direct examination about what occurred at the Pawtucket police station, defendant testified that he had told the police: "I have a guardian." The prosecutor immediately objected and requested a sidebar conference, during which the trial justice stated for the record that he had ruled in a chambers conference that he would not allow the jury to hear any testimony or consider other evidence relative to defendant's guardianship status. More specifically, the trial justice stated:
"[I]n that chamber's [sic] conference the court gave an advisement to defense counsel that based on the hearing of the suppression issue * * * and the court's findings that the defendant made a knowing, willing, and intelligent waiver of his rights that there would be no mention by any witness * * * with regard to whether or not this defendant had a guardian. Now, the court believes that that adjudication precludes any mention of him by this [sic] because there is a rehash of now [sic] this whole Miranda situation which the court already ruled on. * * * [T]here will not be any instructions to this court regarding Miranda rights to this jury. I already made a legal determination that his rights were covered adequately * * *."
The trial justice then struck from the record defendant's statement about having a guardian, and he instructed the jury to disregard it.
Later, after both parties had rested, the trial justice charged the jury, but he did not give an instruction concerning the jury's role with respect to determining the voluntariness vel non of defendant's videotaped statement. Counsel for defendant did not object on the record concerning the lack of a jury instruction relative to the *260 jury's duty to determine the voluntariness of defendant's videotaped statement.
After the jury found him guilty of the first count of first-degree sexual assault,[13] defendant filed a motion for a new trial. That motion was denied on June 21, 2002, and defendant was then sentenced to thirty years of imprisonment at the Adult Correctional Institutions, with seventeen years to serve and the remainder suspended, with probation. The defendant timely appealed.
On appeal, defendant argues that the trial justice's failure to give an instruction to the jury concerning its role in determining the voluntariness of defendant's videotaped statement constituted a violation of Rhode Island's Humane Practice Rule,[14] and defendant contends that that failure was reversible error. The state counters that, because defendant did not object on the record to the lack of a jury instruction about voluntariness, he is precluded from raising the issue on appeal. The defendant further argues that the trial justice's exclusion of certain evidence bearing on the voluntariness of defendant's videotaped statement[15] was also a violation of his rights under the Humane Practice Rule and also constitutes reversible error.
The defendant contends that his failure to object to the lack of a jury instruction about the voluntariness of his videotaped statement to the police should not be fatal to his appeal with respect to that issue. He argues that, in addition to the important fact that the trial justice explicitly told counsel on the record that the jury would not be instructed as to Miranda rights, the trial justice also explicitly declined to admit for consideration by the jury certain evidence relevant to the issue of the voluntariness of defendant's statement. Because of those adverse evidentiary rulings, defendant argues, there would have been insufficient substantive evidence in the record for the jury to weigh even if an instruction about voluntariness had been given. In other words, defendant argues that, once the judge decided to exclude the evidence, an instruction about the jury's role in determining voluntariness would have been ineffectual.
The defendant also argues on appeal that the trial justice, in conducting his own assessment of voluntariness, erred in ruling that the state met its burden of proving that defendant gave his statement voluntarily because the trial justice did not first consider the totality of the circumstances in which defendant waived his rights and proceeded to give the statement.
In addition, defendant contends that there is sufficient evidence in the record to demonstrate that the police interrogated him before he received Miranda warnings and that, therefore, pursuant to the United States Supreme Court's recent decision in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), his waiver was involuntary. The state disagrees, arguing that the evidence in the record supports the trial justice's determination that *261 defendant was informed of his rights in a constitutionally satisfactory manner.
The defendant also argues that the trial justice erred in prohibiting defense counsel from impeaching complainant with evidence that she had lied on a prior occasion about having been raped. (The complainant's prior admittedly false claim of rape did not involve the instant defendant, but rather another man.) The state contends that the trial justice properly excluded that evidence due to the fact that complainant did not make that false claim to the police or to any other authority.
The defendant further contends that the trial justice improperly excluded evidence relating to certain specific aspects of the consensual sexual relationship between complainant and him during the months preceding the time of the incidents at issue here and that, by so excluding that evidence, the trial justice impermissibly interfered with his right to testify on his own behalf. The state argues that the trial justice properly limited the scope of the evidence concerning the nature of the consensual relationship between complainant and defendant.
Standard of Review
When reviewing a trial justice's decision to deny a criminal defendant's motion to suppress a confession, we give deference to the trial justice's findings of fact, reversing only when those findings were "clearly erroneous." State v. Page, 709 A.2d 1042, 1044 (R.I.1998). However, the ultimate question of whether a confession was given voluntarily is legal in nature, and "this Court undertakes a de novo review of questions of law and mixed questions of law and fact insofar as those issues involve constitutional issues." Id. (citing State v. Nardolillo, 698 A.2d 195 (R.I.1997) and State v. Campbell, 691 A.2d 564 (R.I.1997)). For a defendant's confession to be admissible against him or her, the state must first prove by clear and convincing evidence that the defendant's Miranda rights were knowingly, voluntarily and intelligently waived. Page, 709 A.2d at 1044.
The rules contained in Article IV of the Rhode Island Rules of Evidence, although not explicitly cited by the trial justice in the present case, empower trial justices to exclude certain evidence. Our review of the trial justice's rulings of law with respect to the admission or exclusion of evidence is limited to determining whether the trial justice abused his discretion.[16]
Analysis
I
The Humane Practice Rule
When a criminal defendant challenges the voluntariness of his or her statements to the police, the courts of Rhode Island evaluate the challenge pursuant to what has long been called the Humane Practice Rule.[17]See, e.g., State v. *262 Tassone, 749 A.2d 1112, 1117-18 (R.I. 2000).
The Humane Practice Rule requires that a trial justice in this jurisdiction, before allowing the admission of a defendant's inculpatory statement or confession into evidence, must make a preliminary determination that the statement or confession was made voluntarily. Id. at 1118; see also State v. Killay, 430 A.2d 418, 421 (R.I.1981). In further accordance with the Humane Practice Rule, if the trial justice is persuaded by clear and convincing evidence that the statement was voluntary, he or she then must, as an additional safeguard, give a specific instruction to the jury that it may consider the statement as substantive evidence only if it first finds that the statement was made voluntarily. State v. Lima, 546 A.2d 770, 773 (R.I.1988) ("[T]he trial justice * * * must specifically instruct the jury that before it may consider the evidence substantively it must determine that the inculpatory statement was not obtained in violation of the defendant's constitutional guarantees."); see also Tassone, 749 A.2d at 1118.
In other words, the Humane Practice Rule requires that judge and jury make separate and independent determinations of voluntarinessand the defendant's statement may not serve as a basis for conviction unless both judge and jury determine that it was voluntarily made. See, e.g., Tassone, 749 A.2d at 1118; Lima, 546 A.2d at 773. With respect to the voluntariness determinations that are to be made separately by the trial judge and the jury, the burden of proof that is imposed upon the state is that of "clear and convincing evidence." Lima, 546 A.2d at 773 n. 3.
In the present case, after a preliminary hearing outside the presence of the jury, the trial justice implicitly found that defendant had been given his Miranda rights before being questioned and that he had voluntarily waived those rights and had voluntarily given a videotaped statement to the police.[18] As the trial came to an end and both parties had rested, the trial justice instructed the jury. Very significantly, however, he did not instruct the jury that it must first determine whether defendant's videotaped statement was made voluntarily before it could consider the statement as substantive evidence.
We are well aware of the fact that Rule 30 of the Superior Court Rules of Criminal Procedure requires that, in order to preserve the issue for appeal, a defendant must articulate an objection to the giving or omission of a particular jury instruction before the jury is excused to consider its verdict and must state with specificity the grounds for that objection.[19]See State v. Brown, 744 A.2d 831, 837 (R.I.2000); see also State v. Hanes, 783 A.2d 920, 924 (R.I.2001); State v. Pailin, 114 R.I. 725, 730, 339 A.2d 253, 256 (1975) (rejecting defendant's contention that the trial justice committed reversible error by *263 failing to charge the jury with the duty of determining the voluntariness of defendant's statement, since defendant never requested such an instruction).[20]
It is our opinion, however, that there are circumstances peculiar to the present case which justify our consideration of defendant's Humane Practice Rule argument notwithstanding his failure to have raised that issue immediately after the jury was instructed. As we have indicated, during the trial, defendant testified on direct examination that, on the day of his arrest, after being fingerprinted and photographed at the police station, he informed the police that he had a guardian. The prosecutor objected and requested a sidebar conference, during which the trial justice stated for the record that, in a chambers conference, he had indicated to counsel that no witness was to mention whether or not defendant had a guardian. The trial justice did not limit himself to summarizing his view as to the admissibility of the evidence relative to the guardianship issue; rather, he chose to make a broader statement to the effect that "this whole Miranda situation" had been ruled on. Specifically, the trial justice stated:
"[I]n that chamber's [sic] conference the court gave an advisement to defense counsel that based on the hearing of the suppression issue * * * and the court's finding that the defendant made a knowing, willing, and intelligent waiver of his rights that there would be no mention by any witness * * * with regard to whether or not this defendant had a guardian. Now, the court believes that that adjudication precludes any mention of him by this [sic] because there is a rehash of now [sic] this whole Miranda situation which the court already ruled on. * * * [T]here will not be any instructions to [sic] this court regarding Miranda rights to this jury. I already made a legal determination that his rights were covered adequately * * *."
Unquestionably, the trial justice was within his discretion in according little or no weight to the evidence relating to defendant's guardianship status when making his own determination that defendant's statement was voluntary; however, under our law, he was not permitted to stop there. Pursuant to the Humane Practice Rule, the trial justice was required to instruct the jury that the jury had an affirmative duty to make its own independent determination as to the voluntariness of the videotaped statement, and he was accordingly required to give the jury the opportunity to weigh the admissible evidence relative to the facts and circumstances bearing on that issue.[21] However, instead of instructing the jury to that effect in accordance with the Humane Practice Rule, the trial justice not only *264 stated that he had found that "the defendant made a knowing, willing, and intelligent waiver of his rights," but he also went on to say very definitively that he would not instruct the jury as to voluntariness. His exact words were: "[T]here will not be any instructions * * * regarding Miranda rights to this jury."
It is clear to us that the Humane Practice Rule was not adhered to in the instant case and that, therefore, defendant's conviction must be vacated and the case remanded for retrial. We have chosen to disregard, in this close case, defendant's regrettable failure to have objected to the omission of a jury instruction on voluntariness; we have done so because of the trial justice's explicit statement that he would not give "any instructions * * * regarding Miranda rights to this jury."
Although the trial court's failure to have adhered to the Humane Practice Rule constitutes a more than sufficient basis for the vacation of defendant's conviction, we shall now proceed to comment upon certain other arguments advanced by defendantsince the issues implicated by those arguments are likely to present themselves once again at a retrial of this case.
II
The Exclusion of Certain Evidence Bearing on Voluntariness
It is further our opinion that the trial justice erred in excluding certain evidence relative to the voluntariness issue in light of the strictures of the Humane Practice Rule. Specifically, the trial justice abused his discretion by excluding testimony regarding a statement that defendant said the police made to him just before he executed the waiver of rights form; he alleges that this purported statement by the police influenced his decision to give a videotaped statement. During the trial, defense counsel asked Detective Grenier on cross-examination whether he told defendant during a pre-videotape interrogation that he "almost believed" him. The state objected to this question, and the trial justice sustained the objection stating at a sidebar conference with counsel:
"That line of questioning is forbidden by Harnois. If any of those statements were made that the defendant could testify or is required to testify to through them personally not through this witness."
It is our view that State v. Harnois, 638 A.2d 532 (R.I.1994), the case referred to by the trial justice, is inapposite to the situation presented here. In Harnois, this Court held that a non-testifying defendant could not introduce his own statements through the testimony of investigating officers or through other police records. Id. at 535-36. In the present case, by contrast, defendant, sought to give greater credence to the testimony that he planned to give by asking the detectives themselves about a statement that he says they made to him. The defendant argues that the detectives' statement to him that they "almost believe[d]" him indicates that they were employing an improper interrogation technique, the use of which he contends rendered his waiver ineffectual and his statement involuntary. Without commenting on his theory, it is our view that defendant should have been permitted to attempt to elicit this testimony from the detectives, since it might have had a bearing on the jury's assessment of voluntariness.
It is also our opinion that the trial justice erred by excluding from consideration by the jury evidence pertaining to defendant's alleged guardianship status. Although the trial justice was surely within his discretion in ascribing little weight to defendant's guardianship status in making *265 his own decision on the issue of voluntariness, defendant's guardianship status was one of the circumstances surrounding his interrogation that the jury would have had to consider if it had been given the opportunity to make a voluntariness determination, as it should have.[22] By excluding from the jury testimony about defendant's guardianship status, the trial justice kept from the jury the full context of defendant's interrogation and attendant videotaped statement. We hasten to add that the relevancy of the defendant's guardianship status has a temporal aspect: the issue to be determined at trial would be defendant's current status and not what occurred many years ago. It is incumbent upon the defense to produce evidence of defendant's guardianship status at the time of this incident.
III
The Trial Justice's Ruling as to the Voluntariness of Defendant's Statement
The defendant asserts that the trial justice failed to consider the totality of the circumstances surrounding defendant's interrogation by the Pawtucket police when making his own determination that the statement was given voluntarilya failure that the defendant contends was error. In determining whether a statement was made voluntarily, the trial justice must consider the totality of the facts and circumstances related to the giving of that statement. State v. Marini, 638 A.2d 507, 512 (R.I.1994) ("When reviewing the voluntariness of a confession, all facts and circumstances surrounding the confession must be taken into account in determining whether, overall, the confession was freely and voluntarily made.").
Specifically, defendant cites as error the trial justice's failure to make factual findings concerning the following disputed issues of fact: (1) whether defendant advised the police that he had a guardian; (2) whether defendant was questioned prior to being given Miranda rights; (3) whether the detectives told defendant that they "almost believed" him; and (4) whether defendant understood and voluntarily waived his rights.
It is well settled that we review the determination of a trial justice concerning the voluntariness of a statement in a de novo manner. State v. Ramsey, 844 A.2d 715, 720 (R.I.2004). Although the record in the instant case contains only a relatively small amount of express fact-finding relative to the trial justice's legal conclusion that defendant voluntarily agreed to make the videotaped statement, we have concluded that the fact-finding in that respect was sufficient to permit us to review the legal conclusion.
Given the trial justice's express and implied fact-finding, which we have determined not to be clearly erroneous, see Ornelas v. United States, 517 U.S. 690, 697, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); see also State v. Verrecchia, 880 A.2d 89, 95 (R.I.2005), we hold that the trial justice did not err when he ruled that the state had borne its burden of proving by clear and convincing evidence that the videotaped statement was voluntarily made.
*266 IV
The Prior False Claim Issue
The defendant also argues that, by prohibiting the defense from impeaching complainant with evidence of a prior false claim of sexual assault made by her, the trial justice erroneously excluded evidence that was directly relevant to the issue of her credibilitythereby depriving him of the right to cross-examine her adequately.[23] It is a given in our system of justice that "[t]he right to cross-examine adverse witnesses provides the defendant with an opportunity to test the credibility and veracity of the witnesses' testimony."[24]State v. Dorsey, 783 A.2d 947, 950 (R.I.2001); see generally Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). Moreover, evidence that a witness previously made a similar claim of wrongdoing against one or more other persons may be admissible to challenge that witness's credibilityeven if that claim was never proved false. See Dorsey, 783 A.2d at 951 ("[E]vidence of a complaining witness's similar accusations of wrongdoing against others may be used to challenge a witness's credibility with respect to the pending charges, regardless of whether those prior accusations ever were proved false.").
In the present case, complainant herself admitted (at defendant's probation violation hearing) that, on a prior occasion, she had lied to defendant and to others by claiming that she had been raped (in another state by another man). In our view, this prior false claim of rape is relevant because of the similarity between the two alleged acts (rape in each instance) and the fact that complainant had admitted that the earlier accusation was a lie. Therefore, it is our view that this evidence was directly relevant to defendant's effort to discredit complainant's credibility and that it was an abuse of discretion to have excluded it.
We perceive no basis in the law for the state's contention that Rhode Island law requires that similar false claims by a witness about past wrongdoing must have been made to the police or to some other authority in order to be admitted for purposes of impeachment. In State v. Izzi, 115 R.I. 487, 348 A.2d 371 (1975), this Court reversed a defendant's conviction in an assault and battery case and held that the trial justice had improperly excluded the testimony of three witnesses who were prepared to testify that the complainant had repeatedly made similar unfounded false accusations of assault and battery to coworkers. The defendant in that case was an attendant at a mental health institution at which the complainant was a resident patient, and the three witnesses whose testimony was excluded were also attendants at the facility. Id. at 488, 348 A.2d at 371-72. In spite of the fact that the testimony did not involve charges made to police officers or other authority figures, this Court held that the evidence was erroneously excluded and that the defendant was prejudiced by that exclusion.
In Izzi. this Court likened the assault and battery allegations at issue in that *267 case to the prosecution of sex offenses and noted that in such cases the legal propriety of admitting evidence of similar false accusations lies, inter alia, in the fact that "guilt or innocence often turns on the relative credibility of the prosecutrix and the accused" especially in the absence of eyewitnesses. Izzi, 115 R.I. at 490, 348 A.2d at 372, 373. The complainant admitted at defendant's probation violation hearing that she lied to defendant and told him that she had been raped when she actually had not been. She testified as follows:
"Something did happen with that person, and I lied about the rape part of it because I, I liked [defendant] a lot and I didn't want him to think lower of me or something."
As the state acknowledges in its brief to this Court, complainant also testified that defendant was not the only person she ever told about the incident, although she could not remember the names of the other people she told. Credibility was of enormous importance in the instant case, in which there were no eyewitnesses. The complainant's testimony that she had on a prior occasion falsely told defendant and others that she had been raped was certainly relevant to the crucial issue of her credibility and might well have had a substantial impact upon the members of the jury. Consequently, we are of the opinion that the trial justice abused his discretion in not allowing the complainant to be cross-examined about this subject.
Conclusion
For the reasons set forth in this opinion, the defendant's appeal is sustained, his conviction is vacated, and the case is remanded to the Superior Court for retrial. The record may be returned to that court.
NOTES
[1] The defendant timely moved to suppress a videotape containing a statement that he made at the police station on the day of his arrest. After a jury was empaneled but before the actual trial commenced, the trial justice excused the jury and conducted a hearing with respect to that motion to suppress.
[2] The record indicates that Parens Marina is off School Street in Pawtucket.
[3] Although complainant testified that she was trying to awaken defendant's mother, she acknowledged that she did not yell or scream as she passed beneath Mrs. Dennis's kitchen window, which was on the first floor of the house.
[4] The defendant's trial testimony about this part of the evening differs in several material respects from the videotaped statement that he gave to the police at the police station.
[5] The complainant's sister testified that, although she believed that complainant did call her house on the morning of August 26, 2000, she did not speak to her sister at that time. She speculated that someone else at her house must have answered the phone.
[6] The record indicates that Patrolman Doran has since become a detective in the Pawtucket Police Department.
[7] The defendant testified that, when he first called complainant on August 26, she told him to go home. He also testified that it was he who had wanted to go to her apartment.
[8] At the hearing on his motion to suppress, Detective Grenier testified that defendant asked why he was being taken into custody.
[9] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[10] The trial justice barred any further testimony related to the guardianship issue. The defendant had testified at the hearing on his motion to suppress the videotaped statement that he informed the officers who processed him that he had a guardian and that they responded by telling him that he was too old to have a guardian.
[11] Detective Grenier testified at the hearing on defendant's motion to suppress that defendant was given his Miranda warnings "ten to fifteen minutes, if that" before the videotaping began. Regrettably, the waiver of rights form that defendant signed, which might well have indicated the precise time that the Miranda warnings were given, was lost at some time before the suppression hearing.
[12] Several months prior to the suppression hearing, beginning on January 23, 2001, there had been a probation violation hearing. At the time of the incidents relevant to this case, defendant was on probation for a prior unrelated offense. The hearing justice at the probation violation hearing found that defendant had violated the terms and conditions of his probation. Even though he found a probation violation, the hearing justice chose to revoke the suspended sentence that had been imposed with respect to the underlying charge and chose instead to impose a two-year sentence for the violation. The hearing justice then credited defendant for time served and suspended the balance of that two-year sentence.
[13] It will be recalled that, with respect to the second count of first-degree sexual assault (which related to the act of sexual intercourse that took place in the complainant's apartment a few hours after the first sexual act between these two persons in that same location), the jury found defendant not guilty. It will further be recalled that the jury also found defendant not guilty of the kidnapping charge.
[14] The "Humane Practice Rule" is defined and discussed later in this opinion.
[15] According to defendant, the most potentially probative pieces of excluded evidence would have been testimony about his guardianship status and testimony about statements allegedly made to him by the police during a pre-Miranda interrogation.
[16] Of course, if it were alleged that the admission or exclusion of evidence were so complete as to violate a defendant's constitutional right to confrontation, we would review the trial justice's ruling in a de novo manner. See State v. Oliveira, 882 A.2d 1097, 1122 (R.I. 2005) ("In situations in which the trial justice does not totally prevent or completely prohibit the defendant from exploring the issues of motive, bias, or prejudice of the witness, we employ an abuse-of-discretion standard on review.") (emphasis added).
[17] Rhode Island has adhered to the Humane Practice Rule, a quite remarkable supplementary protection for defendants, since at least the time of this Court's decision in the case of State v. Mariano, 37 R.I. 168, 186-87, 91 A. 21, 29 (1914). See State v. Killay, 430 A.2d 418, 421 n. 2 (R.I.1981). The title given to this rule appears to have been derived from the opinion of Chief Justice Morton in the Massachusetts case of Commonwealth v. Preece, 140 Mass. 276, 5 N.E. 494, 495 (1885) (a case that this Court cited in Mariano).
[18] We will address in section III of this opinion the issue of whether the trial justice, in making his own determination as to the voluntariness of defendant's videotaped statement, sufficiently examined the totality of the circumstances surrounding defendant's making of that statement.
[19] Rule 30 of the Superior Court Rules of Criminal Procedure states in relevant part: "No party may assign as error any portion of the charge or omission therefrom unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the party's objection." See generally State v. Pacheco, 763 A.2d 971, 979 (R.I.2001).
[20] What distinguishes the instant case from cases such as State v. Pailin, 114 R.I. 725, 730, 339 A.2d 253, 256 (1975), where the right to an instruction on voluntariness was deemed to have been waived, is the fact that the trial justice in the case at bar stated in no uncertain terms that "there will not be any instructions * * * regarding Miranda rights to this jury." While defense counsel in the instant case (notwithstanding the quite definitive statement by the trial justice) should have requested such an instruction at the time of jury instructions and should have objected on the record when such an instruction was not given, in the context of this record we decline to hold that defendant has waived his argument based on the Humane Practice Rule.
[21] This principle is akin to the principle that a trial judge may not direct a verdict in favor of the prosecution in a criminal case. See State v. Ensey, 881 A.2d 81, 96 (R.I.2005); see also Sullivan v. Louisiana, 508 U.S. 275, 277, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) ("The right [to trial by jury] includes, of course, as its most important element, the right to have the jury, rather than the judge, reach the requisite finding of `guilty.'").
[22] Rule 401 of the Rhode Island Rules of Evidence defines relevant evidence in rather liberal terms, and it is our judgment that defendant's guardianship evidence was admissible under that rule.
Rule 401 reads as follows:
"`Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
[23] A defendant's right to confront and to cross-examine a testifying adverse witness is guaranteed by the Sixth Amendment to the United States Constitution and by article 1, section 10, of the Rhode Island Constitution.
[24] The right to confront and cross-examine adverse witnesses is not without limits, however, and our review of the limitations that a trial justice has placed on cross-examination is limited to determining whether there was an abuse of discretion in the imposition of such limitations. See State v. Dorsey, 783 A.2d 947, 950 (R.I.2001) ("This right * * * is not unlimited, and it may be circumscribed within reasonable parameters of relevance in the exercise of the trial justice's discretion."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263146/ | 27 F.Supp. 639 (1939)
McQUILLEN et al.
v.
NATIONAL CASH REGISTER CO. et al.
No. 2274.
District Court, D. Maryland.
May 4, 1939.
*640 *641 Arthur Berenson, of Boston, Mass., and Samuel J. Fisher, of Baltimore, Md., for plaintiffs.
Piper, Watkins & Avirett (by James Piper and R. Dorsey Watkins), of Baltimore, Md., for National Cash Register Co.
Marbury, Gosnell & Williams (by William L. Marbury, Jr., and William L. Rawls), of Baltimore, Md., for Edward A. Deeds, Ezra M. Kuhns, Stanley C. Allyn, J. H. Barringer, and William Hartman.
Bartlett, Poe & Claggett (by J. Kemp Bartlett, Jr.), of Baltimore, Md., for Lee Warren James.
WILLIAM C. COLEMAN, District Judge.
This is a minority stockholders' suit against the National Cash Register Company and other defendants, originally fourteen in number, by which it is sought to have this Court declare null and void (1) an issue of stock by the company, and (2) an option given to Edward A. Deeds, chairman of its board of directors and executive committee, for the purchase of certain of the company's shares, in consideration of his services to the company.
This court has already rendered two written opinions in this proceeding, in addition to its rulings upon various motions. On December 14th, 1935, it was decided that since the National Cash Register Company is a Maryland corporation, this court had jurisdiction in rem to entertain the suit because the company's property, represented by certificates of stock, has a situs within the Maryland district, that is to say, at the corporation's domicile, which is, therefore, the appropriate place to settle disputes over the legality of the issuance of such stock; and that thus the provisions of Section 57 of the Judicial Code (28 U.S.C.A. § 118), providing for substituted service upon non-resident defendants in suits to remove any encumbrance, lien or cloud upon title to real or personal property, cognizable by the District Court in the district in which such property is situated, were applicable. See D.C., 13 F. Supp. 53. Again, on March 17th, 1938, this Court, following a hearing on various motions presented by defendants, some to dismiss the bill of complaint, as amended, in its entirety, and others to dismiss portions of it, decided that whereas the motions should be sustained with respect to the major portion of the allegations of the amended bill of complaint, nevertheless, plaintiffs were entitled to be heard on the merits with respect to that part of it which related to the two corporate acts above referred to. See 22 F.Supp. 867. The present opinion contains the Court's findings of fact and conclusions of law with respect to these two matters, a large amount of testimony having been taken, both in open court and by deposition, and extensive arguments of counsel having been heard, accompanied by the submission of briefs.
As already stated, originally, there were fifteen defendants, including the company, but in the course of the litigation, this court dismissed the suit for want of jurisdiction as to all defendants except the company and five individuals S. C. Allyn, J. H. Barringer, Edward A. Deeds, William Hartman and Ezra M. Kuhns, who appear specially and only for the purpose of protecting the interests which they may have in any property within the Maryland District, pursuant to this court's prior decisions.
For the sake of clarity, this opinion will be divided into two sections. In the first, we will deal with the contested stock issuance, i. e. the issuance of 200,000 shares of stock known as "C" stock, in exchange for the 400,000 "B" shares outstanding; in the second, we will deal with the contested option to defendant Deeds.
Issuance and Exchange of the "C" Shares.
Since, in its opinion of March 17th, 1938, this Court dealt at considerable length with the details of the original capitalization and recapitalization of the National Cash Register Company, a repetition of many of these details may be here omitted. Suffice it to repeat, by way of introduction *642 to the plaintiffs' claim to the effect that this stock transaction was irregular and invalid, that the National Cash Register Company was incorporated in January, 1926, with two classes of stock, "A" preferred, with an authorized issuance of 1,100,000 shares, and "B" preferred, with an authorized issue of 400,000 shares, both of these classes of stock being of no par value. By the company's charter, the "A" shares carried cumulative dividends of $3 per share, while the "B" shares carried a dividend of like amount but non-cumulative. Upon dissolution or payment of dividends in excess of $3 per share, the "A" and "B" shares were to be placed on a parity. The "A" and "B" stock had equal voting rights per share except for the election of directors, in which case the "B" shares had the right to elect a majority and the "A" a minority, so long as the company was not in default in the payment of two quarterly dividends on the "A" stock, or the net earnings for the previous fiscal year amounted to $3 per share of "A" stock. While any such default existed, each share of stock of each class had equal voting rights for directors. The corporate action of which the plaintiffs complain was taken at a special meeting of the stockholders of the company, duly called by the board of directors and held on December 15th, 1932. At that time the unpaid dividends on the company's "A" stock had accumulated to an exceedingly large amount, namely, $5,801,250, no dividends having been paid since the fall of 1931, due to the economic depression. At this meeting, it was voted by the combined vote of the holders of more than two-thirds of the shares of the "A" stock and "B" stock outstanding and entitled to vote, considered as a single class, to do the following three things: (1) To reduce the amount of issued capital stock from $42,000,000 to $24,420,000, and to authorize the filing of articles of reduction; (2) to amend articles 5th and 6th of the company's charter so as to authorize the issuance of 200,000 shares of "C" stock, with the same rights as to dividends, distribution on dissolution and voting rights as the "A" shares carried, this new stock to be issued in exchange for "B" stock at the rate of one share of "C" for 2 shares of "B" stock; and (3) to issue 238,000 new shares of "A" stock to the holders of record of "A" stock, pro rata, as a split-up.
The plaintiffs, by reason of trusteeships, owned at the time this suit was brought (July, 1934) and still own, 100 "A" shares of the company, for which they paid approximately $8000 in 1928 and 1929. In June, 1934, these shares had a market value of about $1,600, so plaintiffs claim they have lost about 80% of the cost price of the stock, regardless of dividend loss.
Briefly summarized, the gist of plaintiffs' claim of irregularity and illegality on the part of the defendants may be divided into three parts: (1) That the plan of this recapitalization was conceived in iniquity and unfairness to the "A" stockholders in that the company, through its officers and directors who owned or controlled the "B" shares, and less than two-thirds of the "A" shares, illegally dominated and brought about the issuance of the "C" shares, and their exchange for the "B" shares, thereby giving the "B" shareholders rights to which they were not entitled, and thereby in turn depriving the "A" shareholders of their rights; (2) that the votes of stockholders requisite for the accomplishment of these results was lacking at the meeting; and (3) that the documents essential to a lawful amendment of the charter, in order to accomplish these results, were irregularly executed.
The Court has reached the conclusion that there is no merit whatsoever in any of these contentions. For the purpose of presenting its reasons in as succinct a manner as possible, it will be helpful to consider the questions presented under the three following headings, in sequence: (1) The corporate action taken; (2) how it was taken; and (3) the authority by statute and charter to take it.
The corporate action taken. A statement of the three purposes of the special meeting of stockholders called for December 15th, 1932, has already been given. This meeting was called pursuant to action of the board of directors on November 18th, 1932. Under date of November 19th, 1932, a formal notice was sent to all stockholders of record, accompanied by a letter to which was appended a consolidated balance sheet of the company as of September 30th, 1932, and which contained the following statement:
"The plan, and its effects upon the outstanding Common A Stock and Common B Stock, may be summarized as follows:
"Common A. Stock. The 1,190,000 shares of A stock now outstanding [including 90,000 shares issued for subsequently acquired property] would be increased *643 by 238,000 shares (20%), distributed as a split-up pro rata among the holders of the present A stock. A new class of stock would be authorized as Common C, entitled to the same rights per share as the A stock with respect to distributions on liquidation, voting and dividends, including dividends per share equal to dividends declared per share on the A stock as arrears. Arrears on the A stock now aggregate $5,801,250. The C stock would be authorized in the amount of 200,000 shares, all of which would be issuable in exchange for the 400,000 outstanding shares of B stock. Upon the completion of such exchange, and the retirement of all of the B stock, the A and C stocks would become and constitute a single class of Common Stock, entitled to elect all of the directors of the Company under all conditions.
"Common B. Stock. Holders of B stock who exchange such stock for C stock would surrender their right to participate in the election, under the conditions outlined below, of a majority of the directors; such holders would receive one-half share of C stock for each share of B stock, and would suffer a further diminution of their interest in the equity, in event of liquidation, through the 20% distribution on the A stock. Such holders, however, as the holders of C stock, would be entitled to receive dividends on such stock equal per share to any amounts paid on the A stock, without waiting for the payment of arrears in dividends on the A stock or for the curing of the deficiency in earnings, as set forth below.
"Of the total of 1,590,000 shares of A and B stocks now outstanding, the A shares represent about 75% (the A shares having preference as to dividends). After the distribution of 20% in A stock, however, and the retirement of all of the B stock through exchange for C stock, total shares then outstanding would be 1,628,000, of which the A shares would represent about 87% and C shares (having rights equal to the A shares) the remainder.
"In connection with the foregoing, certain provisions of the charter are pertinent, which provisions may be summarized as follows:
"The A stock is entitled to preferential cumulative dividends of $3 per share per annum, before any dividend on the B stock. Subject to this prior right, the B stock is entitled to non-cumulative dividends of $3 per share in any year. Both classes of stock participate equally share for share in additional dividends in any year. The A and B stocks participate equally share for share in distribution of assets in liquidation.
"The A and B stocks have equal voting rights except that the B stock has a right to elect a majority of the directors, and the A stock has the right to elect the remaining directors, unless at the time of election two quarterly preferential dividends on the A stock are in arrears, or unless earnings for a preceding fiscal year have been less than $3 per share on the A stock and such deficiency has not been made good by subsequent excess earnings, in each of which cases the A and B stocks vote equally share for share in the election of directors.
"Preferential dividends on the A stock are now in arrears, and there exists also a deficiency in earnings as defined in the charter; and by virtue of the above charter provisions, the Directors now in office were elected by the combined vote of the A and B stocks, voting as a single class. Directors will continue to be so elected, under the present provisions of the charter, until the arrears are made up and the deficiency in earnings has been cured. Thereupon, the right to elect a majority of the directors will revert to the holders of the B stock. But with the retirement of the B stock, the above charter provisions would, of course, become inapplicable, and the A and C stocks (reconstituted as Common Stock), voting as one class, would elect all directors under all conditions.
"In addition to the foregoing changes in the capital stock of the Company, the Directors propose and recommend that the capital of the Company, represented by its stock without par value, be reduced from $42,213,335 to $24,420,000. This reduction of $17,793,355, which will not affect any stockholders' proportionate interest in the assets of the Company, will be transferred from capital account to capital surplus. A substantial portion of such capital surplus will be utilized in connection with certain adjustments in the Company's books, namely, adjustments to reduce the book value of certain assets, to set up certain reserves, and to restore to earned surplus certain amounts formerly deducted therefrom; the effect of the latter would be to change earned surplus from a deficit to a credit. All such adjustments have *644 been approved by Messrs. Price, Waterhouse & Co."
How the corporate action was taken. As already stated, at the meeting there was a vote in favor of all of the proposed action, by the combined vote of the holders of more than two-thirds of the shares of the "A" stock and the "B" stock outstanding and entitled to vote, considered as a single class. Plaintiffs attempt to make much of the fact that in the articles of amendment, articles of reduction and stock issuance statement, all of which were sworn to by the appropriate official of the company and filed with the State Tax Commission of Maryland following the meeting of December 15th, 1932, the statement was erroneous as to the actual vote that was taken at that meeting. These documents stated that the vote which was taken in favor of the action reported was in excess of two-thirds of each class, that is, of the "A" and "B" stock, when, as a matter of fact, the actual vote was not in excess of two-thirds of each class, although it was in excess of two-thirds of the outstanding shares of the "A" and "B" stock, considered as a single class.
The secretary of the company gave the following explanation for this inconsistency: At the meeting, there were a large number of proxies as well as a number of stockholders who attended in person. The first tabulation of the voting indicated that the action as reported was voted for by two-thirds of Class "A" stockholders and also by two-thirds of Class "B" stockholders, tabulated separately. Upon review, however, of the tabulation about a week later, after the secretary had returned to the Dayton office of the company, he found that, as a matter of fact, while there was a favorable vote by more than two-thirds of the Class "B" stockholders, such vote by the Class "A" stockholders did not exceed 62%, that is, it was less than two-thirds. He then undertook to apprise counsel of the error in the original tabulation, but meanwhile the formal documents, fully executed, containing the erroneous statement, had been placed in counsel's hands, who had, in turn, filed them with the State Tax Commission of Maryland. The secretary thereupon suggested to counsel that under the circumstances it was probably appropriate to file an amendment to the documents, but the secretary was advised by counsel that such did not seem to be necessary because, although the statement in the documents was not strictly correct, the vote had, in fact, been more than enough to satisfy all legal requirements under the Maryland law and under the charter, and thereupon the question of filing an amendment was dropped.
Since it is true that both the Maryland law and the company's charter expressly provided, as shown by provisions hereinafter quoted, that notwithstanding a stated requirement for any action to be taken or authorized by the affirmative vote of the holders of a majority or other designated proportion of the shares of each class, such action shall be effective and valid if taken or authorized by vote of the majority of the board of directors together with the vote of the holders of two-thirds of the outstanding shares of the different classes considered as a single class, we conclude that no importance attaches to the error in the statements as filed, particularly since there is not the slightest evidence that there was any intentional misrepresentation. While it would have been better to have corrected the mistake on the records of the Tax Commission after it was discovered, the failure to do so may properly be treated as an error of judgment only on the part of counsel rather than on the part of company officials, and not fraught with any bad intent; and since the correction would not have altered the legal effect of the meeting, it is idle to attempt to make the mistake appear as other than an entirely inadvertent, inconsequential one.
The authority by statute and charter for the corporate action taken. An examination of the Maryland corporation law makes it clear that complete statutory authority existed, at the time, for taking the corporate action with respect to the company's recapitalization that was taken. Section 28 of Article 23 of the Maryland Code in force at the time when the company was formed, specifically authorizes amendments "changing the terms of" outstanding stock where there is "a reservation in the charter of the right to make such amendment." So much of this section as is pertinent to the present inquiry provides as follows: "Every corporation of this State, heretofore or hereafter incorporated, may from time to time and in the manner hereinafter provided, amend its charter and thereby accomplish any one or more of the following objects:
* * * * * * *
the classification or reclassification of all or any part of the capital stock; and the making *645 of any other amendment of the charter that may be desired, provided that such amendment shall contain only such provisions as it would be lawful or proper to insert in an original certificate of incorporation made at the time of making such amendment. No amendment of the charter of a corporation shall be valid which changes the terms of any of the outstanding stock by classification, reclassification or otherwise, in the absence of a reservation in the charter of the right to make such amendment, unless such change in the terms thereof shall have been authorized by the holders of all of such stock at the time outstanding, by vote at a meeting or in writing with or without a meeting; and in the case of any such change of terms of outstanding stock, the articles of amendment shall, in addition, to other matters required by law, affirmatively set forth that the holders of such stock have duly authorized such change of terms. The word `terms' as used in this section in reference to stock is intended to mean only the contract rights of the holders thereof as expressed in the charter and shall be so construed." Also, Section 23 of Article 23 (Supp.1935) provides that the charter may authorize any such action to be taken by the affirmative vote of a majority of all the shares of all classes of stock in the aggregate outstanding and entitled to vote thereon. Article 7th of the charter of the company as originally filed, and pursuant to which all of the company's stock had been issued, expressly provided, upon the vote of a majority of the board of directors and of the holders of two-thirds of the outstanding shares of the common "A" stock and the common "B" stock considered as a single class, for "one or more additional classes of stock, with such designations, preferences, voting powers, restrictions and qualifications as may be determined or authorized by such vote, which may be the same as or different from the designations, preferences, voting powers, restrictions and qualifications of the classes of stock of the corporation then authorized or issued and outstanding, * * *".
Clearly, this right to issue such new class of stock formed a part of the contract with every stockholder of the company, and could be exercised provided the prescribed number of favorable votes was obtained. Furthermore, Article 11 of the charter read as follows: "Notwithstanding any provisions of law now or hereafter in effect requiring any action to be taken or authorized by the affirmative vote of the holders of a majority or other designated proportion of the shares or of the shares of each class, or otherwise to be taken or authorized by vote of the stockholders, such action shall be effective and valid if taken or authorized by vote of a majority of the Board of Directors, together with the vote of the holders of two-thirds of the outstanding shares of the Common A Stock and the Common B Stock, considered as a single class, except as otherwise provided in the Charter." Thus, it will be seen that Articles 7 and 11 of the charter, the latter article being, in effect, a repetition of the provision of Section 23 of Article 23 of the Maryland law above referred to, authorized the adoption of the amendments by the combined vote of the holders of two-thirds of the shares of the "A" stock and of the "B" stock outstanding and entitled to vote, considered as a single class. Such vote was actually received and, therefore, the action taken was entirely in accordance with the statutory and charter requirements.
Plaintiffs, however, contend that such is not true, since the recapitalization plan included the cancellation of accrued dividends on the "A" stock. Such, it is alleged, was not authorized by the terms of the statute or by the reservation in the company's charter just referred to; and that, therefore, such could be validly accomplished only by unanimous consent of the stockholders affected. This precise question, as affected by the Maryland statute, has apparently never been decided or considered in a reported decision of the Maryland Court of Appeals, and also, as far as we are aware, this is the first time it has been before a Federal Court, although the same question, as affected by the statutes of some other States, has been the subject of considerable litigation in those other jurisdictions, notably New York, New Jersey and Delaware, and has been decided favorably to the dissenting stockholders. However, since the statutes of those other States are less broad than the Maryland statute, the decisions in those States are not controlling here. See especially Breslav v. New York & Queens Electric Light & Power Co., 249 App.Div. 181, 291 N.Y.S. 932; Id., 273 N. Y. 593, 7 N.E.2d 708; Morris v. American Public Utilities Co., 14 Del.Ch. 136, 122 A. 696; Keller v. Wilson & Co., Del.Sup., 190 A. 115; Lonsdale Securities Corporation v. International Mercantile Marine Co., 101 N.J.Eq. 554, 139 A. 50; but see Harr v. Pioneer Mechanical Corp., 2 Cir., 65 F.2d *646 332, certiorari denied 290 U.S. 673, 54 S.Ct. 92, 78 L.Ed. 581. See also 1 Md.Law Review 254.
As we have seen, the Maryland statute expressly authorizes the insertion, by amendment, of any provision that might, at the time of the amendment, have been inserted in an original certificate of incorporation. Clearly, the disputed provision is of such type. Further, the Maryland statute expressly authorizes any amendment "which changes the terms of any of the outstanding stock by classification, reclassification or otherwise" (italics inserted); defines the word "terms" as meaning contract rights of stockholders under the charter; and the unanimous consent requirement of the statute is expressly made inoperative when the charter contains an appropriate reservation, which the charter before us does contain. Thus, whether we treat as vested or not see Harr v. Pioneer Mechanical Corp., supra the right to accrued dividends, it is unquestionably a preferential "contract right," and, therefore, is embraced within the express provision of the Maryland statute defining the rights that may be abrogated, and in what manner.
The circumstances which led up to the recapitalization refute any conspiracy to deceive or to injure the "A" stockholders, or to unfairly destroy or modify valuable potential rights which they as stockholders had with respect to the assets and earnings, and to share in the administrative control of the company. Of the 400,000 originally authorized issue of "B" shares, 204,328, that is, more than a majority were issued to Frederick B. Patterson, son of John H. Patterson, the founder of the business, who died in 1922. Thereafter, Frederick B. Patterson transferred these shares to a personal holding company of which he owned all the stock, known as the Far Hills Company. Thus, until the stockholders meeting of 1932, this stock was entitled to elect a majority of the board of directors who, in turn, pursuant to the by laws, elected the principal officers of the company, with the result that less than 13% of the company's entire capital stock so held by a personal holding company was in a position to control the company and its policies.
In the fall of 1931, Mr. Edward A. Deeds, who had been executive head of the company under Mr. John H. Patterson but had severed his connection with it in 1916, suggested an elimination of the two classes of stock, but no concrete action was then taken. The desirability of such a change was accentuated by the fact that some time in 1930 Mr. Frederick B. Patterson had, through his control of the Far Hills Company, caused the 204,328 "B" shares to be pledged with his sister, Mrs. Judah, who had threatened to dispose of the stock to unfriendly interests. The situation was further aggravated by the fact that the stock of the Far Hills Company itself, which owned the equity in these "B" shares, had been transferred by Mr. Frederick B. Patterson in November, 1932, to his wife, for a valuable consideration. There is no evidence whatsoever that the proposal to eliminate the "B" shares and the creation of a single class of common stock originated with the "B" stockholders or their representatives. Likewise, it is uncontradicted that Mrs. Patterson and Mrs. Judah were not interested when this plan was first proposed in the fall of 1931; that the Board of Directors of the company that proposed it had been elected at the annual meeting in April, 1932, at which the "A" and "B" shares had equal voting rights, and that of the eleven directors on that Board, only two, Messrs. Allyn and Haswell, held any "B" stock. Deeds had a personal interest in the "A" stock only. Neither Patterson, Mrs. Judah, Allyn nor Haswell can be said to have conspired to defeat the interests of the "A" stockholders, because the uncontradicted evidence is to the effect that they were not in favor of the plan, and that real difficulty was experienced in obtaining their acquiescence.
In substance, the primary argument of plaintiffs is, as has already been explained, that dividends, erroneously stated as amounting to approximately $7,000,000 but actually amounting to $5,801,250 would, had the plan not gone through, been payable on the class "A" stock, before any could be paid on the class "B" stock; that it was improbable that dividends on either class would be paid; and that, when this arrears of dividends on the "A" stock was written off and there was issued, in lieu thereof, "A" shares equal to 20% of the "A" shareholders' holding at that time, this was in fraud of their interests. We have already fully indicated why we believe what was done was of a character permitted both by statute and by the company's charter. Now let us consider what, by virtue of the new capital structure, the class "B" stockholders lost, and what, if anything, the class "A" stockholders gained.
*647 Class "B" stockholders lost (1) the right to receive dividends at the rate of $3 after the payment of similar dividends on the class "A" stock, and thereafter to share equally with the "A" stock; (2) voting control when payment of dividends on the "A" stock was not in arrears; and (3) an interest in somewhat less than one-fourth of the assets of the company upon dissolution, without regard to any dividends accumulated and unpaid on the "A" stock, in return for which they received approximately a one-eighth interest in dividends, distribution on dissolution and voting power. On their part, the "A" stockholders had their interest in the assets of the company proportionately increased by (a) the distribution of the 238,000 shares of "A" stock, and (b) by the substitution of 200,000 shares of "C" stock for the 400,000 shares of "B" stock. In other words, before these changes took place, the "A" stock represented less than 75%, and the "B" stock represented more than 25% of the total outstanding stock of the company; whereas, after these changes had taken place, and after all the stock had been merged into one single class of common stock, the stock represented by the holdings of the former "A" stockholders constituted 87% of the total, and the holdings of the former "B" stockholders less than 13%. Furthermore, prior to the new capitalization, the "B" stock participated equally with the "A" stock, share for share, on dissolution, irrespective of unpaid dividends on the latter; and in the absence of dissolution, if there were no arrears in dividends on the "A" stock, the "B" stock was entitled to $3 per share before any further payment could be made on the "A" stock; and the "B" stock participated equally in any additional dividends, as well as being entitled to control of the company. On the other hand, after the changes took place, the common stock represented by the holdings of the former "A" stockholders was entitled to 87% of all dividends declared under all circumstances and the holders of this stock controlled the election of directors and thereby the entire management of the company. Therefore, it is a direct contradiction of the true state of affairs to say that the "A" stockholders were not actually benefited by the changes that took place as a result of the new capital structure.
Another group of persons acting as directors under precisely the same circumstances might have voted to recommend a different plan to their stockholders. Further, it may be assumed that such plan indeed several different plans might have been fair and feasible, and perhaps more favorable to the "A" stockholders. However, this proves nothing from the legal aspect. It is not the function of a court of equity to attempt to substitute its judgment for that of the persons who are lawfully in control of a corporation's affairs, once it has determined that their conduct is neither ultra vires, fraudulent, illegal, nor grossly negligent. See Shaw v. Davis, 78 Md. 308, 28 A. 619, 23 L.R.A. 294; Matthews v. Headley Chocolate Co., 130 Md. 523, 100 A. 645; Homer v. Crown Cork & Seal Co., 155 Md. 66, 141 A. 425.
The validity of the issuance of the 238,000 "A" shares is not open to question by the present plaintiffs because, as determined by this court's previous decision, of the absence of the holders of those shares as parties to this proceeding. Parenthetically, however, we point out that the issuance of this stock was duly and fully noted to stockholders, and its issuance was effected by the requisite vote. It was merely a split-up that was entirely consonant with the Maryland corporation laws and the charter of the company. See Public Service Commission v. Consolidated Gas Electric Light & Power Co., 148 Md. 90, 129 A. 22.
Likewise, the reduction in the amount of the total issued capital stock which resulted from the plan or recapitalization was fully authorized by law, and adopted by vote which was in accordance therewith. The amount of issued capital stock has no inherent relation to the value of the assets of the company issuing the stock. That is to say, an increase or decrease in the amount issued has necessarily no bearing upon the actual value of the shares of stock, or of the value of the assets behind those shares. Thus, the reduction which took place in the present case involved no parting with assets. This is demonstrated by the simple example suggested by counsel for the company, namely, if the company had been liquidated on December 14th, 1932, that is just prior to the meeting of stockholders or on December 20th, 1932, when the articles of reduction became effective, the amount of assets available for distribution to stockholders would (except, of course, for changes in the ordinary course of business) have been the same on either date; the "worth" of the company not being affected in any *648 sense by this corporate procedure. The reduction in the capital stock merely created a capital surplus against which proper charges might be made. It was not used as a source of dividend payments.
Since we find that the 1932 recapitalization plan was both authorized by the necessary vote of stockholders, and carried out in entire accordance with the law, it becomes unnecessary to give more than passing consideration to the point, also stressed by defendants, that even though there had been irregularities in the action taken, the relief now sought cannot be granted in the very nature of things. It is contended that all stockholders, other than the plaintiffs, are barred by delay and the acceptance of dividends under the recapitalization; that the plaintiffs themselves are barred by their own laches, by their failure to return the "A" stock received by reason of the split-up, and by their absence of good faith; and that all stockholders, including the plaintiffs, have, by their delay, followed by the changes in ownership that have taken place with respect to the stock here in issue, contributed toward bringing about a situation in which a court of equity is without power to grant any relief. But, as just stated, it becomes unnecessary to rest our decision upon any of these grounds, tenable though they may be.
The Deeds Option.
We now turn to a consideration of the second feature of the case, namely, the option given to Edward A. Deeds which is attacked by the plaintiffs on grounds which may be summarized as follows: (1) That it was granted in violation of the requirements of the Maryland law and the company's charter; and (2) that it was the result of an unlawful conspiracy in derogation of stockholders' rights and that, if not annulled, will result in waste or spoliation of the company's assets.
The option agreement is dated September 16th, 1932, and was given to Edward A. Deeds pursuant to a resolution adopted by the company's board of directors, at a meeting held on April 22nd, 1932, after having been duly called. About a year and a half prior to the time it was given, Mr. Deeds had been re-employed by the company, he having been previously associated with it as follows: In 1899-1901 as plant engineer, at the age of 25. After an absence of about two years, during which he was engaged in plant designing and management for the Shredded Wheat Company, he returned to the National Cash Register Company as second assistant general manager, that is to say, third in command, Mr. John H. Patterson, the founder, being president and general manager, and Mr. Roy Chalmers, first assistant general manager. In this latter capacity he remained with the company until 1915, becoming, in 1909, after Mr. Chalmers' resignation, first assistant general manager. While retaining the title of president and general manager, Mr. John H. Patterson put Colonel Deeds to a very large extent in control of the entire affairs of the company, and for the three or four years immediately preceding his leaving the company, which he did in 1916, Colonel Deeds was being paid a salary of $72,000 a year. Concurrently, he devoted a large amount of time and effort to the development of the Delco Company, and related businesses, and this fact, plus the fact that, following the very disastrous flood in the Miami Valley in 1913, he had accepted appointment as president and director of the Miami Conservancy District, led to his resigning his position with the Cash Register Company in 1916.
Summarized, the agreement gave to Colonel Deeds for five years, commencing July 17th, 1932, the option to purchase at $9.80 a share, with interest at the rate of 4% from July 17th, 1932, to the date of payment, all or any part of 50,000 shares of class "A" common stock of the company, or a like number of shares of any class into which this stock might be converted. As to 10,000 shares, the option was exercisable immediately upon its execution. During the year beginning July 17th, 1932, and in each of the succeeding years, an additional 10,000 shares became subject to the option, and it was expressly provided that the option should be cumulative. Subject to certain provisions not material here, it was further provided that the option should become null and void at any time that Colonel Deeds should cease to be either an officer or director of the company. As a result of the recapitalization of the company in 1932, hereinbefore considered, the option was automatically modified so as to increase the number of shares covered by it to 60,000, and the option price per share was correspondingly reduced.
Colonel Deeds first exercised the option on December 26th, 1933, when he purchased 24,000 shares. The same number were *649 purchased on August 30th, 1935, and the remaining 12,000 shares on July 31st, 1936. The total amount paid to the company represented the actual cost of the shares to it, plus interest less dividends declared on the stock, and plus the sum of $130.32 representing profit to the company. Colonel Deeds still holds all of the stock.
Taking up the first contention of the plaintiffs above referred to, namely, that the option was given in violation of both statutory and charter requirements, one phase of this contention is that the shares covered by the option agreement were acquired by the company out of its capital, reliance being had upon Article 23, § 50, of the Maryland Code (Supp.1935), which forbids the purchase by any domestic corporation of its own shares, unless its assets remaining immediately after such purchase shall be not less than the debts of the corporation, plus the amount of its issued capital stock, and which further provides that if any such purchase or redemption is made, those receiving payment therefor shall be liable to the corporation or its receiver for its debts existing at the time of such payments. However, there is no evidence that there was any impairment of the company's capital, and we find nothing in the provisions of the Maryland law above summarized, or in any other provisions, or in the company's charter, which prohibits the purchase and sale by the company of its own shares, provided such is done for legitimate, corporate purposes. We further find that the steps incident thereto, both with respect to action by directors and stockholders, have been in full compliance with the legal requirements.
Section 50(3) of Article 23 of the Maryland Code in effect at the time provides that a corporation "may purchase shares of its own stock of any class out of its surplus," if authorized so to do either (1) by its charter, or if not by its charter, then (2) by holders of two-thirds of its shares. Section 50(4) provides that any of its shares acquired by purchase, "unless acquired for retirement, may be held by such corporation or sold or otherwise disposed of by it from time to time for its corporate purposes." Paragraph Third 10(d) of the company's charter provides that the company shall have power "to purchase or otherwise acquire, hold, sell, convey or assign, pledge, transfer, or otherwise dispose of, and to reissue, any shares of its own capital stock (so far as may be permitted by law) * * * upon any terms and in any lawful manner." See Reed & Fibre Products Corporation v. Rosenthal, 153 Md. 501, 138 A. 665. As explained in that case, by this statutory provision it became valid and lawful for a corporation to do what had been previously unlawful, namely, to purchase shares of its own stock, provided it was authorized to do so by its charter, as is the case here, or by the vote at a meeting duly called and held of the holders of two-thirds of the shares of each class of stock outstanding.
Another argument advanced in support of plaintiffs' contention that the option agreement violates statutory and charter provisions is that it was given without consideration. However, we find this contention also to be unsupported by the facts. The consideration was the promise which Colonel Deeds made to assume the position of chairman of the board of directors and of the executive committee of the company, and to undertake the duties incident to those offices.
Again, it is contended that the option agreement is invalid because in violation of Article 23, § 41(6), of the Maryland Code (Supp.1935) which prohibits the issuance of stock for future services. However, in the present instance, there was no issuance of stock for such services, but merely the application of stock already issued and held in the treasury of the company. Such is not prohibited. See France, Principles of Corporation Law, 2nd Ed. Sec. 94. Furthermore, the option was not, in fact, an agreement for the delivery of stock for future services in the general acceptation of the words "future services," but was, in fact, a contract providing for the future delivery of stock, if and when the rendering of particular services had periodically been completed. That is to say, at the time when the agreement was actually entered into, Colonel Deeds had been serving for sixteen months, and, therefore, as to 10,000 (subsequently increased to 12,000 by the stock split-up) the option was exercisable immediately for completed services. Likewise, in each of the four succeeding years, an additional 12,000 shares became subject to the option, in consideration of services over like periods. As a matter of fact, there is no prohibition in the Maryland corporation law against the future issuance of stock upon the completion of services to be rendered. See Mas Patent Bottle Corp. v. *650 Cox, 163 Md. 176, 161 A. 243; Reed & Fibre Products Corp. v. Rosenthal, supra.
Turning again to the charter of the company, the plaintiffs contend that the option agreement violated paragraph 17 which authorizes the company to establish "a plan or plans for profit-sharing under which officers and employees as such, by bonuses or in other form of distributions, shall share in the profits of the corporation," but prohibits the establishment of any such plan except upon vote of a majority of the board of directors, and of two-thirds of the outstanding stock considered as a single class, voting at a meeting called for that purpose.
We find that this provision has no application, either by its language or by reasonable implication, to the present situation. If it be held to apply this would be tantamount to saying that the corporation was forbidden, without complying with the provisions of this paragraph, to make separate agreements with individual officers by way of compensation for their services whenever such agreement contemplated part payment in stock of the company, although, as we have just seen, this form of payment is elsewhere authorized in the company's charter and by the Maryland law. It may be that if the company were adopting a plan common to its officers or employees, or to certain groups of its officers or employees whereby they would be given a right to subscribe, under certain conditions and over a certain period of time, to the company's stock, such might be considered as a "form of distribution" whereby such officers or employees would "share in the profits of the corporation," although this question we do not have to decide. We interpret paragraph 17 as contemplating by the language employed, the granting of something in the nature of a gratuity or bonus for past services, and that to more than one officer or employee, neither of which conditions exists in the present case.
Turning to the second contention of the plaintiffs above stated, namely, that the granting of the Deeds option was the result of an unlawful conspiracy on the part of its dominating directors, in derogation of the rights of the company's stockholders which, if not terminated, would result in waste or spoliation of the company's assets, we find that it, also has no basis in fact. Throughout the bill of complaint, and the arguments and briefs of counsel for the plaintiffs, is a constant, vituperative repetition of the contention that the option was part and parcel of a carefully concealed, fraudulent conspiracy to divert the assets of the company into the possession of its directors and the "B" stockholders, as part of the 1932 recapitalization. We agree with counsel for defendants that plaintiffs' counsel, in an effort to support this contention, "Has substituted abuse for reasoning and adjectives for record references, and that far from being sustained", it is "directly disproved by the evidence."
As appears from the earlier part of this opinion, we find nothing unlawful or improper in the recapitalization of 1932, or in the methods by which the same was brought about. It is equally true that the Deeds option and the proposed recapitalization were entirely separate and distinct, the former being under consideration by the board of directors long before the latter was formulated, and it was not until long after the option had been formally approved by the board of directors, and more than a month after it had been granted, that the plan of recapitalization was formulated.
Plaintiffs contend that the option agreement is in and of itself fraudulent and a waste or spoliation of the company's assets because at the time it was effective, Colonel Deeds was receiving from the company a salary of $100,000 a year; that this salary in itself was exorbitant, and that to add anything to it, such as the right to purchase the company's shares even though such right might be of speculative value, depending upon the future prosperity of the company, was in and of itself utterly wasteful and a contradiction of the contention that it was supported by valuable consideration. Also, the point is emphasized that in addition to receiving the allegedly exorbitant salary from the company, he received, for three or four years after his reassociation with it, $50,000 a year from the General Sugar Company (later the Vertientes-Camaguey Sugar Company), as its president, and $36,000 from the Niles Bement Company as chairman of its board; that he never disclosed to the other officers and directors of the National Cash Register Company that he was so employed, and that this pyramiding of employment in high places caused him to give far less time *651 and effort to the Cash Register Company's affairs than he had impliedly, if not expressly, agreed to give, and should have given, and should still be giving. Mr. Deeds' present salary from each of these companies is $25,000 a year.
First, it should be stated that there is nothing in the record to indicate that Colonel Deeds concealed or in any way misrepresented the character or extent of his connection with any other companies or the compensation that he was receiving from them. While it is true the record does not disclose that his salaries from the two companies above referred to, admittedly large, were specifically discussed with him by members of the board of the Cash Register Company, the record is replete with evidence that his other business connections were discussed, and indeed, it was because of the other important executive positions which Colonel Deeds held that the board of the Cash Register Company felt that he was all the more to be desired.
Plaintiffs' contention is in effect that the option agreement with Deeds has amounted to an excessive bonus payment having no relation to the value of the services for which it was stated to be given that it was in reality a gift, and that the majority stockholders and a fortiori the directors, have no power to give away corporate property against the protest of the minority. That neither majority stockholders nor directors have such power of gift is a correct statement of the law. Rogers v. Hill, 289 U.S. 582, 591, 592, 53 S.Ct. 731, 77 L.Ed. 1385, 88 A.L.R. 744; Wight v. Heublein, 4 Cir., 238 F. 321; Koplar v. Warner Bros. Pictures, D.C., 19 F.Supp. 173; Matthews v. Headley Choc. Co., 130 Md. 523, 100 A. 645; Seitz v. Union Brass & Metal Mfg. Co., 152 Minn. 460, 189 N.W. 586, 27 A.L.R. 293. See also Ransome Concrete Machine Co. v. Moody, 2 Cir., 282 F. 29; Presidio Mining Co. v. Overton, 9 Cir., 261 F. 933; Francis v. Brigham-Hopkins Co., 108 Md. 233, 70 A. 95. But the facts here are not as claimed.
The rule that must control in the present situation is succinctly stated in Wight v. Heublein, supra, a decision of the Fourth Circuit Court of Appeals, as follows, 238 F. page 324: "It is obviously not the province of a court of equity to act as the general manager of a corporation or to assume the regulation of its internal affairs. If the chosen directors, without interests in conflict with the interest of stockholders, act in good faith in fixing salaries or incurring other expenses, their judgment will not ordinarily be reviewed by the courts, however unwise or mistaken it may appear; but this is far from saying that equity will refuse to redress the wrong done to a stockholder by the action or policy of directors, whether in voting themselves excessive salaries or otherwise, which operates to their own personal advantage, without any corresponding benefit to the corporation under their control."
To the same effect is Matthews v. Headley Chocolate Co., supra, the court there saying, 130 Md. at page 535, 100 A. at page 650: "The court would not be authorized to substitute its judgment for theirs [the directors] as to what are proper salaries, provided they acted in good faith within their powers, and the salaries fixed by them were not clearly excessive."
In Seitz v. Union Brass & Metal Mfg. Co., supra, it was said, 189 N.W. at page 587: "If the officers, acting as they do in a fiduciary capacity, fix exorbitant and unreasonable salaries so as to absorb earnings which should go in dividends or remain with the company as surplus, they are not exercising the fidelity which the law requires and a court of equity will give relief at the suit of a minority stockholder by compelling restoration. In determining whether salaries are so excessive and unreasonable that there should be a restoration, courts proceed with some caution. An intolerable condition might result if the courts should too lightly undertake the fixing of salaries at the suit of dissatisfied stockholders. An issue as to the reasonable value of the services of officers is easily made. It is not intended that courts shall be called upon to make a yearly audit and adjust salaries. The dissenting stockholder should come into court with proof of wrongdoing or oppression, and should have more than a claim based on mere differences of opinion upon the question whether equal services could have been procured for somewhat less. Were it otherwise efficient executives, able to command in competition large salaries, risking their capital on the faith of control and a steady employment, would find themselves and their capital periled by the uncertain view which a court might take. The right of majority control must be given effect, *652 and the minority cannot, through the courts, interfere with an honest and fair majority policy."
A review of Colonel Deeds' record and achievements, including his earlier services with the company, satisfies the court that the situation presented is not one which this court should undertake to disturb. At the time the option was given, Colonel Deeds appears to have attained a position in the industrial world which apparently enabled him to name his own price. The board of directors apparently thought that his services were indispensable to the future prosperity of the company. There is a good deal to justify this conclusion, but whether it be entirely sound or not is beside the sole question which this court is permitted to rule upon, that is, whether the cumulative option to purchase, at cost to the company, with interest at the rate of 4% to date of payment, 10,000 shares of its treasury stock during each year of his services as chairman of its board and of its executive committee, which the directors agreed Colonel Deeds should have as supplementary to his salary of $100,000 a year, was so exorbitant as to preclude a finding of good faith and to amount to waste of the company's assets on the part of the directors in making such an agreement.
The National Cash Register Company is the largest manufacturer of cash registers and accounting machines in the world. It produces approximately 90% of all such devices manufactured in the United States. It has a place of business in practically every large city in this country, and in nearly every other civilized country, employing in all, approximately 18,000 people. It has factories in Dayton, Ohio, Germany and Japan. For the year 1937, its gross sales were in excess of $51,000,000. Its shares of stock are owned by approximately 19,000 persons. John H. Patterson, founder of the company, died in 1922, and was then succeeded as president and chairman of the board by his son, Frederick B. Patterson. Under him was a general manager, Mr. Barringer and a sales manager, Mr. Steffey, who were paid at the rate of $150,000 and $72,000 a year, respectively. Mr. Patterson was then receiving $144,000 a year.
In 1931, during the depression, dissatisfaction arose with these officials, resulting in their resignation in the same year. At that time, the board of directors of the company consisted of eleven members, of whom the holders of the "B" stock were entitled to select six, and the holders of the "A" stock the remaining five. A majority of the so called "B" directors were executive officers of the company. These "B" directors, at the invitation of the "A" directors, recommended that Colonel Deeds be re-employed to manage the company's affairs. His previous association with the company has already been set forth in this opinion. In 1916, when he severed his connection with the company, he had been paid a salary on the basis of $72,000 a year, although devoting only approximately one-half of his time to the business of the company, and earning, in addition, in excess of $100,000 from other industrial enterprises with which he was connected.
Colonel Deeds' availability was investigated in 1931. He was interviewed by two of the "B" directors, Messrs. Patterson and Kuhns, president and secretary, respectively, of the company. Following various conferences between some of the "B" and the "A" directors, a meeting of the board was had on May 14th, 1931, after being duly called, at which meeting a committee of three directors was appointed and given authority to offer to Colonel Deeds a salary of $100,000 a year, together with some form of participation in the stock of the company. After the committee had conferred with Colonel Deeds, he agreed to accept at the salary mentioned, with the understanding that the matter of additional compensation in the form of stock purchase would be later determined. On May 15th, 1931, the board of directors held a meeting and elected Colonel Deeds chairman of the board and of the executive committee. At this meeting the special committee, heretofore referred to, reported that an understanding had been reached with Colonel Deeds with regard to his compensation to the effect that it "should be at the rate of $100,000 for the current year, with the further understanding that the committee would recommend that a plan for additional compensation be submitted to the board at a later date, but with no definite commitment as to the action of the Board thereon."
Although at a subsequent meeting of the board, held on July 17th, 1931, it appears that a special committee was again appointed for the purpose of giving consideration to the matter of additional compensation to Colonel Deeds; and although *653 it further appears that this committee met, no report was made or action taken by it. Finally, at a meeting on April 22nd, 1932, following the stockholders annual meeting which was the first meeting of the newly elected board of directors, the matter was brought to a head through the adoption of a resolution approving a plan of additional compensation to Colonel Deeds, embodying the purchase by the company of 50,000 shares of its common "A" stock, and the granting to Colonel Deeds of the option to purchase this stock at an average cost price, in installments over a period of five years. The chairman of the board was authorized to appoint a committee of three to work out the details of the arrangement, with power to act, and the executive officers were authorized to execute on behalf of the company a contract in the form recommended by the committee. All members of the board of directors who were present nine in number voted for this resolution, except Colonel Deeds, who did not vote. Two absent members at a subsequent meeting also approved the action taken. Instructions were then given to the firm of Dillon-Reed & Company to purchase, on the open market, 50,000 shares of the company's "A" stock and it was paid for by the treasurer of the company, costing $489,869.58. These payments were completed in August, 1932, and on September 16th of the same year, the option agreement, after preparation by the company's counsel, was formally executed.
There was an effort on behalf of the plaintiffs to make much of the fact that Colonel Deeds gave only part of his time approximately four days a week to the Cash Register Company. This is stressed as further evidence of the excessive character of his salary of $100,000, apart from the additional compensation that he was receiving, and the value to him of the option agreement. However, Colonel Deeds had, in the course of his previous connection with the company, served on a part time basis, in fact, was only giving one-half of his time to the company, and yet its directors then felt, although his prominence and reputation were not as fully established as they were in 1932, that his services were worth $72,000 a year. It is to be noted that this court is not now being asked to void or to reduce the present salary to Colonel Deeds. In fact, if such relief were sought, this court, in the present proceeding which is one in rem, would be without jurisdiction to grant it. However, the alleged excessiveness of this salary is stressed as an argument that since, as contended, Colonel Deeds is already greatly over-paid by reason of this and his additional compensation from other companies, a fortiori he should not be allowed any opportunity to profit further from the company.
It may be conceded that, prima facie, judged by appropriate standards of the worth of the services of any individual for any particular industrial executive position, a salary of $100,000 a year appears to the average person, of average business experience and responsibilities, to be more than liberal compensation. However, courts are not permitted to be controlled by this test any more than by what the average judge, familiar with cases of the present kind, might himself conclude to be adequate compensation. We must distinguish between compensation that is actually wasteful and that which is merely excessive. The former is unlawful, the latter is not. The former is the result of a failure to relate the amount of compensation to the needs of the particular situation by any recognized business practices, honestly, even though unwisely adopted, namely, the result of bad faith, or of a total neglect of or indifference to such practices. Excessive compensation results from poor judgment, not necessarily from anything else. If the rule were otherwise, the result would be destruction of autonomy in private enterprise to a degree that would render such enterprise no longer private; personal initiative and its just rewards would disappear, and this would undermine the very basis upon which our economic life, with its constitutional guaranties, is founded, and upon which our democratic form of government depends. Of course, directors should not be permitted to abuse the power that is entrusted to them by the stockholders. The stockholders, in the very nature of things, must vest in the directors a vast amount of discretion in matters of this kind, and often cannot, without the aid of the courts, prevent or remedy abuse of this discretion. But whether there has actually resulted such abuse as will justify the intervention of a court, depends upon all the facts and circumstances in each particular case, and what may well be considered an abuse in one instance would, of course, not be so in another. As was said in Koplar v. Warner Bros. Pictures, supra, 19 F.Supp. *654 at page 188: "Directors have the power to award just compensation. That power should be used, not abused. Fair human requirements should set some limits to salaries. Extraordinary talent is not acquired. If it were, it would not be extraordinary. Doubtless it is an endowment which the holder should not place on the auction block."
What the point would be beyond which, in the present case, payments in any form might properly be said to amount to a clear abuse of the discretion vested in directors, and to amount to waste, we are not called upon to decide. Suffice it to say we are not satisfied that it has been over-stepped in the present case as a result of the option to Colonel Deeds. At the same directors' meeting at which the option was authorized, the president of the company, Mr. F. B. Patterson, was voted an annual salary of $115,200; and the plaintiffs have introduced no evidence of corresponding compensation paid by other large corporations, indicating that what Deeds was voted was greatly in excess of that paid in other cases. Furthermore, it is to be borne in mind that the acceptance of this option by Colonel Deeds was in no sense a guaranty of profit in any amount. On the contrary, there was inherent in the agreement a large element of speculation. Colonel Deeds assumed the risk of loss loss of a very substantial character. He paid approximately $490,000 for the shares under the option agreement. Since the purchase the market price of the stock is stated to have been as high as $38 a share. 50,000 shares at this price would be $1,900,000, or a profit of $1,410,000 over the cost to Colonel Deeds, on the assumption that he might have disposed of the stock at this figure, or that it may ultimately be that high or higher, again. However, the stock has been subject to great fluctuation and the latest quotations put in evidence in the case (those for June, 1938) show that while it reached a high of 20 7/8 per share, it reached a low of 15½, and that in 1933, at the so-called peak of the depression, it went as low as 5 1/8 . It is reasonable to assume, as the directors intended, the rise or fall of the company's stock would reflect Colonel Deeds' ability to transform a large net operating loss into a much larger net operating profit. This he has apparently done at least this result has occurred, and as executive head of the company he, first and foremost, is entitled to credit for this accomplishment. Throughout the extended depression that has affected all industry for the past seven or eight years, the uncontradicted evidence is that under the management of Colonel Deeds the company's business has been running considerably ahead of the general trend of business in this country. In 1935 the Board of Directors apparently attributed this fact largely to Colonel Deeds' executive ability because in that year he was made president, as well as chairman of the board, and the former president, Mr. F. B. Patterson, became vice-president. Colonel Deeds' salary was not, then, nor has it since been, increased. Mr. Patterson's salary was then decreased to $60,000, and subsequently to $25,000, where it remains.
A resume of the net earnings of the company, in round figures, will be further illustrative and corroborative of the position now taken by this court. The net earnings of the company from 1925 to 1937, inclusive, were as follows: 1925 in excess of $6,000,000; 1926 in excess of $6,500,000; 1927 slightly more than $7,000,000; 1928 in excess of $7,500,000; 1929 in excess of $8,000,000; 1930 in excess of $3,500,000; 1931 slightly more than $800,000; 1932 net operating loss of approximately $3,400,000; 1933 net operating loss of almost $600,000; 1934 net earnings of $1,000,000; 1935 net earnings of $1,500,000; 1936 net earnings of almost $3,000,000, and 1937 of almost $4,000,000.
Finally, it should be noted that the company's annual report for the year ending December 31st, 1932, which was sent to every stockholder, contained a detailed explanation of the terms of the option agreement with Colonel Deeds and the reason for its execution, and plaintiffs admit receiving such copy. Also, the letter to stockholders which the plaintiffs received dated November 19th, 1932, in regard to the proposed recapitalization of the company, made specific reference to the option, in the consolidated balance sheet which accompanied this letter. In spite of these facts, the plaintiffs waited until July 19th, 1934, that is, for approximately a year and a half, before challenging the validity of the option. It is not a sufficient excuse to say that they were not apprised of relevant facts, namely, the amount of the regular salary that Colonel Deeds was receiving from the company, and of the other salaries received from other corporations. There is no evidence that information in this respect was ever *655 sought by the plaintiffs or refused by the company. In the absence of such refusal, obviously the officers and directors of the company cannot be charged with any attempted concealment.
Colonel Deeds still holds all of the stock acquired under the option agreement. In short, it has been fully exercised. Indeed, as to 24,000 shares, Colonel Deeds exercised his option and paid for them, before any complaint was made by the plaintiffs. Nor have there been complaints by any of the other 19,000 shareholders, in spite of the fact that the present proceeding was originally instituted more than four and a half years ago.
Since, for the reasons above stated, this Court reaches the conclusion that the plaintiffs' contentions with respect to the Deeds option are without merit, it becomes unnecessary to consider whether, in view of the limited character of this court's jurisdiction in the present proceeding, plaintiffs could, in any event, be accorded the relief sought. The same is true with respect to the relief sought by the plaintiffs with respect to the recapitalization of the company in 1932, which is dealt with in the first part of this opinion.
Accordingly, the bill of complaint as amended must be dismissed in its entirety. A decree will be signed to this effect. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263157/ | 27 F.Supp. 11 (1939)
SHAPIRO, BERNSTEIN & CO., Inc.,
v.
BRYAN et al.
District Court, S. D. New York.
March 20, 1939.
*12 House, Crossman, Vorhaus & Hemley, of New York City (Joseph Fischer, Alfred Beekman, and Leo J. Rosett, all of New York City, of counsel), for plaintiff.
Hays, St. John, Abramson & Schulman, of New York City (John Schulman and Robert J. Burton, both of New York City, of counsel), for defendant Alfred Bryan.
Austin C. Keough, of New York City (Irving Cohen, of New York City, of counsel), for defendant Famous Music Corporation.
Benjamin Starr, of New York City, for defendants Fred Fisher and Fred Fisher Music Co. Inc.
COXE, District Judge.
This is a motion under Rule 12(b), Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to dismiss the complaint for failure to state a claim upon which relief can be granted.
The suit is for alleged infringement of a renewal copyright of a song entitled "Come Josephine In My Flying Machine" (hereinafter referred to as "Come Josephine").
The following facts are deemed admitted for the purposes of the motion: In and prior to 1910, the defendants Bryan and Fisher were employed by Maurice Shapiro, a music publisher, under written contracts, to write songs. These two defendants wrote the song "Come Josephine" while so employed, and the original copyright therefor was secured by Shapiro on Oct. 18, 1910. Shapiro died in 1911, leaving a widow, Fanny Shapiro, who became the executrix of his will. The Shapiro business, including the copyright of the song "Come Josephine", was thereafter sold by the executrix, and after various mesne assignments, passed on March 20, 1913, to the plaintiff. On Oct. 19, 1937, the plaintiff, claiming as proprietor in a work made for hire, obtained renewal registration of the copyright, and now seeks to restrain the defendants from threatened infringement.
The sole question for decision is whether the plaintiff as assignee of the original copyright was entitled to the renewal registration under Section 23 of the Copyright Act, U.S.C. Title 17, § 23, 17 U.S.C.A. § 23. It is not disputed that Maurice Shapiro was an employer in a case of a work made for hire, and, therefore, entitled to the original copyright. No question is raised, either, regarding the plaintiff's title to the original copyright.
Section 23 of the Copyright Act applies to renewals of copyrights originally secured after July 1, 1909. This section specifies the particular cases in which renewals may be obtained by the "proprietor". It then provides that in all other cases renewals must be procured by the author, if living, or if dead, by the widow, widower or children, or if they be dead, by the author's executors if there be a will, or if not by his next of kin. The portion of the section relating to renewals by the "proprietor" reads as follows: "Provided, That in the case of any posthumous work, or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than an assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright."
Copyright is wholly statutory. Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 28 S.Ct. 722, 52 L.Ed. 1086. The only persons, therefore, who may obtain renewals are the ones specified in the statute. White-Smith Music Pub. Co. v. Goff, 1 Cir., 187 F. 247; Silverman v. Sunrise Pictures Corporation, 2 Cir., 273 F. 909, 19 A.L.R. 289; Fox Film Corp. v. Knowles, 261 U.S. 326, 43 S.Ct. 365, 67 L.Ed. 680. *13 It is generally recognized, also, that the right of renewal is a new grant and not in reality an extension of the original term. White-Smith Pub. Co. v. Goff, supra; Silverman v. Sunrise Pictures Corporation, supra.
Section 23 provides that in the case of "any work copyrighted * * * by an employer for whom such work is made for hire, the proprietor of such copyright" shall be entitled to the renewal. I think the words "proprietor of such copyright" in this connection plainly mean the proprietor at the time of renewal, and not at the time of the original copyright.
The main purpose of the section was to protect the interest of the author where he had any interest. White-Smith Music Pub. Co. v. Goff, supra; 28 Op.Attys. Gen. 162. The cases in which the proprietor was given the right of renewal were, therefore, limited; with some of them there were even qualifications in favor of the author. Thus, in the case of a periodical, cyclopedic or composite work, there was a requirement that the copyright be originally secured by the proprietor; there was also a provision excluding a separately registered contribution. Similarly, with a work copyrighted by a corporation, there was an exception where the corporation was the assignee or licensee of the author. These were all qualifications designed to benefit the author. But with an employer for whom a work had been made for hire, the author had parted with his entire property in the work, and had no interest left to protect. Tobani v. Carl Fischer, Inc., 2 Cir., 98 F.2d 57. There was no reason, therefore, to consider him in connection with a renewal.
The defendants argue that if it had been intended to give the right of renewal to an assignee of an employer, the statute would have said so. They point to Section 8, 17 U.S.C.A. § 8, in support of their argument. This section reads: "The author or proprietor of any work made the subject of copyright by this title, or his executors, administrators, or assigns, shall have copyright for such work * * *".
The situation with respect to an original copyright is, however, quite different from that of a renewal. Here, the question is not whether an assignee is entitled to renewal but what is meant by the words "proprietor of such copyright". The original copyright is property capable of transfer, and I can see no reason to construe the language so as to cut off the right of renewal when a transfer takes place. If the argument of the defendants is sound, the renewal right in the case of an individual employer is completely extinguished by death. This, clearly, gives a corporate employer a considerable advantage over an individual employer, which, I do not believe, was intended. I do not think, either, that there is an analogy to the contingent rights of renewal given to authors. These are generally recognized as incapable of assignment because of their contingent character. Weil on Copyright, p. 365. But even Weil seems to be of the opinion that the rights of renewal reserved to proprietors under Section 23 are assignable along with the copyright itself.
The motion of the defendants to dismiss the complaint, is, therefore, denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263163/ | 27 F.Supp. 915 (1939)
WILSON & CO.
v.
BIRL et al.
No. 158.
District Court, E. D. Pennsylvania.
February 8, 1939.
*916 Joseph S. Conwell and Pepper, Bodine, Stokes & Schoch, all of Philadelphia, Pa., for plaintiff.
Louis F. McCabe, Wm. A. Gray, and Albert J. Bader, all of Philadelphia, Pa., for defendants.
KIRKPATRICK, District Judge.
The prayer for a temporary injunction will be denied.
This case grows out of a labor dispute.
The plaintiff is engaged in the wholesale meat business, with a plant in Philadelphia where it receives, stores and sells meat and certain other agricultural products, and does some processing. Practically all the meat which the plaintiff handles at its Philadelphia plant is shipped to it in interstate commerce, and twenty-five per cent of the products sold by it are delivered to its customers by interstate shipments, mostly in its own delivery trucks.
The defendants are three labor unions, their officers, and certain individuals, members of the unions.
Local 195 includes all but five of the plaintiff's employees in its production and maintenance department. This union is on strike to obtain a closed shop agreement. The specific demand is that the plaintiff discharge the five nonunion employees or compel them to join the union.
Local 107 includes all the plaintiff's chauffeurs, truckers and platform men. It is on strike to assist 195 in obtaining a closed shop agreement. The specific occasion of the strike of 107 was the discharge by the plaintiff of two of its members who refused to handle the plaintiff's products so long as the five nonunion men remained in its employ.
The members of Local 18571 are not employees of the plaintiff, but of a cold storage warehouse, where the plaintiff stores a substantial quantity of its products. This union is not on strike, but its members have refused to handle the plaintiff's products, and the plaintiff is unable to get them from the warehouse. The purpose of this action on the part of 18571 is to assist 195 in obtaining its objective.
There is no proof of any express agreement by word between the defendants, but it clearly appears that there is mutual understanding, combination and concert of action among them, and that it is their common purpose to compel the plaintiff to enter into a closed shop agreement with Local 195.
In general, the means by which the objective of the defendants is sought is inflicting loss upon the plaintiff through as complete suspension of its business as the defendants can accomplish. The defendants are not seeking the total destruction of the plaintiff's business, but are perfectly willing to risk that rather than recede from their position on the closed shop. More specifically, the means used are:
a. A strike; and refusal to handle or move the plaintiff's products.
b. Picketing the plaintiff's place of business.
c. Visiting the plaintiff's customers and requesting them not to accept deliveries of goods or place orders, and threatening them with the picketing of their places of business if they do a threat which, in some cases, has been carried out.
In addition to the foregoing, members of various unions sympathetic with the defendants have refused to handle products of the plaintiff. There is no proof that this is at the request or instigation of the defendants, but there is no doubt that it will cease as soon as this labor dispute is ended.
The defendants' program is almost completely effective. The plaintiff's business has dwindled to a small fraction of its former volume, customers and good will have been lost, and the plaintiff is *917 suffering and will continue to suffer irreparable loss.
In general the program has been carried out in an orderly manner. There have been three or four instances of violence. There is no evidence that these have been authorized or ratified by the unions and there is no evidence that any of the defendants participated in them, except William A. Devlin, William Arbucus, and Peter Barron, the last two of whom have made threats only.
I find that the plaintiff has complied with the requirements of Sec. 8 of the Norris-LaGuardia Act, 29 U.S.C.A. § 108. Negotiations reached an absolute impasse several weeks before the strike, and it is perfectly evident that nothing further can be accomplished by them. It would be senseless to require the plaintiff to go through the form again.
As to the requirements of Sec. 7. The picketing of the plaintiff's plant is being carried on under police supervision and control, and the police appear to have supplied protection against injury to physical property. If the plaintiff is entitled to protection against loss of business through the visitations of the defendants to its customers, then the public officers are either unable or unwilling to furnish adequate protection in this regard.
With the exception of the acts of violence referred to, the labor unions, their officers and members have been clearly shown to have participated in or authorized or ratified the various measures taken by the defendants described above. It is also a fact that greater injury will be inflicted upon the complainants by the denial of the relief asked for than will be inflicted upon the defendants by the granting of the relief.
The complainant has no adequate remedy at law.
The foregoing findings of fact are made so that, if the appellate court reaches a different conclusion as to the right of the plaintiff to an injunction, further proceedings will not be necessary.
The Norris-LaGuardia Act, 29 U.S. C.A. § 101 et seq., was intended to limit drastically the power of the Federal courts to issue injunctions in labor disputes. In fact, it might be said in a general way that the purpose was to put an end to it, except for a residue of jurisdiction necessary for the protection of property against destruction by violence or fraud.
To accomplish the purpose of the Act, Congress enumerated in Sec. 4 various types of conduct as to which jurisdiction to enjoin was taken away. The list covered a wide field of labor conflict activities and impliedly recognized the conduct in question as legitimate measures of offense and defense in labor disputes.
In this enumeration the Act is wholly objective. It is not concerned with the purpose for which the acts are done or with the state of mind of the participants or with any question of intent, expressed or presumed. The law makes no distinction between doing the acts in question with a legal object in view and doing them with an illegal object. See Levering & Garrigues Co. v. Morrin, 2 Cir., 71 F.2d 284. In short, it was an adoption of the philosophy of Justice Brandeis's dissenting opinion in Duplex Printing Press Co. v. Deering, 254 U.S. 443, 41 S.Ct. 172, 183, 65 L.Ed. 349, 16 A.L.R. 196, which condemned the point of view which made conduct actionable "when done for a purpose which a judge considered socially or economically harmful and therefore branded as malicious and unlawful." The only question is whether the acts which the plaintiff seeks to restrain are among those enumerated in Sec. 4 of the Act. If they are, this Court has no power to enjoin them.
Hence, it is immaterial whether the closed shop, plainly the objective of the defendants' program, is, by the law of Pennsylvania, a legal or an illegal end, and, for the same reasons, were it not for the decisions of the Circuit Court of Appeals for this Circuit in Apex Hosiery Co. v. Leader, 3 Cir., 90 F.2d 155 (a matter to be discussed later), I should have said that it was also immaterial whether or not the defendants intended to restrain interstate commerce.
Probably the most effective part of the defendants' program is the following of the plaintiff's delivery trucks to the places of business of various customers and there advising the customers of the existence of the labor dispute, asking them to reject the goods, and threatening them with picketing their places of business if they accepted the deliveries, followed by actual picketing in a few cases where the customers declined to reject the product. *918 This comes within at least some of the definitions of the "secondary boycott."
Sec. 4(e) takes away the power to enjoin "giving publicity to the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling, or by any other method not involving fraud or violence." This language is very broad and contains no restriction as to where the "advertising" and "patrolling" may be carried on except that it must not involve fraud or violence. Neither of these elements appears in this part of the present case.
In view of the clear purpose of the Act to take the Federal courts out of the business of granting injunctions in labor disputes, except where violence and fraud are present a purpose which stands out in almost every paragraph I am of the opinion that Sec. 4(e) prohibits the granting of an injunction against the conduct of the defendants just referred to.
Even if it did not, the result would be the same. If the conduct sought to be restrained is not expressly withdrawn from the Court's jurisdiction, the question remains whether or not it is illegal. That would depend upon the law of Pennsylvania. The Pennsylvania Labor Anti-Injunction Act of 1937, 43 P.S.Pa. § 206a et seq., prohibits the granting of injunctions against picketing "any public street or place where any person or persons may lawfully be," and thus, by removing the power of the courts to act, recognizes that picketing any person's place of business is legal, provided, of course, it has some relation to the ends which the defendant is seeking to obtain in a labor dispute.
This brings us to what may be called the "Sherman Act phase" of the case. Undoubtedly the defendants' acts have resulted in the "reduction in the supply of an article to be shipped in interstate commerce." It was formerly the law that the mere fact that a strike or other measures by a labor combination resulted in such reduction was not proof of an intent to violate the Sherman Act, 15 U.S.C.A. §§ 1-7, 15 note. Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 45 S.Ct. 551, 69 L.Ed. 963. And this was true despite the fact that the supply was reduced by illegal and tortious acts stopping production. The Apex opinion [90 F.2d 159] (with the statement, "We are concerned with what the law is today") held that the Supreme Court's decision in the Jones & Laughlin Case, National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, impliedly overruled this and other decisions.
In view of the fact that the Supreme Court of the United States has not yet spoken upon the important question of the effect of the Jones & Laughlin case upon the earlier Sherman Act decisions, I think that it would be unwise to extend the scope of the Apex decision beyond what its facts strictly require.
What is actually ruled in that case is that the total stoppage of production, in a plant engaged in interstate commerce, by illegal seizure of the plant itself carries with it the conclusive presumption that the guilty parties intended to restrain interstate commerce. I do not think it was meant to rule in the Apex case that the reduction of the supply of an article in interstate commerce carries such presumption in every case, or specifically, where the purpose and methods of the defendants are lawful. The decision leaves room for a fact finding in cases where the restraint arises from conduct like that in this case, and I make the finding that it was not the intent of these defendants to restrain interstate commerce. And if, under the Apex decision, the legality or illegality of the purpose of the combination is a matter of importance, that decision itself supplies the answer that the closed shop is a legal objective. The Court said, "It may be that the ultimate intent of the conspirators in this case was to force the plaintiff to sign an agreement for a closed shop. This would be perfectly all right if the defendants had used lawful means to bring it about * * *." The conclusion is that the fact that the result of these defendants' acts has been to reduce the supply of the plaintiff's products moving in interstate commerce, does not entitle the plaintiff to an injunction on the ground of a violation of the Sherman Anti-Trust Act.
I have considered the plaintiff's argument for an injunction based on the alleged breach of a contract on the part of the unions not to press for a closed shop in consideration of a wage increase, but I am of the opinion that that clearly does not present any ground for the issuance of an injunction.
The prayer for a temporary injunction is refused with leave to renew it by motion as to the defendants Devlin, Arbucus and *919 Barron unless these persons cease immediately to participate in any of the activities of the defendants connected with this labor dispute. If it appears to the Court that they are still taking part in any of such activities, the prayer for a temporary injunction may be renewed as to them by motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263176/ | 27 F.Supp. 655 (1939)
NATIONAL GEOGRAPHIC SOC.
v.
CLASSIFIED GEOGRAPHIC, Inc., et al.
No. 4509.
District Court, D. Massachusetts.
May 17, 1939.
*656 William R. Cook and Johnson, Clapp, Ives & Knight, all of Boston, Mass., and Elisha Hanson and Eliot C. Lovett, both of Washington, D. C., for plaintiff.
Nathan Tobin, of Lynn, Mass., for defendants.
BREWSTER, District Judge.
This is an action brought for injunctive and other relief against a corporate defendant and three individuals controlling said corporation.
*657 The action is brought under the Copyright and Trademark statutes and also is based on allegations of unfair competition.
The facts are not in dispute. They are fairly and fully stated in plaintiff's brief and are abundantly supported by evidence.
1. The National Geographic Society is a scientific and educational institution, not organized for profit, which was originally incorporated under the laws of the District of Columbia in 1888. Its object is to gather and diffuse geographic knowledge. Since 1889, one of its chief vehicles for diffusing geographic knowledge has been, and still is, The National Geographic Magazine, which is published monthly by plaintiff.
2. In its work of gathering and diffusing geographic knowledge, plaintiff has conducted and sponsored numerous research expeditions, the work of which is described in its Magazine. In carrying out this work and publishing The National Geographic Magazine, plaintiff has expended many millions of dollars. All of the component parts of The National Geographic Magazine are covered by copyrights under the Federal Copyright Law.
3. Over a long period of years plaintiff has compiled, adapted, arranged and published in book form material that has appeared in its Magazine. The National Geographic Magazine, and those publications, adaptations and arrangements in book form, in turn, have been copyrighted under the provisions of Section 6 of that Copyright Law, 17 U.S.C.A. § 6, and offered for sale to the public. Among such compilations of the plaintiff are, "The Book of Birds", "Our Insect Friends and Foes and Spiders", "The Book of Fishes", "The Book of Dogs", "Horses of the World", and "Cattle of the World".
4. The plaintiff publishes each month over a million copies of The National Geographic Magazine and distributes them to members of the Society and to subscribers throughout the civilized world. That magazine has become widely known as "The Geographic". By that magazine the numerous research expeditions conducted or sponsored by the plaintiff, and its many other contributions to the science of geography, the plaintiff has built up a substantial goodwill for itself and for its Magazine.
5. In addition, the plaintiff conducts a School Service Department, which provides teachers and scholars with weekly bulletins and also it is prepared to furnish information to teachers and others on matters of the geographic nature. Much of the material for this service is compiled, abridged or arranged from articles which have appeared or are about to appear in the Magazine.
6. The plaintiff has duly registered the name of its publication, The National Geographic Magazine, and the front cover of that Magazine in the United States Patent Office. In addition, the said name was also duly registered under the Trade-Mark Registration Laws of Massachusetts.
7. The defendant, Classified Geographic, Inc., is a corporation organized and existing under the laws of the Commonwealth of Massachusetts. Its chief business is the adaptation, arrangement and compilation of material which has appeared in The National Geographic Magazine, the publication of that material as adapted, arranged and compiled in book or pamphlet form and the sale of such books and pamphlets to the general public. Defendant, Classified Geographic, Inc., does not reprint any of said material but obtains all of such material from copies of The National Geographic Magazine, which it has purchased in various markets and which it treats as secondhand property. Defendant, Classified Geographic, Inc., classifies the articles in these various magazines under topical subjects, tears the magazines apart, segregates the particular articles desired, then brings the articles under each one of the particular topics together for publication in book form, binds them in a substantial backing and finally offers them for sale as an original compilation of articles from The National Geographic Magazine. Likewise, it takes from the magazines which it has purchased individual articles on various topics and publishes them in a pasteboard binding and offers them for sale in such changed form.
8. On the outside cover of certain of said compilations in book form the following appears:
"Classified Geographic, Inc. "Articles Compiled and Rebound from National Geographic Magazines"
On the outside cover of the single articles rebound for distribution, the following appears:
"Articles Classified and Rebound
from
National Geographic Magazines
-------------------------------
Classified Geographic, Inc.
Lynn, Mass. Price 15c"
*658 On the outside cover of the book volumes there is a simulation of a portion of plaintiff's registered trademark. And on the outside cover of the bound single articles there is a simulation of another part of plaintiff's registered trade-mark.
In both the book form and the pamphlet form there is a preface, the first three paragraphs of which read as follows:
"In reading the National Geographic Magazine an outstanding thought presents itself; namely, if this material could be compiled it would facilitate research in the various fields treated. Doubtless this thought has been expressed many times, but in the compilation lies the originality of our work." (Italics supplied.)
"The grouping of these topics is the result of a methodical culling of National Geographic Magazines published over a period of twenty years. Hence, every article contained in these volumes is authentic and authoritative. We have made a careful list of subjects under every topic in order to enable the reader to find exactly the phase of that particular subject he is seeking. Much care, therefore, has gone into the orderly compilation of factual material.
"Our classifications follow as nearly as possible along the lines of subjects in the elementary and high schools. Teachers of geography need no introduction to the magazine, for it is an invaluable supplement to classroom work. The informal travel articles and beautifully colored plates enrich the ordinary classroom lesson. Herein lies the chief value of these magazines to the younger student, for they cannot be considered in the same category as the ordinary cut-and-dried reference work."
9. Defendant, Classified Geographic, Inc., has adapted, arranged, compiled, published and offered for sale copyrighted material taken from plaintiff's magazine, The National Geographic Magazine, in book form under the subjects of "Birds", "Fish", and "Domestic Animals and Insects", large portions of which copyrighted material also had been adapted, arranged, compiled, published and offered for sale by plaintiff in its volumes hereinbefore referred to. As to a large portion of the material contained in all of the volumes of articles from The National Geographic Magazine published by the corporate defendant, there is no notice to the public in those volumes that that material has been copyrighted by the plaintiff although, in fact, all of it has been so copyrighted.
10. In order to facilitate the sales of plaintiff's articles as adapted, arranged and compiled, defendant, Classified Geographic, Inc., has issued a catalog to the general public outlining the scope of the material which it offers. This catalog contains an announcement of the "Unique Service" offered by said defendant and a claim to "originality" in its work. It also contains a topical index, enumerating eighty-one subjects on which said defendant is prepared to furnish material taken from plaintiff's magazine. Following the index are forty-two pages in which the separate articles adapted, arranged and compiled from plaintiff's magazine and published by said defendant, are described, first under the general topics as printed in the index, and second, under the identical titles given to the articles in the National Geographic Magazine. More than one thousand of these articles are so listed and offered for sale, either in book or pamphlet form as adapted, arranged, compiled and published by said defendant.
11. The said catalog also lists the prices at which said defendant's publications will be sold, those prices ranging from 15 cents for certain articles published by said defendant in pamphlet form to $246 for one set of forty-four volumes compiled and published in book form.
12. The defendants' publications show lack of editorial skill and care in their preparation. They omit many of the leading articles on those subjects published in the plaintiff's magazine. The compilations of articles as published by the defendants are so seriously defective and so unrepresentative of the articles actually published by the plaintiff on the various topics covered by the defendant's publications that they tend to injure the reputation and diminish the goodwill attached not only to the plaintiff's magazine but also to the value of the plaintiff's whole field of scientific activities by generating in the minds of the purchasing public a depreciated valuation of the articles published by the plaintiff and by creating a false impression concerning the value and quality of the plaintiff's work.
13. Defendant, William Burdette Wilkins, was treasurer and director of the corporate defendant, and a stockholder, until Sept., 1938. Defendant, Hyman B. Chandler, is president and director of the *659 corporate defendant and a stockholder therein, and defendant, George F. Gilbert, is treasurer, clerk and director of the corporate defendant and a stockholder therein. Said corporate defendant, Classified Geographic, Inc., was incorporated by said individual defendants, Wilkins, Chandler and Gilbert, to carry on the business of adapting, arranging, compiling, publishing and selling material taken from The National Geographic Magazine, after said individual defendant Wilkins had asked for the consent of the National Geographic Society to conduct such a business which consent was refused by the Secretary of the Society. Also, following further representations by said individual defendant Wilkins, consent was refused by the Attorney for the Society who is also a Trustee of the Society, who formally notified said defendant that the use of the material without the consent of the plaintiff, the use of the title "Geographic Articles", the use of the name "Classified Geographic Co." and the use of the phrase "Articles Compiled and Rebound from National Geographic Magazines", as well as the use of the word "Geographic" in the manner planned not only met with the disapproval of plaintiff but constituted a violation of law and, if persisted in, would compel the plaintiff to take the proper action to protect its property rights.
14. Until Wilkins severed his connection in 1938, the individual defendants were in full control of the corporate defendant and directed the acts of infringement of the corporate defendant of which the plaintiff complains. Since September, 1938, the defendants Chandler and Gilbert have so controlled and directed the affairs of the corporation.
15. It appears that the defendant has not been able to promote a very extensive or profitable business. It has now on hand only a few samples of its books and pamphlets. It is probably insolvent.
Plaintiff seeks relief on three grounds: (1) Infringement of plaintiff's copyright; (2) violation of plaintiff's trademark, and (3) unfair competition.
The defendants contend, on the other hand, that as owner of secondhand copies of The National Geographic Magazine, lawfully acquired, they do not impinge on any exclusive right of plaintiff by breaking-down, re-arranging, binding and selling the copyrighted material. With equal confidence they claim that these operations do not constitute acts of unfair competition.
The Copyright Act of 1909 (section 1, 17 U.S.C.A. § 1) gives to any person entitled thereto the exclusive right "to publish" and "vend" the copyrighted work. Section 3 of the Act, 17 U.S.C.A. § 3, further provides as follows:
"Protection of component parts of work copyrighted; composite works or periodicals. The copyright provided by this title shall protect all the copyrightable component parts of the work copyrighted, and all matter therein in which copyright is already subsisting, but without extending the duration or scope of such copyright. The copyright upon composite works or periodicals shall give to the proprietor thereof all the rights in respect thereto which he would have if each part were individually copyrighted under this title."
I am of the opinion that the arrangement of the plaintiff's material with the prefatory matter was intended to be, and was, a new publication of copyrighted material which invaded plaintiff's exclusive right to publish, not only the magazines but also the books published by it in which it had compiled articles taken from the magazines. United States v. Williams, C. C., 3 F. 484.
"In its ordinary acceptation, the word `publication' means `the act of publishing a thing or making it public; offering to public notice; or rendering it accessible to public scrutiny.' In copyright law, it is `the act of making public a book; that is, offering or communicating it to the public by sale or distribution of copies.'" D'Ole v. Kansas City Star Co., C.C., 94 F. 840, 842.
This is precisely what the defendant corporation has been doing with material taken from copyrighted magazines. I do not think the definition can be limited to the first publications only, when considered in the light of other provisions of the copyright law, hereafter noted.
The Act gives to the plaintiff the exclusive right to compile, adapt or arrange its copyrighted work, to grant that privilege to others and, by necessary implication, it has the right to refuse its consent to any compilation, adaptation or arrangement by others of the copyrighted work. This follows from the provisions of section 5(a), 17 U.S.C.A. § 5(a), which permits the copyrighting of books and other compilations; and also from the provisions *660 of section 6, 17 U.S.C.A. § 6, which reads as follows:
"§ 6. Copyright on compilations of works in public domain or of copyrighted works; subsisting copyrights not affected. Compilations or abridgements, adaptations, arrangements, dramatizations, translations, or other versions of works in the public domain, or of copyrighted works when produced with the consent of the proprietor of the copyright in such works, or works republished with new matter, shall be regarded as new works subject to copyright under the provisions of this title; but the publication of any such new works shall not affect the force or validity of any subsisting copyright upon the matter employed or any part thereof, or be construed to imply an exclusive right to such use of the original works, or to secure or extend copyright in such original works."
It cannot be successfully denied that the use made of the material taken from the secondhand copies of the magazine amounted to a "compilation" or an "adaption" or an "arrangement" of copyrighted works, within the usual and ordinary meaning of those words. It is established by the evidence that plaintiff not only refused to give its consent to this use but notified the defendant in writing that it would regard such use as an infringement of its rights.
Sec. 41 of the Act, 17 U.S.C.A. § 41, provides as follows:
"§ 41. Copyright distinct from property in object copyrighted; effect of sale of object, and of assignment of copyright. The copyright is distinct from the property in the material object copyrighted, and the sale or conveyance, by gift or otherwise, of the material object shall not of itself constitute a transfer of the copyright, nor shall the assignment of the copyright constitute a transfer of the title to the material object; but nothing in this title shall be deemed to forbid, prevent, or restrict the transfer of any copy of a copyrighted work the possession of which has been lawfully obtained."
It is clear that the Act distinguishes between the ownership of copyright and ownership of the material copyrighted by providing that the sale of the object shall not of itself constitute a transfer of the copyright, but the section recognizes the right of a lawful owner to transfer a copy of a copyrighted work.
Defendants argue that as an incident to the ownership of the magazines the owner may make a recompilation, or rearrangement, of the material and publish it in the form of a book or pamphlet so long as he does not copy or re-print any part of the articles used.
The defendant's attorney concedes that he has been unable to find any case exactly in point. Decisions supporting the proposition that an owner of a copyrighted publication may re-sell it in its original form are clearly not in point. The right of an owner to restore a secondhand book to its original condition, so far as cover and binding are concerned, is established. Doan v. American Book Co., 7 Cir., 105 F. 772; Bureau of National Literature v. Sells et al., D.C., 211 F. 379; Ginn & Co. v. Apollo Pub. Co., D.C., 215 F. 772. But such restoration may lay the dealer open to the charge of unfair competition, if he sells the book without distinctive notice to the public that the book is a renovated work. Ginn & Co. v. Apollo Pub. Co., supra; Doan v. American Book Co., supra. The right, however, to renovate and re-sell copyrighted work does not extend to printing, or replacing, pages lost or mutilated. Ginn & Co. v. Apollo Pub. Co., supra.
The case nearest in point is Kipling v. G. P. Putnam's Sons, 2 Cir., 120 F. 631, 65 L.R.A. 873, where it appeared that unbound volumes were bound and re-sold. The court held there was no infringement of the copyright, but it is to be noted that these unbound volumes were purchased from the copyright proprietor or his licensee, and it is difficult to escape the conclusion that the compilation was with the consent of the proprietor. In the case at bar, there was no such consent.
My conclusion, therefore, is that the compiling of the articles from plaintiff's magazines in book, or pamphlet, form, and the sale of them, infringes plaintiff's exclusive right, secured by its copyright.
With respect to the trademark violation and unfair competition, these may be considered together, since the substantive law of trademarks is generally regarded as a branch of the broader doctrine of unfair competition. G. & C. Merriam Co. v. Saalfield, 6 Cir., 198 F. 369. The words "National Geographical Magazine" were registered as a trademark. Although the words "National" and "Geographic" are words of description, their long and wide use has given to them a secondary meaning. *661 American Products Co. v. American Products Co., D.C., 42 F.2d 488; Central Shoe Co. v. Central Shoe Co., Inc., D.C., 58 F.2d 680. They have come to symbolize the works of the plaintiff, and the goodwill which it had acquired as a result of large expenditures of money involved in gathering original articles appearing in its publication under the name of "The National Geographic Magazine".
The corporate name of the defendant included the word "Geographic", and the outside covers of defendant's book and pamphlet carried the words "Articles compiled and rebound from National Geographic Magazine", thus giving a prominent place to the words constituting the trademark.
Except for the use of these words in the title to the defendant's book there is little, if any, similarity in outward appearance between the defendant's book and those published by plaintiff. It was shown by testimony that on several occasions the plaintiff had received requests for information, and, on one occasion, an order from persons who had mistakenly assumed that the plaintiff was furnishing and selling defendant's books and pamphlets. One who carefully examined the title would have no difficulty in understanding that the books were not those of the plaintiff, but a casual observer would readily associate them with the plaintiff's publications. The inferiority of the defendant's compilations was, therefore, bound to injuriously affect the reputation of the plaintiff's copyrighted works and to impair its goodwill, perhaps not to any great extent, but the injury is present and was somewhat aggravated by the fact that, in many instances, the compilations of the defendant failed to carry notice that the work was copyrighted, from which a purchaser might assume it was within the public domain.
While it is generally agreed that the imposition upon the public incident to sales of spurious goods does not give rise to private rights unless property rights of the plaintiff are thereby invaded (American Washboard Co. v. Saginaw Mfg. Co., 6 Cir., 103 F. 281, 50 L.R.A. 609), it is nevertheless well settled that the right in the trademark with the goodwill symbolized by it are property rights which the court will protect against invasion. Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 36 S.Ct. 357, 60 L.Ed. 713; Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U.S. 183, 57 S.Ct. 139, 81 L.Ed. 109, 106 A.L.R. 1476.
Whether the wrong is regarded as a violation of trademark rights, or as unfair competition, is not a matter of controlling importance. In either event, one is unlawfully appropriating the benefit of a goodwill which another has acquired as a result of continued usage and large expense. See Uproar Co. v. National Broadcasting Co., 1 Cir., 81 F.2d 373, 376; International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211, 2 A.L.R. 293.
Defendants have argued that there can be no unfair competition because plaintiff and defendants are not competitors. It has appeared that the defendants solicit trade from schools, and that the plaintiff also renders a service to schools and teachers. It also appears that both offer for sale books under similar titles, consisting of the same or similar materials compiled from plaintiff's magazine. It can hardly be said that there is no competition between the parties, but, however that may be, the doctrine that the opposing parties must be competitors in the same field no longer prevails. Prouty v. National Broadcasting Co., D.C., 26 F.Supp. 265, and cases cited.
The plaintiff has joined three individual defendants who organized the corporation and controlled and directed its activities while the infringing acts were committed. The authorities in this Circuit support the plaintiff's contention that the individual defendants can be held not only liable to injunction but liable in damages. National Cash-Register Co. v. Leland, 1 Cir., 94 F. 502; Fauber v. Springfield Drop-Forging Co., C.C., 98 F. 119; Calculagraph Co. v. Wilson, C.C., 132 F. 20.
The same rule has been followed in other circuits: Claude Neon Lights, Inc. v. American Neon Light Corp., 2 Cir., 39 F.2d 548; Hitchcock v. American Plate Glass Co., 3 Cir., 259 F. 948; D'Arcy Spring Co. v. Marshall Ventilated Mattress Co., 6 Cir., 259 F. 236.
Officers and directors also may be held responsible for acts of unfair competition. Federal Trade Commission v. Standard Education Soc., 2 Cir., 86 F.2d 692; Prest-O-Lite Co. v. Acetylene Welding Co., D.C., 259 F. 940.
Respecting the plaintiff's remedy, it would be impossible from the evidence before *662 me to arrive at any satisfactory conclusion respecting the extent of the damages which the plaintiff would be entitled to recover, either for unfair competition or under the statute for trademark infringement. 15 U.S.C.A. § 96.
The copyright laws (17 U.S.C.A. § 25), however, afford adequate relief, both with respect to an injunction and as award of damages. The instant case is one where the court may properly apply the provisions of the statute which enables it to award "in lieu of actual damages and profits such damages as to the court shall appear to be just," which shall be not less than $250 nor more than $5000.
It has already appeared above that the defendants proceeded with their work of compiling and selling after they had been warned by the attorney for the plaintiff that such work would amount to an infringement. It also appeared that they had been advised by their attorney that their activities would not constitute infringement. They elected to act upon the advice of their own attorney rather than upon that of the adversary, and I can readily conclude that in so doing they honestly believed that they were within their rights. I do not think they should be severely penalized for their conduct. Their venture has not proved successful, and an injunction with a destruction of the books will entail still further loss.
For these reasons, I am led to believe that the plaintiff will secure adequate relief by an injunction against further acts of infringement and an award of damages for the minimum amount.
Counsel for the plaintiff may submit for approval a form of decree, consistent with this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263179/ | 27 F.Supp. 847 (1939)
Application of TEXAS CO. et al.
Nos. 55D, 56D, 57D.
District Court, E. D. Illinois.
June 5, 1939.
*848 *849 Harry T. Klein and George W. Ray, Jr., both of New York City, M. A. Jacobson, of Waukesha, Wis., and S. A. L. Morgan, of Houston, Tex., for applicants The Texas Co., W. S. S. Rodgers, H. W. Dodge, S. B. Wright, Walter Hochuli, and W. F. Murdy.
Webster & Garside and Bethuel M. Webster, all of New York City, for applicants Tide Water Associated Oil Co., Edward L. Shea, Noel Robinson, John W. Warner, John D. Collins, and Harold F. Parsons.
Topliff & Horween, Samuel Topliff and Ralph Horween, all of Chicago, Ill., for applicants Globe Oil & Refining Co., I. A. O'Shaughnessy, and G. O. Woodruff.
John Henry Lewin, Grant W. Kelleher, Nelson A. Sharfman, and George W. Wise, Sp. Assts. to Atty. Gen., and Ray M. Foreman, Asst. U. S. Atty., of Danville, Ill., for respondents.
LINDLEY, District Judge.
The present applications seek to quash the grand jury subpoenas heretofore issued and to restrain the Government and its prosecuting officials from presenting certain witnesses and documents included in the subpoenas.
To appreciate fully the legal effect of the applications I think it well to revert briefly to some of the elementary principles of our form of government.
There are three departments. Upon the Congress and upon it alone devolves the responsibility of determining the wisdom and policy of legislation. The Executive may recommend legislation, and so may other citizens; but eventually the Congress is wholly sufficient unto itself. It is the sole judge of the policy to be reflected in its enactments; and no other representative or department of the government may interfere, so long as it acts within the Constitution. It is intrusted with general authority to enact legislation at its discretion, subject only to the limitations prescribed by the sovereign people in the Constitution. In pursuance of this responsibility Congress long ago enacted laws having to do with anti-trust subject matter. The Sherman Act has been on the books for many years. The Clayton Act is of shorter life, but it has been a statute for more than twenty years. The two statesmen for whom those pieces of legislation were named have long since passed to their fore-fathers; but the statutes persist and express a settled policy in our legislative enactments.
The Executive Department, with all its branches, is charged with the true and faithful administration of the acts of Congress. Among its manifold duties in this respect, it is bound to prosecute those whom it reasonably believes should be prosecuted as violators of the law. It is its duty to administer all laws honestly and efficiently; and for its failure to do so penalties and remedies are provided. The *850 Executive Department carries the acts of the Congress into effect, administers them, secures their due performance and enforces them. Only when it seeks judicial aid in the effectuation of its legitimate functions, has the judiciary anything to say as to the propriety of its actions. In the latter instance, the judiciary may interfere or restrain only when the act of the administrative department results in violation of the legal or constitutional rights of another. The executive official, in the proper discharge of his duties under the constitution, is as independent of the courts as he is of the legislature.
The judiciary is in no wise concerned with the proper execution of the law; it has nothing to do with the motives or policy of legislation. Rather it is the department charged with the interpretation of the laws and their enforcement at the behest of private parties or the government. But courts have no power other than judicial, and their orders must accord with the Constitution and the laws enacted by the Congress. With the motives of the legislators the courts do not concern themselves. The judiciary can only inquire whether the means utilized in the execution of a power granted are forbidden by the Constitution. It cannot go beyond that inquiry without intrenching upon the domain of another department of government. This it may not do with safety to our institutions. Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047. Nor does it fall within the judicial function to control the exercise of the discretionary powers which, by the Constitution or statutes, are vested in public administrative officials. If that discretion is exercised in such an arbitrary or unjust and discriminating manner as clearly to deny to individuals their right to the equal protection of the laws, or to due process of law, or any other constitutional right, the courts may intervene, and they may hold unconstitutional any attempt upon the part of the legislature to vest in administrative officials a discretion that is essentially arbitrary in character.
The grand jury originated long ago in England. From its beginning it had inquisitorial power and at one time, probably, even some trial power. At times it was a protection of the people against the sovereign. Fortunately, under our system of government, we have had little occasion for such protection. But we have retained the grand jury, believing it to be a wise, efficient and beneficent element of our official machinery of justice. One truism persuading us to perpetuate the institution is that unfortunately at times a prosecutor may be of such character that if the right to determine whether there shall be prosecution or non-prosecution of an offender is lodged in him, miscarriage of justice results. This, perhaps, savors of the old idea of protection against the sovereign. So, wisely, I believe, we have retained this age old institution in our constitution and laws.
A grand jury is a part of the court machinery, an all-important element in the agency of the government endowed with judicial power, for one accused of felony may not be prosecuted except upon a true bill returned by a grand jury. It is under control by the court to the extent that it is organized and the legality of its proceedings determined by the court in accord with the statutes. Its members are subject to the court's supervision and control for any violation of their duties. Beyond this supervisory power over them, however, the court cannot limit them in their legitimate investigation of alleged violations of the law. They have a right to bring to the attention of their fellow members any crimes known to any one of them, even though no complaint is presented by any prosecuting officer. They have the right to subpoena and to have called before them persons and documents, for the purpose of determining whether there has been violation of the law. In short, they have inquisitorial powers, the full extent of which and the full limitations upon which have never been completely settled by any one precedent or any number of precedents.
The uncertainty as to the grand jury's powers results from the fact that the institution has grown from the common law of England; that courts, investigating its historical growth, have differed as to its powers; and that our legislation regarding it is extremely meagre. I find no definition of a grand jury's powers in the federal statutes. I find rather a statute which authorizes me to call such a body, provides the manner in which I shall make the call, fixes certain limitations, defines a quorum, and gives the court the right to excuse or discharge. But, beyond the briefest implications contained in the statutes, the Congress has not seen fit to define the jury's *851 power, or to designate the exact limitations upon it. It has remained for the courts, tracing the history of the grand jury from the time of early England, to determine for themselves when, upon a particular set of facts and circumstances, a question is presented, just how far a grand jury may properly go or should be allowed to go.
Undoubtedly the court has some discretion, but here I am asked as a member of the judiciary to say that the Government, the Executive Department, charged with the execution and administration of the laws, may not present to a grand jury matters which counsel for the Government assure me are essential, according to their conception of their duties, to a complete investigation and prosecution of what is thought to be a violation of the law. They assure me that complaints have been made that practices, which they deem, from their viewpoint, violations of the Anti-Trust Law, have continued since the return of the indictments in Madison and that if in this investigation facts should be developed justifying further indictments, they intend to ask for true bills.
Should I, who have nothing to do with the policy of legislation or with the execution of the law, assume the authority to say: "No, the Executive Department may not present to a grand jury of this community the facts which it assures me it believes constitute a violation of the national law?" It seems to me that the question answers itself.
Irrespective of what other courts may have said, such action seems to me an assumption, an usurpation of power by the court over the acts of a coordinate branch of the Government which I have no right to assert. Such action on my part is beyond my conception of my proper obligations and my proper duty under my oath of office; it is an undue interference with the executive branch.
To my mind, it is of no importance whether there are other indictments against these petitioners, or any of them, in other districts. To my mind, it matters not whether any of them have been acquitted before, in any other prosecution. To me, it is wholly a matter of indifference whether difficulties have been encountered elsewhere in securing evidence in other cases. To my mind, it is my duty, as a member of the judiciary, enforcing the laws of this nation, to afford to the Executive Department in discharging its duty of execution of the laws, full and complete opportunity to present to the grand jury any alleged violation of those laws, at any time when I have a grand jury in session.
There is no question of previous conviction, previous acquittal, or res adjudicata; a grand jury investigation is an ex parte proceeding. In the end the jury has only one function to perform, to report to the court that it has reasonable cause to believe that probable grounds exist or do not exist for the prosecution of some one or more parties for violation of the law. The grand jury merely makes an accusation.
The right to interpose pleas of former conviction, of former acquittal or of immunity, is in no wise involved. This is not a trial; it is not a determination of guilt or innocence. If this grand jury should return an indictment, it would be my duty to charge the petit jury sitting at a trial thereof that the indictment carries no evidence, no presumption of guilt; that the defendants are presumed to be innocent, and that that presumption will control until and unless it shall be overcome by proof of guilt beyond all reasonable doubt.
And, further, to me it seems that the fact that other indictments are pending is, under the assurances made by the Government in open court, of little importance. I have no way of knowing whether the facts developed in this matter may help the Government in its prosecution of other indictments. But even if they should be an aid in ascertaining where lies the truth, the goal of all judicial investigations, whatever the result of that truth may be, it is my duty as a court to allow it to be produced, if it is brought to light in a legitimate investigation, as I am assured this is.
So it seems to me, for the reasons I have stated, under my understanding of the grand jury's duty and our theory of constitutional government, that to allow these applications would amount to an assumption of executive power by a member of the judiciary, for by so doing I would be refusing to permit the Government to present matters it assures me are pertinent to investigation of what is complained of by citizens as violations of the national laws. This I shall not do. The applications must be denied. Such will be the order of the court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333178/ | 299 S.E.2d 451 (1983)
STATE of North Carolina
v.
Melvin JAMES.
No. 8212SC500.
Court of Appeals of North Carolina.
February 1, 1983.
*452 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Christopher P. Brewer, Raleigh, for the State.
Reid, Lewis & Deese by Marland C. Reid, Fayetteville, for defendant-appellant.
BECTON, Judge.
I
The issues on appeal concern whether the trial court erred in denying defendant's motions to dismiss, in admitting hearsay testimony, and in failing to charge on prior inconsistent statements; and whether defendant was denied his right to the effective assistance of counsel. We have considered all of the issues, and for the reasons that follow, we find no error.
The State presented evidence tending to show that Nathaniel "Slim" Wright was shot and killed by a shotgun blast near the Prince Charles Hotel in Fayetteville on the night of 8 December 1978. Glenn Keith Brown, who appeared for the State in exchange for immunity, testified that he and defendant were in the bar of the Prince Charles Hotel where defendant, with Brown's assistance, fought with Wright over some bad dope Wright had sold to defendant. After the crowd broke up the fight, Brown and defendant went to defendant's girlfriend's apartment, where defendant got his shotgun. They returned to the parking lot of the hotel where they confronted Wright. Defendant retrieved the gun from some bushes where it had been hidden by Brown, told Wright that "he was going to float," and fired the fatal shot. Defendant gave the gun to Brown as they fled the scene. Brown broke the gun down and threw it into a creek.
Brown and defendant went to Henry Jackson's house where they hid overnight. Jackson testified that the two men came to his house that night stating that they were in trouble. Defendant told Jackson that he had shot Wright.
Defendant presented evidence tending to show that Brown shot Wright. He testified that after the fight he went to his sister's house. As he came out of his sister's house, he was asked by Brown to go back to the hotel. As they rode to the hotel, he noticed that Brown had a gun. Upon arrival, they parted. He did not see Brown until later that night when Brown ran up to him and said "I told him (Wright) that I would get even with him." They spent the night at his aunt's house.
The aunt verified that they spent the night there. Brown's former coach testified that he overheard Brown say that he shot Wright but defendant was going to take the rap for it. Other witnesses testified that defendant was not in the area of the hotel when the shooting occurred.
II
Defendant first argues that the trial court erred in denying his motions to dismiss because the State's evidence essentially consisted of the inherently incredible testimony of Brown. We find no merit in this argument.
*453 The rules of law governing the determination of a motion to dismiss are familiar. In ruling on a motion to dismiss, the trial court does not pass upon the credibility of the witnesses for the prosecution, or take into account any evidence contradicting them offered by the defense. The trial court merely considers the testimony favorable to the State, assumes it to be true, and determines its legal sufficiency to sustain the allegations of the indictment. The weight and credibility of the testimony are matters for the jury. State v. Lester, 294 N.C. 220, 240 S.E.2d 391 (1978). For the State's evidence to withstand a motion to dismiss, there must be substantial evidence of each of the essential elements of the offense charged. State v. Smith, 40 N.C.App. 72, 252 S.E.2d 535 (1979).
Applying these principles, we have reviewed the record and find that there was adequate evidence to take the case to the jury. Brown's testimony alone was sufficient to take the case to the jury. The weight and credibility of Brown's testimony were to be determined by the jury. Moreover, there was corroborating testimony from Henry Jackson, who testified that defendant admitted shooting Wright. Several witnesses testified that they saw two black males, one carrying a gun, running from the scene.
III
Defendant next contends that the trial court erred in admitting hearsay testimony by a police officer concerning a description he had been given. The police officer testified on cross-examination that nothing in his investigation tied defendant to the case except a description of the assailant he had been given by a witness to the shooting. On redirect examination, the officer identified the witness as Mr. Tyndall. After the court overruled defendant's objection, he stated that the description given him by Tyndall was of "a black male approximately 27 years of age, 150-160 pounds, about five foot seven or eight."
This testimony was admissible on redirect since it explained the testimony brought out on cross-examination, although it might not have been proper in the first instance. See State v. Albert, 303 N.C. 173, 277 S.E.2d 439 (1981). Moreover, the admission of the description was not prejudicial in light of defendant's defense that Brown did the shooting. The description also could have fit Brown. Brown, on cross-examination by defendant's counsel, described himself at the time of the shooting as being 5'9" tall, weighing 150 pounds, and having long sideburns, a goatee and mustache. Brown was also in the courtroom so that the jury was able to compare the description with Brown. Accordingly, this assignment of error is overruled.
IV
Defendant next contends that he was denied his right to effective assistance of counsel. The alleged deficiencies in representation concern the failure to object to testimony relating to the shotgun and to certain hearsay testimony, the failure to object, or to request limiting instructions concerning the admission of corroborative testimony, the failure to make post-verdict motions, and the failure to perfect defendant's appeal.
While it is true that "[u]sually, the question of alleged failure of counsel to render effective representation arises on post conviction proceedings, ... [it is also a fact that] the question can be considered on direct appeal." State v. Hensley, 294 N.C. 231, 239, 240 S.E.2d 332, 337 (1978). See, State v. Brooks, 38 N.C.App. 48, 247 S.E.2d 38. In light of the Supreme Court's decision in Hensley, our decision in Brooks, and because of the facts in this case, we address defendant's contention on direct appeal.
The recently adopted test in North Carolina for determining whether there has been effective assistance of counsel is the standard used by the United States Supreme Court in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). State v. Vickers, 306 N.C. 90, 291 S.E.2d 599 (1982).
*454 Under McMann, the test is whether the assistance given was "within the range of competence demanded of attorneys in criminal cases." McMann v. Richardson, 397 U.S. at 771, 90 S.Ct. at 1449, 25 L.Ed.2d at 773. We will not second guess counsel on questions of trial strategy. Each claim must be considered on a case by case basis. State v. Sneed, 284 N.C. 606, 201 S.E.2d 867 (1974).
Applying these principles, we have examined each of the alleged omissions and find that defendant was not denied his right to effective assistance of counsel. Most of the alleged omissions were part of what appeared to be a well-planned trial strategy not to contest the admission of evidence that Wright was killed by a certain shotgun but to contend that Brown did the shooting rather than defendant. Moreover, even had trial counsel made all of the objections, the outcome of the trial would likely have been the same. Trial counsel conducted extensive cross-examination of the key State witnesses and presented evidence on behalf of defendant.
With regard to defendant's claim that his trial counsel failed to perfect the appeal, we point out (1) that the only remedy would be appellate review, not a new trial; (2) that our grant of the writ of certiorari renders moot this claim; and (3) that the evidence, in any event, tends to show that trial counsel failed to perfect the appeal because defendant told him to drop the appeal.
V
Defendant finally contends that the trial court erred by omitting from its charge to the jury an instruction as to the prior inconsistent statements of Brown. The trial court instructed on all the essential elements of the crime charged; thus, it charged on all the substantial features of the case. State v. Hines, 54 N.C.App. 529, 284 S.E.2d 164 (1981). Following the instructions, both counsel were specifically asked if they desired further instructions. Both responded that they did not. Defendant's failure to request special instructions on this subordinate feature of the case bars him from complaining of that omission here. Id. See, State v. Boyd, 278 N.C. 682, 180 S.E.2d 794 (1971).
For the foregoing reasons, we find
No error.
HEDRICK and WEBB, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2262991/ | 893 A.2d 507 (2006)
Freddy FLONNORY, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.
No. 358, 2004.
Supreme Court of Delaware.
Submitted: November 7, 2005.
Decided: February 1, 2006.
Brian J. Bartley (argued) and Nicole M. Walker, Office of the Public Defender, Wilmington, Delaware for appellant.
Thomas E. Brown and Gregory E. Smith (argued), Department of Justice, Wilmington, Delaware for Appellee.
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and RIDGELY, Justices, constituting the court en banc.
*513 STEELE, Chief Justice.
On July 13, 1997, Freddy Flonnory and his co-defendant Korey Twyman shot and killed Angela Farmer and Danya "Duke" Adams. Flonnory was indicted, tried, convicted of first degree murder as well as other crimes, and sentenced to death in October 1998. He appealed to this Court. On August 14, 2001, we reversed and remanded to a different trial judge for a new trial because one of the jurors in the first trial communicated highly prejudicial information to the other jurors, and thus violated Flonnory's right to a fair trial by an impartial jury under both the Delaware and the United States Constitutions.[1] In February 2004, a jury again convicted Flonnory. After conducting a penalty hearing, on July 22, 2004, the Superior Court judge found that the mitigating factors outweighed the aggravating factors and sentenced Flonnory to life in prison on both first degree murder convictions, to a third term of life imprisonment for the attempted murder conviction, and to a total of 60 years incarceration on the remaining convictions. Flonnory again appealed to this Court. He raises eight issues on appeal. Because we find that the trial judge acted within his discretion and that any errors he made were harmless beyond a reasonable doubt, we affirm the trial judge's rulings and Flonnory's convictions.
Facts
The July 13, 1997 double homicides were the culmination of a long-standing feud between Twyman and Richard Grantham. The feud began on Christmas day in 1996. During that time, both Twyman and Grantham were incarcerated at the Ferris School. Grantham, who had behavioral problems, was normally isolated from the general inmate population. On that Christmas, however, he was allowed to eat with the general population. Twyman and other inmates at Twyman's table apparently gave Grantham mean looks and made threatening gestures towards him. Grantham responded by throwing a food tray at Twyman, spilling juice on him. While the guards restrained Grantham, Twyman calmly and coolly informed Grantham that "it was not over" and that "he would get him [Grantham] in the world." The feud continued after Grantham and Twyman were released from the detention facility.
On July 1, 1997, Flonnory, who was then 18 years old, Twyman, who was then 15, and several others, were "hanging out" in the street in Bethel Village when Grantham drove by in a car with Dwayne Warren and Danya "Duke" Adams. While the car was stopped at a red light, Grantham saw Twyman, Twyman's brother Terrell, and Flonnory nearby. Twyman picked up *514 a bottle and threw it at Grantham's car. Grantham drove off through the red light to the west side of Wilmington, where Adams retrieved his handgun.
After getting the handgun, Grantham, Adams, and Warren drove to the area of 24th and Market Streets. Twyman, who by this time had returned to this area, spotted Grantham in the car. Twyman and several others, including Flonnory, approached the car. Twyman then struck Grantham in the head with a bottle while Grantham was being pulled from the car. Adams responded by firing several shots into the group that gathered around the car. One of the shots struck Twyman in the arm. Another shot passed through Flonnory's clothes, barely missing him but leaving him unharmed. A third shot hit a car belonging to Flonnory's mother that was parked near the intersection. Several of Flonnory's nieces and nephews as well as his girlfriend were sitting in the car at the time of the shooting. When the Wilmington police arrived at the scene, neither Flonnory, Twyman, nor Flonnory's relatives informed the police that Adams was the shooter.
For the next several weeks, Twyman expressed a desire to retaliate against Adams and the "westside boys" for the shooting. On July 13, 1997, Flonnory and Twyman decided to seek revenge for the July 1 shooting. Shortly before midnight, Twyman and Flonnory got a ride to the west side of Wilmington with Lionel "Moose" Robinson. Robinson was a "gypsy," an un-licensed taxi-driver, who gave rides in his red Chevrolet Cavalier in exchange for money or drugs. After circling the area around 6th and Madison Streets, Twyman spotted Adams and instructed Robinson to park at 6th and Washington Streets. Twyman and Flonnory left the car and asked Robinson to wait for them to return. The two then proceeded through an alleyway and entered the 600 block of Jefferson Street.
Danya "Duke" Adams, Dwayne Warren, Deshawn "Dewey" Scott, and Angela Farmer were seated on chairs and on an old television set in the road near the intersection of 6th and Jefferson Streets. The four heard shots fired. They realized that they were the target of those shots when they observed sparks from bullets hitting the ground near them. Farmer, who was 17 years old at the time, was hit three times and fell dead from a fatal shot to the chest. Dewey managed to flee the scene. Adams, who was 18 years old, was struck by two bullets. Warren, after being struck by two bullets in the leg, tried to carry Adams behind a car after Adams had been shot. Adams' injuries, however, turned out to be fatal. Additional facts relevant to each of the eight issues Flonnory appeals will be set forth in the section discussing these issues.
1. Admission of Akhee Flonnory's 3507 Statements
Before trial Flonnory moved for an Order precluding the State from introducing pursuant to 11 Del. C. 3507,[2] any out-of-court interrogations, conversation, dialogues and/or declarations reportedly involving Akhee Flonnory [Freddy Flonnory's brother]. In an order dated January 14, 2004, the Superior Court judge granted the motion in part and denied it in part. During the course of the trial, the State called Akhee Flonnory to testify. Akhee took the stand and was a hostile witness. Before ending Akhee's direct examination, the State called Wilmington police Detective *515 Liam Sullivan, through whom the State introduced a videotaped police interview of Akhee. The State also introduced several other out-of-court statements Akhee had made to the police.
Flonnory claims that Akhee's statements were double hearsay and were inadmissible because they were not based on personal knowledge, but were based on (1) newspaper accounts, (2) out of court statements made by Twyman, (3) out of court comments of other parties and (4) Akhee's conjectures. Flonnory also claims that the admission of Akhee's hearsay statements deprived him of his constitutional right to confront and cross-examine his accusers and his right to a fair trial. We refer to the three statements as the August 12, 1997 Statement, the September 22, 1998 Statement, and the September 24, 1998 Statement.
We review a trial judge's refusal to grant a defendant's motion to suppress evidence for an abuse of discretion.[3] Similarly, our review on a ruling on the admissibility of a 3507 statement is for abuse of discretion.[4] Thus the trial court's judgment is reversible only if we find that the decision to admit the 3507 evidence was clearly erroneous.[5] We review an alleged constitutional violation relating to a trial court's evidentiary ruling de novo.[6] We note, before specifically discussing each statement, that in three letters to the trial judge the parties presented their interpretations of Akhee's answers to interrogator's questions and substantial quotations from the transcripts of these statements. We also note that the trial judge did not admit the majority of the August 12, 1997 statement because it was double hearsay with no applicable exception.
a. The August 12, 1997 Statement
In his January order the trial judge determined which of Akhee's answers were admissible on a question by question basis.[7]
Answer 34[8]
The trial judge ruled that Answer 34 was admissible. In A34, Akhee uses the vague pronoun reference "they" before repeating what "they" told him. Before *516 the trial judge, the State argued that A34 was based on a discussion about the murders Akhee had directly with Flonnory. The defense responded that the only discussion between the Flonnory brothers alluded to in A34 concerned what Freddy intended to do after the shootings occurred. Flonnory also argued that there was nothing in A34 to indicate that the initial referent "they" was Freddy Flonnory. The trial judge found otherwise. We find no abuse of discretion in the trial judge's decision to admit A34. The trial judge, apparently found that "they," included Flonnory. We will not disturb that ruling on appeal.
Akhee's out-of-court 3507 statement telling the interrogator what Flonnory told him was "hearsay within hearsay."[9] "If double hearsay is being offered into evidence, each aspect must qualify independently as an exception to the hearsay rule."[10] In this case, Akhee's statement is not inadmissible double hearsay. Under D.R.E. 801(2)(A) an admission by a party-opponent is not hearsay. Thus, Flonnory's statements to Akhee, the hearsay within hearsay, are admissible. Moreover, Akhee was present at trial and defense counsel had the opportunity and did cross-examine him, thus the hearsay portion of Akhee's statement quoting Flonnory is admissible under 11 Del. C. 3507.
Answers 56-62[11]
The trial judge ruled that Answers 56-62 were admissible as they were based on Akhee's personal knowledge. Before the trial judge the State argued that this excerpt established that Flonnory used a.357 that Akhee knew by his own personal knowledge that Flonnory hid near his grandmother's house. The defense argued that "nowhere within this excerpt does Akhee say that he ever observed Freddy use a .357 or that he observed Freddy hide or otherwise be in possession of a .357." Accordingly, the defense argued, the State's suggestion that this excerpt established that Akhee had personal knowledge that Flonnory used a .357 and that this was the gun regularly hidden near his grandmother's house was unsupported. The trial judge admitted these answers on the basis that they were from Akhee's personal knowledge. Akhee may have had personal knowledge about where Flonnory stashed his gun and about the fact that Flonnory used a .357 and the trial judge could have so found. We cannot conclude *517 that the trial judge abused his discretion by admitting these statements.
Answers 65-67[12]
The trial judge admitted Answers 65-67 because they related to both Tywman and Flonnory saying that they shot one of the victims. Akhee clearly states that both Korey and Flonnory said they shot one of the victims. This exchange was admissible for the same reason that A34 was admissible. Flonnory's statement was not hearsay under D.R.E. 801(2)(A) and Akhee's statement quoting Flonnory's statement was admissible under 11 Del. C. 3507. The trial judge did not abuse his discretion in admitting this evidence.
Answers 137-147[13]
To understand why the trial judge admitted these answers, it is first necessary to elaborate certain facts. On December 30, 2003, the trial judge denied the defendant's motion to exclude a statement made by Joy Watson, Akhee's girlfriend, to FBI Agent Stranahan. The defense argued that Watson's statement was inadmissible as "interpretative narrative." (See below). The State then sought to admit Akhee's answers 137-147 to corroborate that Watson was present at 24th and Market shortly before the shooting. With respect to Akhee's statements, the defense argued to the trial judge that the excerpt did not establish that Akhee had personal knowledge that Joy Watson was present or *518 that Freddy Flonnory told him that she was present. Again, while we may have found differently were we sitting as trial judges in the first instance, we must defer to the trial judge's findings. The defense clearly presented its argument about why the statements should not be admitted. The trial judge decided to admit the statements as "relevant to Joy Watson's statement." Questions 135 and 136 and Answer 135 seem to indicate that Akhee had personal knowledge that Joy was present before Flonnory and Twyman left for the shooting. We cannot conclude that the trial judge abused his discretion by admitting A137-147 on the basis that the answers were relevant to Watson's testimony, particularly given that the trial judge did not admit A132-134 because they were irrelevant, confusing and potentially unfairly prejudicial, and also apparently did not admit A135 and A136.[14]
Answers 207-219[15]
The trial judge admitted A207-219, but did not give a reason for doing so. The State argued that these answers were relevant to the voluntariness of Akhee Flonnory's "dry statement." The defense argued that the answers did not establish that Akhee's statement was voluntary. During trial Akhee repudiated the statements he made during interrogation. He claimed that the statements were not truthful because he was under the influence of drugs during the police interrogation and wanted to get out to get his drugs. He claimed that he was a drug addict who used "every day, all day" lied "to anybody and everybody." He stated, "I said a whole lot of bullshit to try to get me out of whatever I was in." Moreover, Akhee recanted his statements in an Affidavit he sent to the prosecutor in 2002. We cannot say that the trial judge abused his discretion in admitting A207-219. Akhee was a turncoat witness who testified that he lied about everything he said to the prosecutors and that he was under the influence of drugs at the time he made the statement. It was not error to admit this portion of Akhee's statement.
b. September 22, 1998 Statement
By order dated January 14, 2004, the trial judge admitted into evidence *519 three pages of handwritten notes taken by Lieutenant Dunning from an interview with Akhee Flonnory. The notes indicated that during the conversation, "Akhee advised [that] Freddie told him everything, not the night it happened but maybe one to two days later." The defense argued to the trial judge that the State had previously conceded that "almost the entirety of the August 12, 1997 interview was based on hearsay knowledge." The defense continued:
[w]ith two prosecutors present during the September 22... interview...the prosecutors and chief investigating officer fail[ed] to memorialize the hearsay and nonhearsay aspects of Akhee's Flonnory's information. Thus, the notes are inexcusably unrecorded by tape. More importantly, they fail[ed] to delineate in any fashion, the bases for the statements made by Akhee during the interview.
As the trial judge implicitly found, this argument is without merit. The notes clearly indicate that Akhee's statements were based on what Flonnory told him. Accordingly, the trial judge did not err in admitting the notes. Again, Flonnory's statements to Akhee were not hearsay under D.R.E. 801(2)(A) and Akhee's out-of-court statements to the prosecution were admissible under 11 Del. C. 3507.
c. September 24, 1998 Statement
By the same order of January 14, 2004, the trial judge ruled that the Statements in the September 24, 1998 audio tape were admissible. Again the defense argued to the trial judge that the statement was replete with responses by Akhee that made "it clear that Freddy Flonnory was not the source of his information." While the defense's argument is at least a plausible interpretation of portions of the statements, other portions of the statement strongly support the State's argument that Flonnory told Akhee the majority of the information Akhee relayed to the interrogators.[16] In many cases, the interrogator *520 asked Akhee if Freddie told him something and Akhee responded in the affirmative. In other cases, Akhee said that "they" or "all `em" said something. Given the context, the "they" or "all `em", as a factual matter, could include both Flonnory and Twyman. Akhee's statement was, thus, in large part admissible under D.R.E. 801(2)(A) and 3507. While we may have found differently had we been the finder of fact in the first instance, we will not disturb the trial judge's factual findings absent an abuse of discretion.
However, some portions of the September 24, 1998 Statement were inadmissible. In answers A38 and A39, Akhee said that Korey said something. The State argues that the co-conspirator exception[17] to the hearsay rule applies generally to statements Twyman made to Akhee because (i) Akhee accompanied Twyman on the majority of the trips Twyman took after the incident while trying to evade law enforcement, and (ii) during those trips Twyman made statements to Akhee about the homicides. This argument is misplaced. Akhee was not part of the original conspiracy. Even if he did accompany Twyman on the "majority" of these trips and made statements about the homicides, the co-conspirator hearsay exception would not apply. The defense correctly notes that:
whatever conspiracy existed between Flonnory and Twyman ended on the same night as it began no later then, when, [in the State's words], "... Robinson *521 returned the two to 24th and Market Streets where Flonnory and Twyman bragged to their relatives and friends how they had used all of the ammunition to shoot up the block...." Defendant and Twyman were not co-conspirators at the time of Twyman's statements to Akhee...[b]ecause the[ir] conspiratorial objective was accomplished.[18]
More importantly, as the defense notes, it does not appear that the trial judge actually relied upon or even mentioned this exception to the hearsay rule in admitting any of Akhee's answers. Accordingly, it was error for the trial judge to admit portions of Akhee's September 24, 1998 statement where Akhee recounted what Korey said, because there was no hearsay exception for Korey's hearsay within hearsay statement. It was also error for the trial judge to admit A120-A122, where the "girls and all that" appeared to be the source of Akhee's knowledge as there was no hearsay exception for the "hearsay within the hearsay." Nevertheless, we find these minor errors to be harmless beyond a reasonable doubt.[19] Accordingly, Flonnory's argument on this point of appeal fails.[20]
Crawford
Finally, we note that the defense's Crawford[21] argument is misplaced. The majority of Akhee's out-of-court statements were either based on personal knowledge or hearsay statements that Flonnory made to Akhee. Because Akhee was present at the trial and subject to cross-examination, the admission of those statements did not deprive the defendant of either his right to confront or to cross-examine his accusers.
Under Crawford, "[t]estimonial statements of witnesses absent from trial [can be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity *522 to cross-examine."[22] Moreover, "when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements."[23] Finally, statements a declarant makes to the police are "testimonial" under Crawford.[24]
In this case, the declarant, Akhee, was available to testify at trial. The defense had an opportunity to cross-examine him about his out-of-court statements. Furthermore, the vast majority of the admitted out-of-court statements were based either on Akhee's personal knowledge or, when they were double hearsay, were based upon the defendant Freddy Flonnory's statements to Akhee. To the extent that Akhee's statements recounted inadmissible hearsay (i.e., statements Korey made to Akhee or that Akhee heard from "Rell" or the "girls and all that"), given the weight of the evidence and the totality of the facts in the record, any Crawford error that resulted from the defendant being unable to cross-examine the out-of-court declarant was harmless beyond a reasonable doubt.[25]
2. Admission of Joy Watson's 3507 Statement.
During the course of his interview with the police, Akhee Flonnory suggested that the police interview his girlfriend, Joy Watson. Thereafter, FBI Agent Stranahan interviewed Watson for approximately 35 or 40 minutes. As he did so, Stranahan took shorthand notes. Before trial, the defense filed a motion in limine seeking a ruling that Stranahan's proposed hearsay was inadmissible under 3507 because it was his "interpretative narrative" rather than Watson's actual statement. The trial judge denied this motion stating: "the Court cannot conclude at this point that the Agent's rendition or recollection of Ms. Watson's statement, assuming a proper foundation is laid, will not comply with ... 3507." During the trial, the State laid the foundation for Stranahan's testimony by questioning him about how he took his notes. In an oral ruling, the trial judge concluded:
Based on what I have heard I don't think it comes close to being an interpretative narrative. What I heard the agent testify to was that he had written down words said by the person that he was interviewing, which gave him certain factual information that he thought was important to be recorded. 3507 does not require that there be a verbatim recordation of everything that is said by an interview to come into evidence. As the State has pointed out, even ÔÇö and statements are permissible. Certainly in this particular case you *523 have a trained agent who wrote down those things that he felt was important and he says that they are the words of the witness and not his interpretation of the words. So I'm going to overrule the objection.
After the jury was brought back in, the State called Watson to the stand. In response to most of the State's questions, Watson responded that she could not remember. The State then called Stranahan as a 3507 witness. Stranahan read verbatim the redacted notes he took from the interview to the jury. The prosecutor then asked Stranahan "if we can start from the top. In speaking with [Watson] can you tell us exactly what she was saying. [W]ith respect to the first line, what did she tell you?" The defense again objected that this was interpretative narrative. The trial judge overruled the renewed objection. We review a trial judge's decision on the admissibility of a 3507 statement for abuse of discretion.[26]
The defendant's "interpretative narrative" argument derives from Huggins v. State[27], in which we discussed the former version of 3507:
The Statute does not distinguish between written and oral statements. The Statute admits as affirmative evidence "the voluntary out-of-court prior statement of a witness". It is the statement of the declarant that is being admitted, not the interpretative narrative of the person who heard the statement. Care should be taken to guarantee that the Statute is not abused by permitting a witness, such as a police officer, to embellish the prior statement by his own interpretation, even if the embellishment is made in the utmost good faith. Obviously, the best protection in this regard is a written statement. In the case of oral statements, the best safeguard would seem to be in foundation questions establishing the time, the place and the person to whom the statement was made. These are the traditional safeguards in treating a witness fairly when impeaching him by a prior inconsistent statement. It would seem that no less a standard should be required for evidence having "substantive independent testimonial value."[28]
As we have previously noted, "the Huggins case established that great care should be taken to avoid the embellishment of out-of-court statements which are the subject of testimony at trial."[29] Despite the defense counsel's question to Stranahan on cross-examination ÔÇö "would it be fair to say that your notes or interpretive [sic] were an interpretive ÔÇö narrative of what [Watson] said to you that evening," ÔÇö and Stranahan's answer ÔÇö "Maybe somewhat," ÔÇö we still cannot find that the trial judge abused his discretion by admitting the evidence. "Interpretative narrative" is a legal term of art in Delaware, one with which Stranahan was unfamiliar when he responded to the defense counsel's question. The trial *524 judge, who was intimately familiar with the facts of the case, could assess the demeanor of the witness, and could determine more accurately than we whether the witness was testifying to the "words of the [declarant] and not his interpretation of the words." The trial judge in this case clearly took great care to avoid the embellishment of Watson's 3507 statements introduced at trial. Stranahan's answer to the defense counsel's question notwithstanding, the trial judge made a factual finding that Stranahan wrote down the "words said by the person that he was interviewing, which gave him certain factual information that he thought was important to be recorded." Accordingly, the trial judge did not err by admitting Watson's statement.[30]
3. Admission of Audio and Video Taped Recordings of 3507 Statements as Trial Exhibits.
We next consider Flonnory's contention that the Superior Court erroneously denied his motion made before trial to preclude the State from introducing at trial any exhibit that purported to "memorialize the voluntary out-of-court statement of a witness on the ground that any such exhibit, as opposed to in-court testimony concerning such statements, constituted inadmissible hearsay not within the legitimate scope of ... 3507." In support of his motion, Flonnory urged the trial judge to adopt a strict construction of 3507, to "authorize actual in-court testimony as to (or the playing of the recordings of) out-of-court statements as affirmative evidence... [but not] the further introduction of memorializations of the out of court hearsay statements as exhibits."
In an oral ruling, the trial judge denied this motion, citing the best evidence rule and noting that the tape was "actual substantive evidence" and that the jury was "entitled to see it like any other evidence that's admitted; such, as photographs, maps, [and] written documents....." The State then introduced several video and audio taped exhibits of 3507 witnesses, as well as police officers' notes of witness interviews.[31] We review a trial judge's decision to admit a written or recorded 3507 statement as a trial exhibit for an abuse of discretion.[32]
*525 On appeal, Flonnory again urges us to adopt a construction of 3507 that would permit either (1) in-court testimony about the out-of-court statement or (2) the playing of the recording of the statement, but not the introduction of the statement as a separate trial exhibit that the jury could take with them into the jury room during deliberations and replay numerous times. He relies on Taylor v. State.[33] In Taylor, during jury deliberations, the foreperson of the jury orally requested the bailiff to provide a transcript of the defendant's testimony. The bailiff did not take the request seriously and did not pass it on to the trial judge, in part because the bailiff thought the foreperson was joking. The jury resumed its deliberations and never submitted a written request to the trial judge as they had previously been instructed to do. For reasons not disclosed in the record, during the penalty phase of the trial, the bailiff came forward and informed the trial judge of this incident. The trial judge met with counsel and had the bailiff describe the incident under oath. After hearing the bailiff's testimony, defense counsel moved for a new trial on the grounds that the communication between the bailiff and the jury prejudiced Taylor. The trial judge denied the motion, finding that the error was harmless because the judge would have denied the jury's request for a transcript even if proper procedure had been followed.[34] We affirmed the trial judge's ruling, accepting the trial judge's rationale that when a jury request for a transcript of testimony is denied, it is usually because: (1) the request may slow the trial where the requested testimony is lengthy; and, (2) when reading only a portion of the entire trial testimony, the jury may give undue emphasis and credence to that portion of the testimony and may fail to consider the trial testimony as a whole.[35]
Taylor does not stand for the proposition that a trial judge may never introduce a transcript of the in-court testimony of a trial witness as an exhibit. A trial judge has "broad discretion in determining whether, and to what extent, a jury in deliberation should be permitted to rehear testimony."[36] The trial judge has broad discretion to allow a jury to rehear testimony in any form, (e.g., having the court reporter reread portions of the testimony[37] or having transcripts of testimony prepared). It follows that the trial judge has broad discretion to admit as exhibits (that go into the jury room during the jury's deliberations) tape or video recordings or other "memorializations" of a 3507 witness's out-of-court statements that were properly played in the jury's presence during the course of the trial.
We caution, however, that admitting a witness's out-of-court written or recorded 3507 statement as a trial exhibit that goes into the jury room during jury deliberations should be the exception rather than the rule. In practice, a non- 3507 appearing witness's testimony before a jury is rarely, if ever, transcribed and given to the jury during their deliberations. Similarly, a 3507 witness's in-court *526 direct testimony[38] and cross-examination testimony[39] is also rarely, if ever, transcribed and given to the jury. In the case where the proponent of a 3507 out-of-court statement has no recording or written statement and, therefore, must prove the statement through the testimony of another witness who heard the 3507 statement, that trial testimony is also unlikely to be transcribed and given to the jury. "[A]s a matter of practice, transcripts are not prepared absent a formal request in connection with post-trial proceedings."[40] Therefore, the potential delay in the trial to enable the transcripts to be prepared often militates against giving the jury transcripts of in-court testimony for their consideration during deliberation. Accordingly, it will almost always be within the trial judge's discretion to deny a jury's request for a transcript of a witness's statement.[41]
Like all other evidence, 3507 evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence."[42] As a general matter, recorded or written out-of-court 3507 statements that are played or read during trial should not be admitted as separate trial exhibits that the jury can take into the jury room during deliberations when all other testimony ÔÇö including direct and cross-examination testimony of a 3507 witness, out-of-court 3507 statements presented by a witness other than the 3507 declarant, and testimony presented by non- 3507 witnesses ÔÇö are generally not admitted as separate trial exhibits in transcript form after the witness testifies in court. The reason derives from the concern we discussed in Taylor, that allowing the jury to have transcripts of trial testimony during their deliberations might result in the jury giving undue emphasis and credence to that portion of the testimony. That concern is equally applicable to written or recorded 3507 statements that are admitted into evidence as separate exhibits after they have been heard in open court. Thus, we hold that the "default" rule is that written or tape or video-recorded 3507 statements should not be admitted into evidence as separate trial exhibits that go with the jury into the jury room during deliberations although the statements may be played or read to the jury in the first instance during the course of trial[43] (provided, *527 of course, that the other 3507 requirements are satisfied.)[44] The trial judge does, however, have discretion to depart from this default rule when in his judgment the situation so warrants (e.g., where the jury asks to rehear a 3507 statement during its deliberations[45] or where the parties do not object to having the written or recorded statements go into the jury room as exhibits[46]). The trial judge's broad discretion in these circumstances is coextensive with his discretion to allow or to refuse to allow the jury to rehear in-court trial testimony of any witness.
We note that the 3507 "default" rule applies narrowly only to written or recorded 3507 statements of witnesses other than the criminal defendant. The default rule does not apply to written or recorded confessions or incriminating statements[47] a defendant makes directly (by his own hand or mouth) when those statements are admissible as trial exhibits without the use of 3507 or even when the State uses 3507 to admit a defendant's *528 statement. Generally, the State will not need to use 3507 to introduce the defendant's confession or incriminating statement against him because D.R.E. 801(d)(2) applies to admissions by party opponents. A defendant's confession or incriminating statement is clearly an admission by a party opponent. As such, D.R.E. 801(d)(2) provides that it is not-hearsay.[48] Thus, there is no hearsay bar and a defendant's written or recorded confession will be admissible as a trial exhibit, provided all of the other Constitutional and procedural requirements for admitting the confession are satisfied. While as a general rule "exhibits which are testimonial in nature may not be given to the jury during its deliberations, an exception is made for written or recorded confessions in criminal cases."[49] This exception is "apparently based on the theory that the centrality of such confessions to the case warrants giving the jury access to them during deliberations."[50] Thus, although the same general concern that we have about giving the jury access to written or recorded 3507 statements during their deliberations ÔÇö that the jury might give undue emphasis and credence to those statements over all of the other trial testimony ÔÇö arguably applies to confessions or other incriminating statements of a defendant, we think that written or recorded confessions or incriminating statements of a defendant properly admitted (whether through 3507 or otherwise) should generally go into the jury room during deliberations because of the *529 centrality of the confessions or incriminating admissions to the State's case.[51]
This is not to say that the defendant can never keep his confession or incriminating statement from going into the jury room during jury deliberations (because of the undue emphasis concern) by making a timely objection. But, to prevent that result, the defendant has the very heavy burden of showing that the probative value of allowing the his confession into the jury room is substantially outweighed by the danger of unfair prejudice.[52] We note that it will almost always be within a trial judge's discretion to allow the defendant's written or recorded confession or incriminating statement to be admitted as a trial exhibit that goes into the jury room during jury deliberations.
The State contends that this 3507 "default rule" runs against decades of practice and jurisprudence, citing Atkins v. State[53], Feddiman v. State[54], and Norcross v. State[55] for the proposition that the admission of recorded 3507 statements as exhibits that go into the jury room during jury deliberations is well-established. Putting to one side the fact that decades of practice is not a legally cognizable reason to support the automatic admission into evidence as separate trial exhibits of written or recorded 3507 statements that the jury has previously heard during the trial, these cases do not advance the State's position because they addressed the use of transcripts in conjunction with recordings admitted without objection. The cited cases did not discuss the use of recorded or written 3507 statements as separate trial exhibits that went into the jury room during the jury's deliberations because the defendants in those cases did not raise this objection. Our ruling today does not disturb the rulings or reasoning of any of those cases.
State v. Cousins[56], a case involving a defendant's post-conviction relief proceeding, is also relevant to this case. There, the trial judge found that "all of the [defendant's] claims involving the introduction of [a] videotape [were] procedurally barred." One of the defendant's ineffective assistance claims was that his attorney should have objected to allowing a videotape of a witness interview to go into the jury room during the jury's deliberations. In evaluating this claim, the trial judge noted,
The jury is allowed to have exhibits and if audio tape or video tape is in evidence, the jury gets any equipment to play it. The video tape was introduced into evidence ... Nevertheless, assuming an objection could have prevented the video tape from being considered during jury deliberations, the Defendant has established no prejudice whatsoever other than his conclusory claim that he was denied a fair trial. The claim fails.[57]
In an order affirming that ruling, after agreeing that the defendant's claims with *530 respect to the admission of the video-tape were procedural barred, we noted that: "It was not error for the Superior Court to provide the videotape of the interview to the jury during its deliberations. Physical evidence admitted against a defendant at trial is appropriately submitted to the jury during its deliberations at the judge's discretion."[58] Nothing in our Order in Cousins is inconsistent with the legal rule and result that we reach today. In our Order affirming the Superior Court judge's decision, we simply noted that the trial judge did not err by submitting the videotape to the jury during its deliberations. This is in accord with the rule we adopt today. If there is a request from an offering party to supply audio or video playback equipment to the jury and to allow the 3507 statements into the jury room as exhibits, the judge is empowered, as a discretionary matter, to grant the application. By whatever form an application may be made to allow a 3507 statement into the jury room (whether on the motion of a party or at the request of a jury), the trial judge must weigh the relative prejudice to the parties against the danger of unfairly emphasizing one piece of testimonial evidence over that of all other testimonial evidence.[59]
In the case at bar, the trial judge relied on the best evidence rule as a rationale for admitting the 3507 statements as separate trial exhibits. We acknowledge that the best evidence rule may be applicable to 3507 statements. Thus, where a recording of a conversation and a transcript of that conversation both exist, the proponent of the out-of-court statement must introduce the recording and not the transcript to satisfy the best evidence rule.[60] But, that rule is not a proper rationale for admitting the recording as a trial exhibit that goes into the jury room during the jury's deliberation after the proponent has played the recording or had the writing read to the jury during the trial itself. By relying on the best evidence rationale alone, the trial judge failed to exercise properly his DRE 403 discretion to decide whether to admit the 3507 statements as separate trial exhibits that would be available to the jury during deliberations. A proper analysis required the trial judge to determine whether the benefits of admitting *531 the 3507 statements were outweighed by the danger of unfairly emphasizing the testimony of one witness over the testimony of others. Notwithstanding that, after a careful review of the record and given the weight of the evidence, we are satisfied that any error in the admission of the recorded or written 3507 statements as exhibits that went into the jury room during deliberations in addition to being properly played or read at trial was harmless beyond a reasonable doubt. Accordingly, Flonnory's third argument on appeal must fail.[61]
4. Brady Violation ÔÇö State's Failure to Provide Flonnory with Revised Transcription of Witness's Statement
During the course of pre-trial discovery before Flonnory's first trial, the State provided the defendant a copy of a videotaped statement that Lionel "Moose" Robinson, the "gypsy" taxi driver who took Flonnory and Twyman to the scene of the shooting, gave to the police. The State also produced a transcript of Robinson's statement. The State's submitted version of the transcript, however, omitted Robinson's observation that both Flonnory and Twyman were in possession of semi-automatic weapons and that neither had a revolver.[62] Thus, at Flonnory's first trial, Robinson was not questioned about the weapons alleged to be involved. The State's theory of the case was that Flonnory shot and killed Farmer with a revolver. At his first trial Flonnory testified that he was not armed and did not fire. Moreover, the defense contended, return gunfire was involved and that Flonnory never had a revolver.
Several months later, before Twyman's trial, the State provided Twyman's counsel with a corrected version of Robinson's transcript.[63] During Twyman's trial, Robinson testified that he saw neither Twyman *532 nor Flonnory with a revolver on the night in question.
Before Flonnory's retrial, Flonnory moved to "Preclude a Death Sentence And Use of Defendant's Prior Testimony" as evidence in the new trial. The ground for the motion was that the State did not timely disclose the exculpatory evidence from Robinson's transcript that on the night of the murder Robinson observed Flonnory with a .9 millimeter semi-automatic weapon. The trial judge denied this motion, noting that, "[i]t is undisputed that the Defense had access to ... Robinson's video taped statement prior to the introduction of the statement at Flonnory's trial...The jury, the defense, and the judge had access to the exculpatory evidence during the Flonnory trial."
Flonnory appeals from the Order denying the motion. Flonnory contends that by failing to provide him with an accurate transcription of Robinson's statement, the State violated its obligations under Brady v. Maryland[64] to disclose all material exculpatory evidence to the defendant. Although Flonnory had access to this information before his second trial, Flonnory argues that if he had the information before the first trial that he would not have taken the stand to testify because "meaningful disclosure that Robinson told the police that he saw Flonnory with a semi-automatic, not a revolver, would have rendered Flonnory's testimony unnecessary" to support his return gunfire defense.
We find Flonnory's argument unpersuasive. The State produced a copy of the videotaped statement to defense counsel before the first trial. Flonnory does not claim otherwise. The defendant had an obligation to review the first transcript and the video taped recording of Robinson's statement to ensure that the transcript accurately reproduced the statement. "[T]he [State] will not be found to have suppressed material information if that information also was available to a defendant through the exercise of reasonable diligence."[65] The State did not violate its Brady obligations by producing an inaccurate transcription of Robinson's statement before the first trial, because it also produced an accurate video taped copy of Robinson's statement. Had the defense reviewed the video tape in conjunction with the transcript, it could have uncovered the transcription error. Accordingly, Flonnory's argument must fail.
5. Admission of Dwayne Warren's Former Testimony
During Flonnory's first trial, the prosecution called Dwayne Warren. Warren testified and the defense then had the opportunity to cross-examine him. At the first trial, Warren claimed that he did not carry a weapon and that, while he was initially going to retaliate for the shooting, he had given up the idea of retaliation.[66] Two days after his testimony, Warren was arrested and later convicted of robbery and assault.[67] Warren attempted to plead *533 "guilty but mentally ill" in connection with the robbery/assault proceedings. During a court-ordered evaluation relating to the plea, Warren reported to the doctor conducting the evaluation that the events underlying the robbery/assault were triggered by a psychological trauma such that every time he saw a white van he "went off" because the vehicle driven by the perpetrators of the crime for which Flonnory was charged was a white van.
Before Flonnory's second trial, the State moved "for an Order in Limine admitting the former testimony ... of various potentially unavailable witnesses" under D.R.E. 804. With certain conditions (i.e., the State was required to demonstrate the unavailability of the witness at trial), the trial judge granted the State's motion.
During Flonnory's second trial, the State called Warren to the stand. Out of the presence of the jury, Warren invoked his Fifth Amendment privilege against self-incrimination based on his own set of pending First Degree Murder charges. Consequently, he was unavailable to testify in Flonnory's retrial. After Warren invoked his privilege against self-incrimination, the State had Warren's former testimony read into the record.
On appeal, Flonnory claims that it was error for the trial judge to allow the State to introduce Warren's former testimony because doing so violated Flonnory's constitutional rights to confront and to cross-examine Warren. Specifically, Flonnory argues that he had no meaningful opportunity to cross-examine or to confront Warren's claim of non-violence in his former testimony, with Warren's later convictions for robbery and assault. Flonnory also argues that he had no opportunity to cross-examine the doctor who conducted Warren's psychological evaluation about Warren's "white van" statement which, Flonnory claims, supports Flonnory's return gunfire defense. Because Warren reported this allegedly "critical and potentially case-dispositive" fact after Warren's former testimony, Flonnory contends that defense counsel should have been entitled to cross-examine Warren on this fact. We review alleged constitutional violations relating to a trial court's evidentiary ruling de novo.[68]
Under D.R.E. 804(b) a declarant's former testimony is not excluded as hearsay if the declarant is unavailable as a witness in a later proceeding and the party against whom the testimony is offer had an opportunity and similar motive to develop the declarant's former testimony by direct, cross or redirect examination. Crawford holds essentially the same: testimonial evidence offered against a defendant by a witness not present at trial can be admitted only where the witness is unavailable and only where the defendant has had a prior opportunity to cross-examine the witness.[69] In Johnson v. State we discussed Crawford's cross-examination requirement as follows:
Crawford did "not expressly require any specific quality of cross-examination...." The Confrontation Clause only guarantees a defendant the opportunity for effective cross-examination of the declarant, *534 not effective cross-examination in whatever way and in whatever manner a defendant may wish. Thus, when a witness takes the stand at trial, and is subject to cross-examination, the traditional protections afforded under the Confrontation Clause are satisfied.[70]
In the present case, Flonnory had a similar motive and opportunity to cross-examine Warren during Flonnory's first trial. At the retrial, Flonnory may not have had the opportunity for "effective cross-examination in whatever way an in whatever manner he may have wished", but the cross-examination at the first trial[71] was sufficient to satisfy Crawford and D.R.E. 804(b).[72]
Assuming arguendo that it was error to admit Warren's former testimony at Flonnory's second trial, the error would have been harmless. At the retrial, after Warren's testimony was read into the record, the trial judge read the jury a stipulation the parties had reached regarding Warren's conviction. The trial judge informed the jury that "Warren pled guilty to Robbery First Degree and a charge of Assault second degree, both felonies, as a result of an incident which occurred on October 16, 1998. The gun used in that offense was a nine-millimeter semi-automatic, [with] which Dwayne Warren struck the victim." Moreover, the defense also introduced into evidence the doctor's notes from Warren's psychiatric evaluation, which included the following statement: "[Warren] reported experiencing panic and paranoia when seeing white vans reminiscent of ones used by the perpetrators." Even though Flonnory did not have the opportunity to cross-examine Warren about the events that occurred after Warren's former testimony or his statement during the psychiatric evaluation in connection with his guilty plea, Flonnory still had the opportunity to put that evidence before the jury and to comment on it in his closing argument. Accordingly, Flonnory's fifth argument on appeal must fail.
6. Trial Court's Alleged Error in Failing to Inform the Jury That Dwayne Warren Was Unavailable to Testify in Person at Flonnory's Second Trial Because He Invoked His Fifth Amendment Privilege.
As earlier noted, in Flonnory's second trial, Dwayne Warren invoked his Fifth Amendment privilege outside of the presence of the jury. The prosecution then had Warren's testimony from Flonnory's first trial read into the record. The defense argued to the trial judge that it was critical that the jury be told why Warren was unavailable and that his unavailability was "not through death, through *535 any misconduct, or any threat by Mr. Flonnory, or anyone associated with him." Flonnory thus asked the court "to take judicial notice or to instruct the jury on the reasons for [Warren's] unavailability." The State responded that the Court should not instruct the jury that Warren was unavailable by reason of having invoked his Fifth Amendment privilege, because that would encourage the jury to speculate about why he did so.
In an oral ruling, the trial judge agreed with the State's speculation argument. The trial judge concluded that "simply say[ing] that the witness is unavailable ... explains it, as far as the jury needs to know. I'm going to deny the motion to give instructions with respect to the Fifth Amendment." In accordance with his ruling on this motion, before permitting the State to have Warren's testimony read into the record, the trial judge informed the jury: "you're going to hear testimony read from Mr. Warren who is unavailable to testify at this trial." During the State's rebuttal closing argument, after a defense objection, the trial judge again instructed the jury about Dwayne Warren's unavailability at the trial, this time explaining why he was unavailable:
Ladies and Gentleman, you are instructed that Dwayne Warren was unavailable to testify at this trial because he is currently facing charges that don't arise from this particular incident.
On appeal Flonnory argues that introducing Warren's former testimony without either requiring Warren to invoke his Fifth Amendment rights in front of a jury or, at a minimum, informing the jury of the reason for his unavailability violated Flonnory's constitutional rights to cross-examination and confrontation. We review issues involving the constitutional rights of a defendant de novo.[73]
Permitting a witness to invoke the Fifth Amendment outside the presence of a jury does not violate the Constitutional rights of a criminal defendant.[74] Accordingly, the only issue we need to address is whether the trial judge, must, "at a minimum", inform the jury that a witness is unavailable for any appropriate reason other than because the witness invoked his Fifth Amendment privilege. We hold that the answer is yes.[75] As the D.C. *536 Circuit noted in Bowles v. US: "It is well settled that the jury is not entitled to draw any inferences from the decision of a witness to exercise his constitutional privilege whether those inferences be favorable to the prosecution or the defense."[76]
In Bowles, the trial judge refused to allow the defendant to call a witness after he ascertained, out of the presence of the jury, that the witness intended to invoke the Fifth Amendment. On appeal, the Court noted that the trial judge "properly admonished counsel to make no mention in their closing argument of the lack of testimony from a witness counsel knew would have invoked the Fifth Amendment,"[77] but that the "trial judge could properly have given a neutralizing instruction, one calculated to reduce the danger that the jury will in fact draw an inference from the absence of such a witness."[78] Moreover, "[h]ad either counsel requested the court to instruct the jury that they should draw no inference from [the witness's] absence because he was not available to either side, it would have been error to refuse this instruction."
Most cases that address the propriety of a "neutralizing instruction" involve facts like those in Bowles where the defendant sought to call a witness who, out of the presence of the jury, invoked the Fifth Amendment.[79] Although in this case, it was the prosecution that sought to call Warren, we, nevertheless, believe that the concern that the jury might draw an adverse inference from the absence of a witness is also present where the defendant did not want to call the witness in the first instance, but the prosecution seeks to introduce the former testimony of that witness. Although ideally the trial judge should have given the neutralizing instruction before Warren's earlier testimony was read into the record and should have admonished the jury that it could not draw any inferences from Warren's absence at trial, the trial judge's instruction to the jury about Warren's testimony during the course of the State's rebuttal closing argument was sufficient to satisfy our concerns in this case.[80] The trial judge's instruction sufficiently informed the jury of the reason for Warren's unavailability and prevented the jury from speculating about why Warren was absent from Flonnory's retrial. Accordingly, the trial judge did not err, as Flonnory suggests, by failing to, "at a minimum, inform the jury of the reason for Warren's unavailability."
*537 7. Trial Judge's Denial of Flonnory's Motion for A Judgment of Acquittal on the First Degree Murder Charges
After the State rested its case. Flonnory moved for a judgment of acquittal on the First Degree Murder Charges. The trial judge denied the motion. Flonnory now appeals this ruling. We review de novo a trial judge's denial of a motion for a judgment of acquittal to determine whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could find the defendant guilty beyond a reasonable doubt of all the elements of a crime.[81] On appeal Flonnory also argues that there was insufficient evidence to support the Attempted Murder charge, although Flonnory concedes that his motion for a judgment of acquittal before the trial judge did not address the Attempted Murder charges. Therefore our standard of review with respect to the Attempted Murder convictions is plain error.[82] Even under a de novo standard, we find that there is sufficient evidence for a rational finder of fact, viewing the evidence in the light most favorable to the State, to find Flonnory guilty beyond a reasonable doubt.
A person is guilty of First Degree Murder when that person intentionally causes the death of another person.[83] To be guilty of attempted murder, a person must intentionally engage in conduct that would constitute murder if the circumstances were as he believed them to be.[84] A person acts intentionally when, "it is the person's conscious object to engage in conduct of that nature or to cause that result."[85] Flonnory argues that no rational finder of fact could conclude beyond a reasonable doubt that Flonnory intended death as a result of either Twyman's and/or his actions. We disagree.
The State presented evidence including: on July 1, 1997 Adams shot Korey Twyman, shot at Flonnory with one bullet passing through Flonnory's clothing; and another bullet hitting Flonnory's mother's car when his nieces and nephews were inside. This evidence established Flonnory's a motive to exact revenge. On the night when Twyman decided to retaliate, Flonnory joined him, stating "let's go do them, handle our business." The jury could reasonably interpret "do[ing] them" as "shooting them." Flonnory took a balled up black hooded sweatshirt with him when he got into Robinson's car. The location of the shell casings in the mouth of the alleyway suggested an ambush of the intended targets. Adams, Warren and Farmer all suffered multiple gunshot wounds. After the shootings, when Flonnory got back into Robinson's car, he was wearing the hooded sweatshirt that he had balled up when he first got into the car. Flonnory then tried to put the "hoodie" over the stock of the gun. Flonnory and Twyman bragged to their friends about how they had used up all of their ammunition to "shoot up the block." Given the context, the jury could rationally have concluded that Flonnory had the requisite intent to support convicting him of First Degree and Attempted Murder. The trial judge did not err by refusing to grant Flonnory's judgment of acquittal with respect to the First Degree Murder charge, *538 and there is no plain error with respect to the Attempted Murder charge.
8. Prosecutorial Misconduct ÔÇö Alleged Improper Remarks During Closing Arguments
Flonnory argues that the Deputy Attorney Generals made improper remarks during summation and rebuttal because they vouched for witness's credibility, commented on the defendant's exercise of his right to remain silent, and attacked the defendant's character. We review a claim of prosecutorial misconduct de novo to determine whether the conduct was improper or prejudicial.[86] To the extent we find that prosecutorial misconduct exists, we then consider (1) the closeness of the case; (2) the centrality of the issue affected by the alleged error; (3) the steps taken to mitigate the effects of the alleged error[87]; and (4) whether the prosecutor's statements were repetitive errors that require reversal because they cast doubt on the integrity of the judicial process.[88]
Flonnory cites three instances of alleged prosecutorial misconduct in the State's summation and rebuttal arguments. He first argues that the prosecutors improperly injected their personal beliefs concerning the credibility of witnesses and Flonnory's character by stating:
Some witnesses had difficulty recalling every detail of their earlier interviews. Some witnesses didn't want to recall them at all when faced eyeball to eyeball with the defendant. Remember what Parsons said? It is not cool to be a snitch. Is it not likely that they are the witnesses who want to remain silent when they are face-to-face with the defendant[?]
After hearing this comment, the defense immediately requested to approach the bench. Defense counsel argued to the trial judge that this statement represented a personal opinion of the prosecutor that "people would be afraid of Freddy Flonnory." He then asked for a mistrial. The prosecutor responded that this statement was "merely an explanation why in private [people] will say one thing but in the presence of other individuals they may not give the same explanation because, as Renee Parsons says, it is uncool to be a snitch." The trial judge concluded, "I'm going to let the prosecutor go on with the summation. I think that depending on how that goes, obviously, there could be no inference whatsoever that there is a fear of the defendant because there is no evidence in the record.... If it is clear as to what you are saying then I think that solves the problem if there is any created." Defense counsel then requested that the trial judge give the jury a curative instruction that there was no evidence that the witnesses were afraid of Flonnory. The trial judge declined to do so, noting "that would raise the whole issue of violence, that would be more prejudicial." After the sidebar the prosecutor continued:
It is true, ladies and gentlemen, that memories can fade and people recall different things differently at different points in their lives. Human nature being what it is, people will give statements behind closed doors or with a police officer when they are trying to benefit themselves. But in the clear *539 light of day when it is going to be known publicly they provided information, they don't want to accept responsibility for their prior statements. Certainly, many of these people were friends and family of the defendant. Is it any wonder they wouldn't want it to be known they, in fact, had provided such information or be looked at as a snitch? Because as Renee Parsons says, it is not cool to be a snitch.
The prosecutor then continued with summation without further objection from the defense.
It is well-settled that prosecutors may not express their personal opinions or beliefs about the credibility of witnesses or about the truth of any testimony.[89] In this case, however, as a factual matter, we do not think that the statements are personal opinions that amount to improper prosecutorial comment. The defense seizes upon one sentence in the first paragraph, "some witnesses didn't want to recall [every detail of their earlier interviews] at all when faced `eyeball to eyeball' with the defendant," and uses that sentence to suggest that the prosecution expressed personal beliefs about Flonnory's character and several witnesses' credibility by implying that the witnesses were afraid of Flonnory. We disagree with this interpretation. The statements, read in context, were not improper expression of personal beliefs about the credibility of the witnesses, but rather were possible explanations for why several witnesses in the case took the stand and failed to remember their earlier statements. Moreover, in context, the prosecutor was not arguing that the witnesses were afraid of Flonnory. Accordingly, there was no misconduct and no need to now engage in the Hunter-Hughes inquiry.
Flonnory also contends that the prosecution made a "recklessly inaccurate statement which seriously denigrated" his defense. The statement in which the prosecution alleged misrepresented evidence was:
Ladies and gentleman, the defense put up a list of, quote, suspects in this return gunfire theory. They are asking you to speculate, to guess. They are hoping you might buy that ÔÇö the list really doesn't make a whole lot of sense ÔÇö this white van sticks out. Out of all the reams of paper that are involved in this case, probably thousands, maybe even hundreds of thousands of pieces of paper in this case, they take out one line.
At this point, defense counsel objected that the prosecutor was commenting about matters not in evidence. The prosecution agreed to rephrase his statement; he continued:
Ladies and Gentleman, out of all the paper that is involved in this case, no matter how much it is, it certainly is a lot, the defense takes one line out of one report that says something about Dwayne Warren and white vans and throws it up against the wall to see whether it will stick or not.
What evidence did they ÔÇö let me rephrase that, your Honor.
How much faith can you have in that one line taken out of one report? It was an evaluation of Dwayne Warren in August of '99, more than two years after the incident. And Dwayne Warren apparently, from the report, is suffering emotionally over what happened. He is very emotional, his cousin got killed, all right in front of him, panic, anxiety. This is the guy that, he testified in his former testimony, that he actually *540 tripped over his cousin's body as he was trying to get away from the shooting. The guy that was right there when he died. I'm hit. The last words he says is Smoke.
You didn't hear anything else about that. One line. Did Dwayne Warren say it. Don't know. Did Dr. Zewell get it right? Don't know. Did he record it accurately in his report? Don't know.
The defense counsel then asked to approach the bench. He argued to the trial judge that the prosecution had taken advantage of the fact that Warren was unavailable for testimony because of the pending charges. In order to mitigate the effect of this statement, the defense counsel requested an instruction telling the jury that Warren was not available because he was facing other charges. The trial judge gave the jury that instruction.[90]
Again, in this area the law is well-settled: prosecutors may not misrepresent the evidence presented at trial.[91] Flonnory points to the prosecutor's statement that Warren's inconsistent statement was "one line" taken from "hundreds of thousands of pieces of paper" to argue that it was factually incorrect and referred to facts not in evidence. The defense notes that "there were not `hundreds of thousands of pieces of paper' presented as evidence or otherwise. Most of the evidence was testimonial. The magnitude of this representation of evidence is unacceptable."
We disagree. Given the context, it is clear that the prosecutor was merely using hyperbole to make a point. After the defense's objection the prosecutor rephrased his statement: "out of all the paper that is involved in this case, no matter how much it is, it certainly is a lot, the defense takes one line out of one report that says something about Dwayne Warren." Had the prosecutor made that (amended) statement to begin with, it would not have amounted to misconduct. The rephrased statement did not misstate the evidence yet made the same hyperbolic point as the initial statement. Given the broader context of the initial statement and its obvious hyperbolic nature, we cannot conclude that it amounts to prosecutorial misconduct.
Flonnory's final prosecutorial misconduct argument is that the prosecution improperly commented on the exercise of his right to remain silent. In evaluating this argument, we quote extensively the prosecution's statements to the jury:
The aftermath of the murders where is Freddy Flonnory? What does the defendant do after the shooting? After this, as he claims, is totally [sic] unexpected turn of events he lets Korey dispose of the guns, guns, as he says gun. Everybody else maintains there are two guns, but according to the defendant there is only one.
At this point, ladies and gentleman, the defendants [sic] in action [sic] is as conspicuous as his earlier actions. He never once claims to have questioned Korey about the firing of a gun. If what he says is true and that's totally unexpected and he gets back to the car, why doesn't he comment, what the heck was that? What were you thinking? I thought we were going over there and rumble. Nothing. He never yells at Korey, you are nuts, this is going to come back on us now.
He also never tells anyone about return fire they allegedly experienced at Sixth and Jefferson. It magically appears a year-and-a-half later in his testimony in *541 a prior proceeding. He gives the return fire story after he has the benefit of the ATF report, the report which has definitely concluded at that point that two guns were used. No such return fire explanation when he original talks to the police, because at that point there was no known evidence about two weapons. It wasn't until the November ATF report when it was exclusively known the ballistics of two separate guns being used.
Why doesn't he say something to Moose? Oh, my gosh, Moose, they started shooting back at us. There is no conversation about that either. They never go on back to the corner and say those you know what's fired back at us again. Not to anyone on the corner, not to Korey, not to Moose. We don't hear about it until a year-and-a-half later when he is testifying in another proceeding.
After hearing the last statement, the defense counsel interrupted and asked to approach the bench. In an ensuing sidebar, counsel argued to the trial judge that the prosecutor's comment to the jury was essentially a comment on Flonnory's right to remain silent. The defense counsel then moved for a mistrial, which the trial judge denied (the defendant did not appeal that decision). After denying the mistrial, the trial judge instructed the prosecutor to clear up the issue. She did that by stating:
As you will be instructed, your recollection controls with respect to the evidence.
The State simply submits to you that in his original statement there was no mention truly of a return gunfire, however, that was inconsistent with what he said some 15 months later when he provided testimony in a proceeding.
Several minutes later, the prosecutor made one more remark mentioning the 15 months: "Eventually the defendant recalls 15 months after that there was some type of return fire." The defense counsel approached the bench. Where the following sidebar conversation ensued:
Defense Counsel: We are returning, once again, to the suggestion that it is convenient that for the first time that he recalls there might be second gunfire 15 months later.
THE COURT: You are going to point out that you believe he said at the time of the interview something like there was return gunfire?
DC: Furthermore, he was represented by counsel by July 30th of that year and operating through counsel. To this idea, 15 months going by before saying anything, first of all, is telling the jury, well, this is the first trial, but 15 months before ÔÇö years before the first trial, then comes up with this. When did he first come up with the ÔÇö when does the State suggest he came up with that?
Deputy Attorney General: It is not unfair to comment when he says anything at the time he talks to the police and 15 months later he says something else. There is no inference to be drawn. I'm simply going to point out that he made the statement and in the interim had the benefit of the ATF report, and that's when the evidence of the two guns is known. He responded during a prior proceeding that there was return gunfire. I was going to add there was some indication that the seed may have been planted, but you will have to review the evidence and see whether or not, in fact it was a relevant statement.
THE COURT: Okay. Go Ahead.
The prosecutor then continued addressing the jury:
*542 Ladies and gentleman, initially that [return gunfire] information was not provided to the police. After the ATF report was made available and known during the investigation, defendant indicated there was some type of return gunfire. However, there is not one scintilla of evidence[,] testimonial or physical[,] suggesting anything like that occurred. No witness saw any such thing.
In deciding whether the prosecutor improperly commented on the defendant's right to remain silent, we determine "`whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.'"[92] In making this determination, we examine the prosecutor's comments in the context of the trial as a whole.[93] Again, given the context, we do not think that Flonnory's argument has merit. It is clear the repeated "15 months" comments were not improper comments on Flonnory's silence, but merely attempts to illustrate the possible inconsistencies in Flonnory's initial statement to the police where he, according to the prosecution, did not mention any return gunfire, and his later testimony at his first trial, testimony that occurred after an ATF report indicated that a revolver had been involved in the shootings. In this case, the passages of the closing arguments of which the defendant complains do not amount to misconduct. The jury would not "naturally and necessarily" take these statements to be a comment on Flonnory's silence. Accordingly, Flonnory's final contentions on appeal have no merit.
Conclusion
For the foregoing reasons, the judgments of the Superior Court are AFFIRMED.
NOTES
[1] Flonnory v. State, 778 A.2d 1044 (Del.2001).
[2] 3507 provides, "In a criminal prosecution, the voluntary out-of-court prior statement of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value."
[3] Purnell v. State, 832 A.2d 714, 718 (Del. 2003) (citing Woody v. State, 765 A.2d 1257 1261 (Del.2001)).
[4] Johnson v. State, 878 A.2d 422, 427 (Del. 2005).
[5] Purnell at 718.
[6] Johnson at 427 (citing Hall v. State, 788 A.2d 118, 123 (Del.2001)).
[7] In a letter to the trial judge, the prosecutor explained how these questions became those at issue in the Order:
Dear [Trial Judge]:
As indicated in a recent office conference, the State and defense counsel previously met, albeit unsuccessfully, in an attempt to come to an agreement as to the admissibility of certain portions of Akhee Flonnory's various statements to the police. Defense counsel has argued in previous filings, inter alia, that the Akhee Flonnory statements to the police are all inadmissible hearsay since they are not based on the witness' personal knowledge. The State indicated at the recent office conference that we would identify those portions of the Akhee Flonnory statements that are from his personal knowledge, or directly from Freddy Flonnory and therefore not inadmissible hearsay....
[8] A portion of A34 follows:
Akhee: And they say ah, one dude was running they chased him to his, I don't know if it was a dude, oh yeah it was a dude cause they said his girl fell right at the table, it was a dude they chased one dude towards, towards... start shooting him in the ditch. That's all that happened, (CU), then, and then after they told me I said, "Box [Flonnory's nickname] what the fuck are you doing?" He said, "Man I don't care, forget that man I'm a die anyway, I'm ready to die."
[9] See Demby v. State, 695 A.2d 1152, 1162 (Del.1997); D.R.E. 805: "Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules."
[10] Id.
[11] Okay, Korey used that gun for the shooting up there against the Westside boys, Duke and the girl?
A56: .9 millimeter and the .357 or A mag.
Q57: Okay .9 millimeter is what, an automatic you said?
A57: I don't know, I know a .357, (CU)(CU)(CU)(CU) with the barrel just turn around.
Q58: (CU)(CU)(CU) ...
A58: Yeah, that's what that is.
Q59: Who had that gun?
A59: My brother.
Q60: Okay, I just wanted to get that straight ah, you said Box [Flonnory] had the .357?
A60: Um hum.
Q61: Korey had the .9 and did Box ever tell you what he did with the .357?
A61: Nope he got locked up to [sic] quick....
Q62: You never talked to him about that?
A62: Nope, I ain't seen him (CU)(CU) since he been locked up or nothing. I ain't called to talk to him or nothing, all I know he used to hide the gun at my Grandma house in the trash can. (CU)(CU) ... his gun, (CU)(CU) what's his name bought um, Korey's gun for $175.00
[12] Did any of them tell you that they [sic] was the ones that actually hit the girl?
A64: Nope, nobody really say.
[Q64 and A64 are only provided for context]
Q65: How about the guy? Yo[u] said they got him in the ditch?
A65: Yeah, then ah, you know he told, we shot the mother fuckers up, they ain't say who hit who, cause none of them ain't got no aim, ain't nobody no professional shooter.
Q66: Alright, (CU) none of us are, but who was actually saying they shot the mother fuckers up?
A66: Both, my brother and Korey, they was the only two there.
Q67: Okay, so they're both saying they shot?
A67: Um hum, somebody, one...they shot somebody out of the three that fell.
[13] Were you out there then?
A134: Yeah I was out there.
Q135: So you were there whenever they were talking about going...
A135: Yep...
Q136: To do the shooting, what were they... who was there when they was talking about that? Right before they left for the shooting?
A136: I don't want to put everybody name involved in it, cause some (CU)(CU) to um...
[The trial judge did not admit A132-134 because they were irrelevant, confusing and potentially unfairly prejudicial; and apparently did not admit A135 or 136]
Q137: I mean...
A137: Well I'll just put my name, I can put my girlfriend name (CU)(CU)(CU)(CU)...
Q138: Who?
A138: Joy, I use her cause she was there.
Q139: Joy?
A139: Yeah.
Q140: What's Joy's last name?
A140: Watson.
Q141: Okay, (CU)(CU) where does she live?
A141: You got the address where I live at?
Q142: Oh ah, I'm sorry that's up at Colony North?
A142: Yeah.
Q143: Hilltop, wherever you call it.
A143: Yeah.
Q144: And she was present when they talked about they were gonna go shoot these westside dudes?
A144: Um hum, but I don't know if she wanna talk, well if I talk to her and tell her she gotta speak up...
Q145: Okay, (CU)(CU) do the right thing...
A145: She probably speak up, but ya'll come around her...
Q146: Yeah.
A146: She play the dummy role like anybody else.
...
[14] In its letter to the trial judge, the State pointed to A132-136 as being admissible. In his order the trial judge did not admit A132-134 and did admit 137-147. The Order does not mention A135 and A136 either way. Given the context, however, it appears that the trial judge did not admit these answers.
[15] ... Um, Akhee you're not ah, being treated for any like mental illness or anything like that, you're not nothing like that?
A207: No, Man!
Q208: I know, I gotta ask you that, ah the other thing is you're not high or under the influence or anything like that?
A208: (CU)(CU)(CU), no.
Q209: Okay, how long have you been here today?
A209: Man I think about 11:00, 10:00
Q210: Sine 7:01, you've been here eight hours?
A210: Yeah, (CU)(CU)(CU)
Q211: I'm sure you're hungry man, I'm (CU)(CU)(CU).
A211: You know I'm just ready to get up out of here, (CU)(CU) (CU)(CU)(CU)(CU)(CU)
Q212: We're gonna try and (CU)(CU)(CU). (CU)(CU) a long time man, and you just met his guy here, but just for the record, you know Detective Sullivan and this is Special Agent Tim Stranahan with the FBI. Um, I mean for the record has anyone forced you or made you give a statement or anything like that?
A212: No, ain't nobody put a gun to my head and tell me to do nothing.
Q213: Okay, I just want to make sure (CU) that everything that you're saying is on your own ah...
A213: By my own free will...
. . .
[16] Okay and um so it's just you and Freddie?
A1: Um...
Q2: And what did he say to you about what happened?
A2: I was askin' him man again you don't got to lie to me. I already know, Korey done already told me. I already know, where you goin', whatcha (CU), I just called him stupid then...
Q4[sic]: Tell me the truth.
A4: Yeah.
Q5: What did he say?
A5: He was like yeah well [mumbling] (CU). (CU) stop lyin', tell me what really happened. He said he got dropped off, they rode around the block a couple of times and didn't see nobody so they went back around the block again, seen `em, parked in some alleyway, Korey got out first, then he got out and Moose stayed in the car, that was it.
. . .
Q8: So Freddie said he had a gun?
A8: Yeah, so (CU).
Q9: What did Freddie tell you he did? Did he say he intended to shoot the girl?
A9: Nah he ain't say all that.
Q10: What did he say happened?
A10: They just went over `ere, I told `em Korey was like he had good aim, and all this and my brother, Box, he was just ah shootin' all kinda ways and stuff.
Q11: So when he came out of the alley, he just started shooting?
A11: Yeah.
Q12: Freddie did?
A12: Yeah. They said you know Korey said he was shootin' all wild and everythin'.
Q13: Then did Freddie tell you that he was shooting?
A13: Not necessarily but know what I mean, I know he wasn't he didn't really come out and say it, but I already know, know what I mean. I know everythin' about it.
Q14: Well you're telling me that Freddie told you that he took the gun...
A14: Yeah.
. . .
Q37: So Freddie didn't tell you how many shots he fired? But he said he was shooting in just all directions?
A37: Yeah.
Q38: Ah did he say that he... what he say when he got out there? I mean did he see the people?
A38: Korey, Korey said (CU) that's all I know that's (CU).
Q39: Korey said that?
A39: Yeah.
Q40: What did Freddie say about that, what they were doing?
A40: Nothin', he act like he had amnesia, he don't' really know too much, but he just knew he was shootin' all stupid.
. . .
Q50: Right, and he and his girlfriend, Joy Watson, Box, Korey, and Tirrell were talking. Box had asked Tirrell if he was scared. Tirrell said "Yes." Box asked Korey if he was scared if he was ready and he said, "Yes." And so Box, Korey... you said Box, Korey were under the influence of drugs at the time and in order to get over to the Westside, Box, Korey got a ride from Moose in a red Chevy Cavalier in exchange for a rock or two of cocaine. Is that right?
A50: Yeah.
Q51: Okay you saw that?
A51: Nah I ain't seen nothin'. I ain't seen that. I had to go by what I heard (CU).
Q52: Who'd you hear that from?
A52: I heard it from Rell, all'em. I heard it from all'em but I don't know what Joy was at then.
. . .
Q102: But Korey actually told you he was there and shot, (CU) did he say he shot the boy?
A102: Nah they ain't say who shot who or who did what. They were just shootin'.
Q103: Okay so they're both shooting?
A103: Yeah.
. . .
Q120: Is that what happened the day Korey got shot? The car showed up for some weed or something and they ah they chased him around with some bottles? That's what another witness told us.
A120: That's probably Rell's story cause Rell was there, I wasn't (CU) home, I gotta phone call and I came over `ere.
Q121: Okay, had you heard that before?
A121: Yeah, Yeah I heard that what you just said (CU).
Q122: From Rell or ah...
A122: Nah that was just you know talk on the street, from girls and all that.
[17] D.R.E. 801(d)(2)(E) defines as not hearsay "a statement by a co-conspirator of a party [made] during the course and in furtherance of the conspiracy; provided that the conspiracy has first been established by the preponderance of the evidence to the satisfaction of the court."
[18] The State cites a Pennsylvania Supreme Court case, Commonwealth v. Cull, 540 Pa. 161, 173, 656 A.2d 476 (Pa.1995), for the proposition that "Although generally once the conspiratorial objective is accomplished, the out-of-court declarations of a conspirator cannot be used as evidence against his co-conspirators there are instances in which statements made after the perpetration of the target crime are admissible because they are so closely connected to the commission of the substantive offense that they may reasonably be considered part of a continuing course of criminal conduct emanating from the substantive offense." (citations omitted). We think that in the case at bar the general rule applies and not the exception. It is clear from the facts that the statements in this case were not part of a continuing course of conduct emanating from the substantive offense. To read the exception as broadly as the State urges would let the exception swallow the rule.
[19] See Van Arsdall v. State, 524 A.2d 3, 11 (Del.1987).
[20] The defense notes that at portions of the August 12, 1997 statement Akhee contradicts himself. More specifically, the portions of the statement the trial judge did admit contradict portions the trial judge did not admit. Indeed, Akhee's August 12, 1997 contradicts parts of the September 22, 1998 and the September 24, 1998 Statements. At some points Akhee says that he did not talk with Freddy Flonnory, while at others he relates what Flonnory said or what Flonnory related to him. Akhee was an inarticulate witness who made separate statements that were internally inconsistent and inconsistent with each other. After the benefit of substantial arguments, the trial judge admitted certain statements. While we may have ruled differently had we been making the rulings in the first instance, we will not disturb the trial judge's ruling on appeal absent an abuse of discretion.
[21] Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
[22] Id. at 59, 124 S.Ct. 1354.
[23] Id. at 59 n. 9, 124 S.Ct. 1354. See also Johnson, 878 A.2d at 428-429 ("[W]hen a witness takes the stand at trial, and is subject to cross-examination, the traditional protections afforded under the Confrontation Clause are satisfied").
[24] Crawford at 52, 124 S.Ct. 1354. (Statements taken by police officers in the course of interrogations are also testimonial under even a narrow standard.")
[25] See United States v. Lore, 430 F.3d 190 (3d Cir.2005) ("If evidence was admitted in contravention of [the defendant's] confrontation rights, we must consider whether the error was harmless beyond a reasonable doubt."); United States v. Nielsen, 371 F.3d 574, 581 (9th Cir.2004) (citing Delaware v. Van Arsdall, 475 U.S. 673, 680-81, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)) ("Confrontation Clause violations are subject to harmless error analysis, because `the Constitution entitles a criminal defendant to a fair trial, not a perfect one.'"); United States v. Lewis, 144 Fed.Appx. 131, 133 (2d Cir.2005) ("In light of this evidence, we find the Crawford error harmless beyond a reasonable doubt.")
[26] Johnson, 878 A.2d at 427.
[27] 337 A.2d 28 (Del.1975). See also State v. Scott, 1989 WL 90613, 1989 Del.Super. LEXIS 291 (Del.Super.Ct.1989) ("In [Huggins]the Supreme Court was critical of testimony offered by police officers as to the substance of statements made by a codefendant of Huggins while the codefendant was in custody. The Supreme Court was concerned that the officer's paraphrase of the codefendant's statement might be colored by bias and that the police officers had the capacity to reduce such statements to writing or to take careful notes of precisely what was said in oral statements.")
[28] Id. at 29-30. (citations omitted) (emphasis added).
[29] Garris v. State, 550 A.2d 34 (Del.1988) (order).
[30] We emphasize that the State can easily avoid litigating the "interpretative narrative" issue by taking a written statement or an audio or video recording of a declarant's testimony. In the event that the State wishes to introduce the declarant's statement under 3507 at a later trial, the writing or recording will easily and accurately present the declarant's words without embellishment. This is not to say that a police officer's handwritten notes and recollection of a declarant's statement can never be introduced under 3507, only that a trial judge should use great care to ensure that a police officer's testimony ÔÇö or that of any witness ÔÇö about a declarant's out of court statement is an accurate representation of that statement and not an embellishment or an interpretative narrative.
[31] The State did not, however, offer into evidence the transcripts of the various audio and video tapes. The transcripts were only available when the tapes were played in Court as a tool to assist the jury in understanding the recordings. The trial judge cautioned the jury that it was the jury's own understanding of the tape as they heard it, and not the transcription, that controlled the contents of the 3507 statements.
[32] See Cousins v. State, 2004 WL 1097700, 2004 Del. LEXIS 215 (Del.2004) (order) ("Physical evidence admitted against a defendant at trial is appropriately submitted to the jury during its deliberations at the judge's discretion."); Johnson v. State, 878 A.2d 422, 424 (Del.2005) ("we find no abuse of discretion in the admission of the exhibit."); See State v. Jennings, 815 S.W.2d 434, 440 (Mo. Ct.App.1991)("The decision whether to allow exhibits to be taken to the jury room is a matter of discretion for the trial judge"); Brooks v. Holtz, 661 N.W.2d 526, 532 (Iowa 2003) ("Submission of exhibits to the jury is a matter resting in [the] trial court's discretion.").
[33] 685 A.2d 349 (Del.1996).
[34] Id. at 350.
[35] Id. at 350-351.
[36] Harrigan v. State, 1997 WL 45084, *2, 1997 Del. LEXIS 29, *6 (Del.1997) (order) (citing Ward v. State, 1991 WL 181476, 1991 Del. LEXIS 311 (Del.1991)).
[37] See Id. at **2-3, 1997 Del. LEXIS 29 at *7.
[38] Keys v. State, 337 A.2d 18, 23 (Del.1975) (In order to use an out-of-court statement under the former version of 3507, the statute required the production and direct examination of the witness by the prosecution.); Barnes v. State, 858 A.2d 942, 944 (Del.2004) ("Statements offered under 3507 must be offered before the conclusion of the direct examination of the declarant.")
[39] 3507 expressly provides that the witness whose out-of-court statements are being offered must be subject to cross-examination.
[40] See Harrigan at **2-3, 1997 Del. LEXIS 29 at *7.
[41] See Harrigan at *2, 1997 Del. LEXIS 29 at *6; Taylor at 350-351; See also Brooks v. Holtz, 661 N.W.2d 526 (Iowa 2003) (In a civil case, the trial judge did not abuse his discretion in denying the plaintiff's request that a video tape of the accident scene that the jury had previously seen be sent in with the jury during its deliberations because the trial judge clearly thought that doing so would overemphasize this evidence.); State v. Baumann, 236 N.W.2d 361, 366 (Iowa 1975) (Upheld trial court's decision to withhold audio tape recordings from the jury during its deliberations, even though the jury had requested the opportunity to listen to the tapes during its consideration of the case.).
[42] D.R.E. 403.
[43] See State v. Jennings, 815 S.W.2d 434, 440 (Mo.Ct.App.1991) ("[A]s a general rule exhibits which are testimonial in nature may not be given to the jury during its deliberations....") We are not changing the longstanding rule that "exhibits admitted into evidence should ordinarily be provided to the jury for use during deliberations" with respect to non-testimonial exhibits or, indeed, any exhibits other than written or recorded 3507 statements. See ABA Principles for Juries and Jury Trials, Principle 15B (2005) (emphasis added). The default rule applies very narrowly to written or recorded 3507 statements.
[44] See ABA CRIMINAL JUSTICE STANDARD 15-5.1(a). Materials to jury room. Available at http://www.abanet.or g/crimjust/standards/jurytrial_blk.html# 5.1. ("The court in its discretion may permit the jury, upon retiring for deliberation, to take to the jury room a copy of the charges against the defendant; the court should permit the jury to take exhibits and writings that have been received in evidence, except depositions, and copies of instructions previously given.") A comment to this Standard in an approved draft of 1968, explains that this Standard:
follows the broader and prevailing view, although it expressly prohibits sending depositions into the jury room. Almost all jurisdictions have adopted the view that the jury should not be permitted to take with it to the jury room depositions which have been read in evidence. [citations omitted]. The rationale behind this position is that to permit depositions to be taken to the jury room would result in the jury rereading them and examining them and thus either giving them greater emphasis or subjecting them to closer criticism than the testimony of the witnesses who appeared in court. We think that the rationale for adopting our default rule with respect to written and recorded 3507 statements is the same that underlies barring depositions from the jury room (although we do not go as far as the Standard suggests ÔÇö never allowing the jury to take written or recorded 3507 statements into the jury room during deliberations).
[45] See Ward v. State, 1991 WL 181476, **2-3, 1991 Del. LEXIS 311, *7 (Del.1991) (Order) (The trial judge did not abuse his discretion by allowing the court reporter to read back a portion of a witness' testimony pursuant to the jury's request.); Zimmerman v. State, 628 A.2d 62, 64 n. 1 (Del.1993) (At the jury's request during its deliberations a tape was replayed in the court room.)
[46] See e.g., Burke v. State, 1997 WL 139813, 1997 Del. LEXIS 95 (Del.1997) (order) ("[Defendant] was not unfairly surprised by the contents of [witness's] three videotaped statements because he had stipulated to their admission as a joint exhibit prior to the trial.")
[47] By "incriminating statements" we simply mean statements by the defendant not generally understood to be "confessions" (e.g., a defendant's recorded statements to an undercover police officer or informant made during the course of an investigation.) Moreover, to the extent this type of incriminating statement (the recording of a defendant's statements to an undercover police officer) is admissible by means other than 3507, it is not "testimonial" in the way 3507 statements are. Thus, the general rule we noted above that "exhibits admitted into evidence should ordinarily be provided to the jury for use during deliberations" would apply.
[48] D.R.E. 801(d)(2) provides that, a statement is not hearsay if:
The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity, or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy; provided that the conspiracy has first been established by the preponderance of the evidence to the satisfaction of the court.
[49] Jennings, 815 S.W.2d at 440.
[50] See Jennings, 815 S.W.2d at 440. In Jennings, the defendant argued that the trial judge erred by granting a jury's request to rehear a videotaped statement of a third party witness, in which the third party witness told police that the defendant admitted to participating in the crime for which he was on trial. In the video-taped statement the third party witness related to police statements the defendant made to him regarding details of the crimes. The third party witness also told the police that the defendant admitted to him, "I think I killed them...[and that defendant] assumed he shot the lady." The Court noted that those admissions "were admissions in the nature of a confession to the crimes charged" and that they "directly implicated appellant in the crimes." We do not read "confession or incriminating statements" as broadly as the Jennings Court. "Confession or incriminating statements," in this context, should be limited to written or recorded statements the defendant actually makes directly. See Jonathan M. Purver, Annotation, Permitting Documents or Tape Recordings Containing Confessions of Guilt or Incriminating Admissions to be Taken into Jury Room in Criminal Case, 37 A.L.R.3d 238 (1971)(updated Sept. 2005). To the extent that our 3507 "default rule" applies to a defendant's allegedly incriminating admission that is filtered through a third party witness, (as in Jennings and in the case at bar where Ahkee's various 3507 statements quoted several of Flonnory's incriminating admissions) the State can move the trial judge to allow the third party witness's 3507 statement containing the defendant's incriminating admission to go into the jury room during the jury deliberations, just as it could with any 3507 statement of a witness. At that point, the trial judge has broad discretion to grant or deny the State's application to allow the statement to go to the jury during deliberations.
[51] See Jonathan M. Purver, Annotation, Permitting Documents or Tape Recordings Containing Confessions of Guilt or Incriminating Admissions to be Taken into Jury Room in Criminal Case, 37 A.L.R.3d 238 (1971)(updated Sept. 2005).
[52] D.R.E. 403.
[53] 523 A.2d 539 (Del.1987).
[54] 558 A.2d 278 (Del.1989).
[55] 816 A.2d 757 (Del.2003).
[56] 2003 WL 22810504, 2003 Del.Super. LEXIS 391 (Del.Super.Ct.2003) aff'd by 2004 WL 1097700, 2004 Del. LEXIS 215 (Del.2004) (order).
[57] 2003 WL 22810504, **5-6, 2003 Del. Super LEXIS 391, *14. (emphasis added).
[58] Cousins v. State, 2004 WL 1097700, *1, 2004 Del. LEXIS 215, *4 (Del.2004) (Order). In this case the videotape was admitted pursuant to 3507. Although in our affirming Order, we intimated that the videotape evidence was "physical evidence," it is physical evidence only to the extent it is an item in the jury's exhibit package. But when it is replayed, at that point it becomes "testimonial." Indeed, 3507 evidence is more appropriately termed "testimonial" evidence because it represents statements made by a declarant.
[59] See also, Saunders v. State, 401 A.2d 629 (Del.1979). In Saunders, the defendant argued that the trial judge committed error by admitting into evidence five statements of his accomplices under 3507 on the grounds that they were, inter alia, cumulative and prejudicial. We held that in those circumstances, the trial court did not err in admitting the statements and noted that "the statements were properly submitted as evidence to the jury during deliberations." Id. at 631. Saunders does not explain why the statements were properly submitted as evidence to the jury during their deliberations, and in any event is not controlling in this case, since the exercise of judicial discretion is highly fact sensitive. This exercise is no more than a typical DRE 403 analysis.
[60] See Atkins, 523 A.2d at 543. In Atkins, the State introduced transcripts of a conversation when actual tapes of the conversations, of which transcripts were introduced, were available at trial. The transcriptions were offered as proof of the contents of the tape recording, i.e., the conversation. Citing D.R.E. 1002, we held that under those circumstances, "the State was obligated to introduce the original tape recording to prove its contents (the conversation)."
[61] It is interesting to note that, despite the trial objection and Flonnory's argument on appeal, during closing arguments, his defense counsel requested that the jury listen to the tape of Dwayne Warren's testimony during their deliberations: "Flash forward approximately two weeks later, just before Mr. Flonnory arrives with Mr. Korey Twyman, Dwayne Warren ÔÇö and this will be in the audio tape, I ask you to review it ÔÇö says just as they arrived he observed Duke slap boxing. Please listen to that tape." At another portion of the defense's closing argument, defense counsel urged the jury to view one of the other videotapes: "if you are to remember any other numbers, these are the numbers I want you to remember. I want you to remember 15:27:30, 3:27 in the afternoon, 30 seconds, through 3:28:15. That's Mr. Freddy Flonnory's ÔÇö that's a portion of Mr. Flonnory's video-taped statement...Play the tape and you listen to it." At the end of his closing argument, defense counsel again asks the jury if it "could take some extra time and review Mr. Flonnory's tape in full, but begin with the part where he talks about seeing gun sparks flying, because I think that is very important...." Despite these comments, Flonnory still argues in his brief that it was error for the trial judge to allow this and other exhibits into the jury room. Although the defense made a formal objection to allowing the "memorializations" of 3507 statements, the fact that defense counsel made reference to at least certain of the tapes, particularly that of Freddy Flonnory's statement, undercuts the defense's argument on appeal. Clearly the defense wanted the jury to give "emphasis and credence to that portion of the testimony."
[62] The relevant portion of this version of the transcript was:
Detective: Did you see any XXX? Any guns?
Robinson: Yeah. Mumbling. (They might've left their fucking jackets up there, picked them up from Frank's car.)
[63] The relevant portion of the second version of the transcript was:
Detective: Did you see any heat on them? Any guns?
Robinson: Yeah. Mumbling. 2[Two] ÔÇö 9 millimeters, that's what they wrapped their fucking jackets in, that's what they threw in Frank's car.
[64] 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.
[65] United States v. Morris, 80 F.3d 1151, 1170 (7th Cir.1996) (citations omitted).
[66] In argument before the trial judge, the defense characterized these portions of Warren's testimony at Flonnory's first trial in the following way: "the former testimony includes essentially a suggestion by Mr. Warren that after the July 1st incident, he was no longer involved with guns, and was of a peaceful nature, and had abandoned any violence."
[67] In his brief, Flonnory states that Warren was arrested and convicted for "shooting a person." In the transcript of the trial, the defense counsel made this same statement to the trial judge. The Deputy Attorney General quickly corrected defense counsel and informed the Court that Warren did not "shoot anybody." Defense counsel then apologized and noted that Warren "hit someone and had a gun" and conceded that Warren did not "shoot a person." Although the State disputed the statement that Warren "shot a person" before the trial judge, it did not do so in its brief on this appeal. Nonetheless, under either characterization of the facts, Flonnory's argument on appeal fails as a legal matter.
[68] Johnson 878 A.2d at 427.
[69] 541 U.S. at 58, 124 S.Ct. 1354.
[70] 878 A.2d at 428-429.
[71] People v. Wilson, 36 Cal.4th 309, 343, 30 Cal.Rptr.3d 513, 114 P.3d 758 (2005) (citing Crawford v. Washington, 541 U.S. 36, 55-56, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)) ("In Crawford v. Washington, the high court stated that a prior opportunity to cross-examine a witness was `dispositive' of the admissibility of his testimonial statements, `and not merely one of several ways to establish reliability.' Because defendant had an opportunity to cross-examine [the witness] at the first trial, this satisfied the confrontation clause.")
[72] See Id. at 343, 30 Cal.Rptr.3d 513, 114 P.3d 758 ("Both the United States Supreme Court and this court have concluded that when a defendant has had an opportunity to cross-examine a witness at the time of his or her prior testimony, that testimony is deemed sufficiently reliable to satisfy the confrontation requirement, regardless whether subsequent circumstances bring into question the accuracy or the completeness of the earlier testimony.") (quotations omitted) (citing People v. Samayoa, 15 Cal.4th 795, 64 Cal. Rptr.2d 400, 938 P.2d 2 (1997) (citing California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970))).
[73] Grace v. State, 658 A.2d 1011, 1015 (Del. 1995).
[74] See e.g., Banther v. State, 823 A.2d 467, 489 (Del.2003) ("The trial judge correctly noted that Banther had no right to have Schmitz assert his Fifth Amendment privilege before the jury."); See also United States v. Martin, 526 F.2d 485, 487 (10th Cir.1975) ("[I]t was well within the discretion of the trial court to refuse to allow the informant to be called to the witness stand and be compelled to thereafter invoke his Fifth Amendment right in the presence of the jury"); United States v. Monnier, 412 F.3d 859, 862-863 (8th Cir.2005) (citation omitted) ("We have held that `a defendant does not have the right to call a witness to the stand simply to force invocation of the right against self-incrimination in the presence of the jury.'"); United States v. Hand, 1995 WL 743841, 1995 U.S.App. LEXIS 35321 (10th Cir.1995)("[A] defendant has no right to force a witness to invoke the privilege in front of a jury."); But See Mosley v. State, 652 So.2d 767, 768 (Ala.Crim.App. 1994) ("A witness has the right to invoke the Fifth Amendment and refuse to testify; however, that witness must take the stand in the presence of the jury and be asked questions that would elicit incriminating evidence if answered before the witness can invoke his Fifth Amendment privilege. Hence, the trial court erred in failing to require the witness to take the stand.")
[75] We do not hold that the trial judge must explicitly inform the jury that a witness invoked his Fifth Amendment privilege outside of the presence of the jury and instruct them to draw no inference therefrom. Indeed, this may do more harm than good. Bowles v. United States, 439 F.2d 536, 541-542 (D.C.Cir.1970) ("The jury may think it high courtroom drama of probative significance when a witness `takes the Fifth.' In reality the probative value of the event is almost entirely undercut by the absence of any requirement that the witness justify his fear of incrimination and by the fact that it is a form of evidence not subject to cross-examination.")
[76] Bowles, 439 F.2d at 541 (D.C.Cir.1970). See also C.T. Drechsler, Annotation, Inferences Arising from Refusal of Witness Other than Accused to Answer Question on the Ground that Answer Would Tend to Incriminate Him, 24 A.L.R.2d 895 ("[T]he general rule is that when a witness, other than the accused, declines to answer a question on the ground that his answer would tend to incriminate him, that refusal alone cannot be made the basis of any inference by the jury, either favorable to the prosecution or favorable to the defendant.... The reason for the above rule is that, in declining to answer a question on the ground that the answer would tend to incriminate him, the witness is exercising a constitutional right personal to himself, the exercise of which should neither help nor harm a third person.")
[77] Id. at 542.
[78] Id.
[79] See State v. Haddad, 767 So.2d 682 (La. 2000) (collecting cases).
[80] See e.g., United States v. Martin, 526 F.2d 485, 487 (10th Cir.1975) (citing a more detailed neutralizing instruction.)
[81] Priest v. State, 879 A.2d 575, 577 (Del. 2005).
[82] Hainey v. State, 878 A.2d 430, 432 (Del. 2005).
[83] 11 Del. C. 636(a)(1).
[84] 11 Del. C. 531(1).
[85] 11 Del. C. 231(a)(1), See Burrell v. State, 766 A.2d 19, 25 (Del.2000).
[86] Price v. State, 858 A.2d 930, 939 (Del.2004) (citing Hunter v. State, 815 A.2d 730 (Del. 2002)).
[87] Hughes v. State, 437 A.2d 559, 569 (Del. 1981).
[88] Hunter v. State, 815 A.2d 730, 738 (Del. 2002)
[89] Clayton v. State, 765 A.2d 940, 942 (Del. 2001).
[90] See Supra.
[91] Hunter, 815 A.2d at 735.
[92] Shelton v. State, 744 A.2d 465, 502 (Del. 2000) (citations omitted).
[93] Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333207/ | 299 S.E.2d 466 (1983)
STATE of North Carolina
v.
Jerry LOWE, alias Terry Wayne Lowe.
No. 8216SC404.
Court of Appeals of North Carolina.
February 1, 1983.
*468 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. David Roy Blackwell, Raleigh, for the State.
Rogers & Bodenheimer by Hubert N. Rogers, III, Lumberton, for defendant-appellant.
WEBB, Judge.
In his first assignment of error the defendant contends the court expressed an opinion on the evidence by questions put to Mrs. Barbour, the witness. During the trial the following colloquy occurred:
"COURT: Do you have an opinion satisfactory to yourself as to the value of the T.V.?
WITNESS: I'm satisfied.
COURT: Yes, Ma'am. What is your opinion of its value?
WITNESS: It's value?
COURT: Yes, Ma'am.
WITNESS: Yes, sir. $800.
COURT: Does that include the rabbit ears?
WITNESS: Yes, sir.
* * * * * *
COURT: Did you give any one [sic] permission to enter your house on that day?
WITNESS: No, sir.
* * * * * *
COURT: You give anyone permission to break your door or enter your house?
COURT: Give anyone permission to take your T.V. set or rabbit ears from your room?
WITNESS: No, sir."
Mrs. Barbour's testimony in response to the judge's questions was the only evidence as to the value of the television set.
The defendant argues that by this colloquy the judge commented on the evidence in violation of G.S. 15A-1222. A judge may not by his questions to a witness intimate an opinion as to whether any fact essential to the State's case has been proved. See State v. Hudson, 295 N.C. 427, 245 S.E.2d 686 (1978). A judge may ask questions, however, that elicit testimony which proves an element of the State's case so long as he does not comment on the strength of the evidence or the credibility of the witness. State v. Stanfield, 19 N.C.App. 622, 199 S.E.2d 741 (1973). We believe the questions by Judge Britt were neutral, which, depending upon the answer, would benefit either the State or the defendant.
Although he did not make it a part of the assignment of error, the defendant argues under this assignment of error that at other times the court, by its questions, commented on the evidence. As we read these questions the court did not intimate any opinion as to whether a fact had been proved. They served to clarify the testimony of the witnesses. See State v. Fuller, 48 N.C.App. 418, 268 S.E.2d 879, cert. denied, 301 N.C. 403, 273 S.E.2d 448 (1980). The defendant's first assignment of error is overruled.
*469 In his second assignment of error the defendant argues that his motion to dismiss the charge of larceny should have been allowed. He contends there was not sufficient evidence to submit to the jury the lack of consent on the part of Mrs. Barbour to his taking the set or that he intended to deprive Mrs. Barbour permanently of the television set. He argues that the testimony that Mrs. Barbour did not consent to his taking was improperly admitted and without this testimony there was not sufficient evidence that she did not consent. Assuming this was the only evidence of Mrs. Barbour's lack of consent, we have held it was not error to admit it. If it had been erroneously admitted, the motion to dismiss should not have been allowed. On a motion to dismiss all evidence favorable to the State must be considered whether it is or is not properly admitted. See State v. Shaw, 293 N.C. 616, 239 S.E.2d 439 (1977).
As to the defendant's argument that there was not sufficient evidence that he intended to deprive Mrs. Barbour of the television set permanently, the evidence most favorable to the State is that the defendant was in a group of two or more men who went into Mrs. Barbour's house and removed the television set to the woods behind her house. The defendant fled from the scene when Mrs. Barbour's friends came to her house. We believe the jury could conclude from this evidence the defendant was acting in concert with some persons who took Mrs. Barbour's television set and left it in the woods behind her house. They could conclude from this that the men intended to deprive Mrs. Barbour of the set permanently. In re Ashby, 37 N.C.App. 436, 246 S.E.2d 31 (1978).
The defendant's second assignment of error is overruled.
In his third assignment of error the defendant, relying on State v. Perry, 305 N.C. 225, 287 S.E.2d 810 (1982); State v. Cornell, 51 N.C.App. 108, 275 S.E.2d 857 (1981); and State v. Keeter, 35 N.C.App. 574, 241 S.E.2d 708 (1978), argues that it was error for the court to accept the verdict of guilty of felonious larceny when the court did not instruct the jury to fix the value of the property and the jury did not find the value of the stolen property exceeded $400.00. The cases cited by the defendant hold that if a defendant has been found not guilty of felonious breaking or entering, the court should not accept a verdict of guilty of felonious larceny unless the court has charged the jury that they must find the stolen property was worth more than $400.00 in order to find the defendant guilty of felonious larceny. In this case, the court's charge to the jury has not been made a part of the record. We presume the charge was correct. Elsevier v. Machine Shop, 9 N.C.App. 539, 176 S.E.2d 875 (1970).
We believe that the defendant has misconstrued the requirements of Perry, Cornell, and Keeter so far as requiring the jury to find the value of the property is concerned. G.S. 14-72(a) provides in part:
"... In all cases of doubt, the jury shall, in the verdict, fix the value of the property stolen."
In this case, the only evidence of value was Mrs. Barbour's testimony that in her opinion the television set was worth $800.00. The indictment charged that the value of the property was more than $400.00. It was not necessary for the jury to make a special finding in its verdict that the property was worth more than $400.00. State v. Jeffries, 41 N.C.App. 95, 254 S.E.2d 550 (1979).
The defendant's third assignment of error is overruled.
No error.
HEDRICK and BECTON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333218/ | 165 Ga. App. 176 (1983)
299 S.E.2d 895
KEY
v.
J. C. PENNEY COMPANY, INC.
64971.
Court of Appeals of Georgia.
Decided January 24, 1983.
*178 John E. James, Kathryn Weigand, for appellant.
Robert A. B. Reichert, for appellee.
CARLEY, Judge.
Appellant-plaintiff appeals from the grant of summary judgment to appellee-defendant in this slip and fall case.
Appellant's complaint alleged generally that appellee had negligently maintained the entry way to its store "in such a fashion as to allow a slick and dangerous condition to be present." In answers to interrogatories, appellant subsequently asserted specifically that the floor was "highly waxed and/or polished." Appellant, also by way of his answers to interrogatories, contended that there was no mat on the floor and, because it had been raining, his shoes were wet when he fell.
In support of its motion for summary judgment, appellee introduced affidavits establishing that the material used in waxing and polishing the floor of the entry way was of high quality, meeting or exceeding recognized "slip-[resistant] or slip-retardant" standards. Appellee also introduced an affidavit establishing that the floor had been treated with the material according to instructions and in a non-negligent manner. This evidence for appellee was not countered by appellant. In addition, appellee's evidence also controverted appellant's assertion that there was not a mat at the entry way and, if believed, would show that the mat was in fact in place "prior to the opening of the store."
We turn first to the question of whether genuine issues of material fact remain with regard to appellee's negligence in maintaining a "highly waxed and/or polished floor." Our Supreme Court has held that "`proof of nothing more than the occurrence of the fall is insufficient to establish the proprietor's negligence.' [Cit.] ... [T]he plaintiff must, at a minimum, show that the defendant was negligent either in the materials he used in treating the floor or in the application of them." Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980). In the instant case, appellee introduced evidence demonstrating that it was not negligent in the materials used in treating the floor or in the application thereof. Thus, appellee "presented evidence of no defective condition in the floor. [Appellant, on the other hand,] did not introduce any evidence of the quality of material used or the methods which [appellee] used in waxing and maintaining its floor." Alterman Foods, 246 Ga. at 624, supra.
On this evidence, all that appears is that appellant fell while traversing appellee's floor, a floor which had been waxed or polished but in a non-negligent manner. "To presume that because a customer falls in a store that the proprietor has somehow been negligent would *177 make the proprietor an insurer of his customer's safety which he is not in this state. [Cit.]" Alterman Foods, 246 Ga. at 624, supra. Appellee's "evidence was sufficient to pierce the pleadings of [appellant] and to shift the burden to [him] to produce issuable evidence or suffer judgment. [Cit.] `The evidence [here] is not ambiguous, doubtful, or susceptible of more than one interpretation. There is no evidence that [appellee] or its agents were guilty of any negligence. Indeed the record affirmatively shows the absence of any negligence by [appellee] or its agents. The evidence simply shows that [appellant] fell while shopping in [appellee's] store. This is insufficient.' [Cit.] Falling and injuring one's self proves nothing. Such happenings are commonplace wherever humans go. It cannot be inferred from a silent record that [appellee] negligently maintained its floor. [Appellant's] statements, taken in the light most favorable to [him], are merely conclusions and are probative of nothing." Alterman Foods, 246 Ga. at 625, supra. The trial court did not err in granting appellee summary judgment on the issue of its negligent maintenance of the entryway floor. Compare S. S. Kresge Co. v. Blount, 162 Ga. App. 404 (291 SE2d 728) (1982).
We turn next to the question of whether genuine issues of material fact remain with regard to appellee's negligence in failing to provide mats for customers entering with rain-wet shoes. "`Everybody knows that, when people are entering any building when it is raining, they will carry some moisture on their feet, which will render the floor near the door on the inside damp to some extent, and everyone knows that a damp floor is likely to be a little more slippery than a dry floor.' [Cit.]" Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 173 (138 SE2d 77) (1964). "`[T]he mere failure to remove water collecting near the entrance way of a large store because of the constant passing in and out of pedestrians during a period of rain, and the failure to place mats in the aisle at such a place would not be evidence of a lack of reasonable care for the safety of the store's invitees ...' ...`It is a matter of common knowledge that some water would normally be present at a place where shoppers continually pass in and out during rainy weather. While [appellee] is alleged to have been negligent in not providing mats over this area, [the evidence establishes that appellant] could plainly see that no mats were present. [Cit.] ... [He] was aware of the weather conditions. Under these circumstances it appears that [he himself] was not in the exercise of due care.'" Gibson, 110 Ga. App. at 175, supra. Accordingly, it was not error to grant appellee summary judgment on the issue of its negligence in failing to provide mats at the entryway to its store.
Judgment affirmed. Shulman, C. J., and Quillian, P. J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333230/ | 165 Ga. App. 22 (1983)
299 S.E.2d 69
TYSON
v.
THE STATE.
64868.
Court of Appeals of Georgia.
Decided January 4, 1983.
B. Keith Rollins, for appellant.
William A. Foster III, District Attorney, Frank C. Winn, Assistant District Attorney, for appellee.
DEEN, Presiding Judge.
1. This is the second trial of the defendant on a burglary indictment. See Tyson v. State, 157 Ga. App. 569 (278 SE2d 150) (1981). Prior to the present trial written demand was made of the state for discovery of any relevant and material statements made by the defendant while in police custody, as required by Code § 27-1302. At a subsequent hearing the district attorney admitted not furnishing a statement for the reason that he planned to use nothing other than testimony offered on the former trial. A transcript of such testimony was admittedly in the possession of the defense attorney who conducted the second trial, although different lawyers handled the first trial and subsequent appeals.
"This court held in Garner [v. State, 159 Ga. App. 244 (1)] that the district attorney's failure to comply with the provisions of the criminal discovery statute would require the exclusion and suppression of testimony and evidence arising therefrom at any retrial of the case. However, any harm which would result to a criminal defendant from the state's failure to provide the requested information prior to the original trial would be eliminated if the district attorney were to timely comply with the statute prior to any retrial of the case. Therefore, the judgment of the trial court is reversed and remanded with direction that testimony and evidence arising [therefrom] be excluded and suppressed from any retrial of *23 this case unless and until the district attorney has fully complied with the provisions of Code Ann. § 27-1303. Our holding in Garner, supra, is modified accordingly." Tanner v. State, 160 Ga. App. 266, 268 (287 SE2d 268) (1981).
Here, the discovery request was made at a reasonable time between the first and second trials, and the district attorney contends that because there was no substantial difference in the testimony of the witnesses on the second trial, the defendant's possession of the earlier transcript released him from compliance with the statute. Defendant also admits that he had a copy of the transcript of the first trial and he does not contend that the state offered any additional evidence in the second trial. Absent a showing that the substance of a defendant's statement made available to him (here the transcript of the first trial) fell short of adequately forewarning him of the testimony offered at trial pertaining to that statement, there is no cause for reversal. There appears to be in this case a substantial compliance with the statute. "This object is satisfied in this case." McCarty v. State, 161 Ga. App. 444, 446 (288 SE2d 249) (1982) appears to be binding authority although affirmed on a different point of law in McCarty v. State, 249 Ga. 618 (292 SE2d 700) (1982).
2. The defendant further urges that any statements of an inculpatory nature made while in custody were made with an expectation of benefit to himself, and were consequently inadmissible under Code § 38-411. It is clear from the testimony of a detective deputy sheriff who testified for the state and the sheriff who testified for the defendant that Tyson had worked closely with law enforcement officers as a confidential informant for a period of up to twenty years; that he refused to make any statements to others but as to these witnesses, and particularly the sheriff, they had always "done business" on the basis that he would tell them the truth; that the sheriff ordered the defendant to tell him the truth and the sheriff felt that the defendant did so, "in his mind expecting some benefits since it was just like all the other times"; that while no verbal promises were ever made it had been understood between the parties over the period of their association that he would be "taken care of" and the sheriff further admitted that in his own mind he felt he "owed him something." It is also clear, however, that no overt promises had been exchanged and that the understanding was subjective in nature. Under Code § 38-412 confessions made under a promise of secrecy or of collateral benefit are not for that reason excludable. Confessions are admissible though obtained by artifice, trick, or deception. Moore v. State, 230 Ga. 839, 840 (199 SE2d 243) (1973); Hudson v. State, 153 Ga. 695 (3) (113 S.E. 519) (1922); Cornwall v. State, 91 Ga. 277, 282 (18 S.E. 154) (1892); Blackwell v. State, 113 Ga. App. 536 (148 SE2d 912) *24 (1966). The question is raised through assignments of error in denying exclusion of the testimony after a Jackson-Denno hearing and in denying a motion for mistrial and a motion to suppress. These grounds are without merit.
Judgment affirmed. Sognier and Pope, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333254/ | 250 Ga. 505 (1983)
299 S.E.2d 721
CLAYTON COUNTY et al.
v.
OTIS PRUITT HOMES, INC.
39216.
Supreme Court of Georgia.
Decided February 3, 1983.
Glaze & McNally, George E. Glaze, Charles B. Graham, Jr., for appellants.
Levine, D'Alessio, Mullins & Stone, Burgess W. Stone, for appellee.
Michael J. Bowers, Attorney General, Barry P. Allen, Assistant Attorney General, amicus curiae.
CLARKE, Justice.
This appeal involves the interpretation of the subsections of OCGA § 8-2-112 (Code Ann. § 92A-2403) which regulate the inspection and approval of factory-built housing. The specific question presented is whether approval of a factory-built housing unit by the state precludes the right of a local government to condition its approval of a unit upon its own inspection pursuant to paragraph (3) of subsection (a) of OCGA § 8-2-112 (Code Ann. § 92A-2403). We hold that it does.
1. Appellee applied for a building permit with Clayton County to erect a factory-built home on a lot in Clayton County. The home in question was approved by the state as required by OCGA § 8-2-112 (Code Ann. § 92A-2403), subsection (a) paragraph (1). The permit was refused on the basis that the appellee had not complied with the code of Clayton County which requires factory-built housing to be inspected by the county during its manufacture.
OCGA § 8-2-112 (a) (3) (Code Ann. § 92A-2403) states that the code sections governing state inspection and regulation do not apply when a local government has its own procedures for inspection of factory-built homes and such procedure is in line with industry standards. Clayton County contends that since it has adopted its own regulations which conform to OCGA § 8-2-112 (a) (3) (Code Ann. § 92A-2403) it need not accept state approval of factory-built housing but may require local approval also.
This argument overlooks subsection (b) of the same section which provides: "All factory-built housing bearing an insignia of approval issued by the commissioner pursuant to this part shall be held to comply with the requirements of all ordinances or regulations which have been enacted by any local government and which are applicable to the manufacture or installation of such housing. The determination by the commissioner of the scope of such approval is final." OCGA § 8-2-112 (b) (1) (Code Ann. § 92A-2403). We therefore construe the statute to mean that once state approval is obtained the right of a local government to inspect and approve that particular housing is preempted. Paragraph (3) of subsection (a) would apply only if a manufacturer did not seek state inspection and approval but applied to a local government for inspection of factory-built housing to be placed in that body's jurisdiction.
The trial court correctly held that since the factory-built house bore the state's approval the local government had no authority to conduct its own inspection.
*506 2. The county contends that this interpretation of the statute violates Article IX, Sec. IV, Paragraph II of the state constitution (Code Ann. § 2-6102). This paragraph gives local governments the power to enact building, housing, plumbing and electrical codes. It is further provided: "nothing contained within this Paragraph shall operate to prohibit the General Assembly from enacting general laws relative to the above subject matters or to prohibit the General Assembly by general law from regulating, restricting or limiting the exercise of the above powers, but the General Assembly shall not have the authority to withdraw any such powers."
The General Assembly may by general law preempt a local law and may by general law restrict the manner in which a county regulates. City of Atlanta v. Myers, 240 Ga. 261 (240 SE2d 60) (1977). It is not unconstitutional nor a withdrawal of power by the General Assembly in enacting state-wide regulations for factory-built homes which are binding upon local governments.
3. We find no reversible error in any of the remaining enumerations.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333302/ | 505 S.E.2d 537 (1998)
233 Ga. App. 797
CARNES
v.
WOODALL.
No. A98A0817.
Court of Appeals of Georgia.
August 10, 1998.
Webb & Lindsey, Eric K. Maxwell, for appellant.
Cooper & Avery, Gary M. Cooper, Ernest Bennett, Jr., Duluth, for appellee.
*538 BEASLEY, Judge.
Early one August morning Kenneth Carnes, a professional wheelchair racer, approached an intersection while propelling his wheelchair down a street during training. Betty Jean Woodall was traveling on the intersecting street and stopped her vehicle at the stop sign. When she pulled out, she collided with him because she did not see him.
Carnes sued Woodall for personal injuries and property damage but a jury rejected his claim. Carnes claims error in the admission of opinion testimony and testimony that Woodall did not receive a traffic citation.
1. The investigating officer appeared on the scene within 15 minutes of the accident. At trial he testified to Carnes' dark training outfit, his dark low-profile wheelchair, the road, and the pre-dawn lighting conditions with cloud cover. Woodall asked the officer if, based on his observations, he had an opinion whether Carnes would have been visible to a driver in Woodall's position. Over objection the officer testified that he did and that "[i]t was almost virtually impossible for Mrs. Woodall to have seen Mr. Carnes."
Last year, the Supreme Court of Georgia synthesized the principles applicable to opinion testimony. "Properly qualified expert witnesses may render an opinion on any matter within their realm of expertise, so long as it is based upon conclusions drawn by the expert that the jury could not ordinarily determine for themselves. Expert opinions may be based upon facts proved by other witnesses. Lay witnesses, however, may state their opinion only when it is based upon their own observations, and a lay opinion is admissible only when it is necessary in order for the witness to convey those same observations to the jury. The opinion of a lay witness is not admissible when all of the facts and circumstances upon which it is based are capable of being clearly defined, so that the jury may readily reach its own opinion therefrom. Thus, the opinions of lay and expert witnesses are admissible under different circumstances, and for different purposes....
"[I]n reviewing the admissibility of opinion testimony, an appellate court must assess the testimony in accordance with the appropriate standard. In reviewing the admissibility of expert opinion testimony, an appellate court must not use the standard assigned to lay opinion, and vice-versa."[1]
Woodall did not tender the officer as an expert and phrased the questioning so that it was based only on the officer's personal observations at the scene that morning. The officer was thus testifying as a lay witness.[2]
The Supreme Court reiterated the long-standing principle that "lay witnesses may relate their opinions as to the existence of a fact, so long as the opinion is based upon the witnesses' own observations, and so long as the witness cannot adequately relate those observations to the jury without also relating a personal opinion formed through such observations."[3] This includes observations which "cannot be adequately described and presented to the jury with the same force and clearness as they appeared to the witness," such as a person's intoxicated state, an employee's competence, or handwriting identity.[4]
Based on these principles, Xiong v. Lankford[5] held that lay witnesses of a car-pedestrian accident could give opinion, based on their personal observations of complex lighting and road and other physical conditions, whether they would have been able to see *539 the victim if they had been driving the car. Visibility was an issue.
McMichen v. Moattar[6] held that a lay witness could testify whether the defendant could have avoided the collision. McMichen framed the test as whether the opinion is "readily ascertainable from [the witness'] description," or whether the opinion is "an impression drawn from a totality of the circumstances."[7] This determination is for the trial court and will not be disturbed absent an abuse of discretion.[8]
The investigating officer's description of the pre-dawn lighting conditions and cloud cover did not make readily ascertainable whether Carnes in his dark clothing and in his dark low-profile wheelchair was visible to Woodall. Pre-dawn light and cloudiness are complex variables with degrees as to each. They are difficult to describe adequately to give the jury a clear mental picture of visibility. The jury is not able to stand in the same place at the same time to discern visibility themselves. But the disinterested observer on the scene could convey the fact by opinion from a totality of the then-existing circumstances. The court did not abuse its discretion in allowing the officer's opinion even though there were photographs and a videotape of the intersection under similar light conditions.
This conclusion harmonizes with cases holding the investigating officer can testify to his observations and conclusions so long as he does not testify as to who he believed was at fault or caused the accident.[9] That is the ultimate question for the jury to decide.
2. Carnes claims that Woodall should not have been permitted to testify she received no traffic citation arising from the collision. Normally such testimony is inadmissible.[10] Carnes immediately objected, and the court twice gave curative instructions to the jury to disregard the testimony.
"The issue is not properly before us because [Carnes] failed to renew his objection or move for a mistrial after the trial court's curative instruction was given."[11] Carnes concedes on appeal he purposely did not ask for a mistrial because of the delay that would result. His tactic precludes consideration of a new trial at this far later stage.
Judgment affirmed.
POPE, P.J., and RUFFIN, J., concur.
NOTES
[1] (Footnotes omitted.) Johnson v. Knebel, 267 Ga. 853, 855-856(1), 485 S.E.2d 451 (1997); see OCGA §§ 24-9-65, 24-9-67.
[2] See American Golf Corp. v. Manley, 222 Ga.App. 7, 9(3), 473 S.E.2d 161 (1996) (because witness was not offered as expert, his statement of opinion was reviewed under lay witness principles). Cf. Drummond v. Gladson, 219 Ga.App. 521, 522(1), 465 S.E.2d 687 (1995) (implies that an investigating officer can testify as to his observations and conclusions only as an expert witness) (physical precedent only).
[3] (Footnote omitted.) Johnson, 267 Ga. at 856(2), 485 S.E.2d 451.
[4] (Citation, punctuation and emphasis omitted.) See id. at fn. 10.
[5] 226 Ga.App. 126, 127-129(2), 485 S.E.2d 534 (1997).
[6] 221 Ga.App. 230, 232(2), 470 S.E.2d 800 (1996).
[7] Id.
[8] Xiong, supra, 226 Ga.App. at 129(2), 485 S.E.2d 534.
[9] See Strickland v. Stubbs, 218 Ga.App. 279, 281(4), 459 S.E.2d 473 (1995) ("a party may ask the investigating officer what he observed at the scene of the accident and what he talked to witnesses about, but he may not inquire as to the officer's ultimate opinion concerning fault, whether a citation was issued or there has been final disposition of the citation") (citation omitted); Emory v. Dobson, 206 Ga.App. 482, 483-484, 426 S.E.2d 50 (1992) ("[t]he record reveals the officer was allowed to testify fully about what he observed at the accident scene and to opine based on that evidence about how the collision occurred. The trial court correctly prohibited the officer from opining concerning which party was at fault in the accident"). Compare McMichen, supra, 221 Ga.App. at 230-231(1), 470 S.E.2d 800 (officer, testifying as expert, could not opine as to whether defendant contributed to or caused the accident); Smith v. Fee, 197 Ga.App. 483, 398 S.E.2d 801 (1990) (officer could not testify whether defendant's actions contributed to the accident). See generally Xpress Cargo Systems v. McMath, 225 Ga.App. 32, 33(1)(b), 481 S.E.2d 885 (1997) (doctor could testify to plaintiff's visual impairment but could not testify to whether her vision was so impaired she could not drive safely).
[10] See Strickland, supra, 218 Ga.App. at 281(4), 459 S.E.2d 473; Emory, supra, 206 Ga.App. at 483, 426 S.E.2d 50.
[11] Jones v. State, 265 Ga. 84, 86-87(5), 453 S.E.2d 716 (1995) (citation omitted); see Weems v. State, 268 Ga. 515, 516(2), 491 S.E.2d 325 (1997) ("[I]f the trial court's curative instructions were not sufficient, defendant should have sought additional relief. Absent any such motion or request by defendant ... [no harm]"); Daniel v. State, 224 Ga.App. 673, 676(6), 482 S.E.2d 409 (1997) (failure to request further instructions or to renew objection waives issue for appellate review). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333316/ | 505 S.E.2d 837 (1998)
234 Ga. App. 269
HOLLIS
v.
The STATE.
No. A98A0859.
Court of Appeals of Georgia.
August 25, 1998.
Reconsideration Denied September 9, 1998.
Certiorari Denied January 15, 1999.
*838 Donna L. Avans, Jefferson, for appellant.
Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.
ANDREWS, Chief Judge.
Lewis Michael Hollis appeals from the judgment entered on a jury verdict finding him guilty of driving while an habitual violator, fleeing and attempting to elude, obstruction of an officer, driving under the influence of alcohol, improper tag, running a stop sign, and reckless driving. On appeal, Hollis argues the evidence was insufficient to prove he was driving while an habitual violator and driving while under the influence of alcohol. He also argues that the trial court improperly admitted evidence of his refusal to submit to chemical testing of his blood and urine.
The evidence at trial, taken in the light most favorable to the jury's verdict, Gazaway v. State, 207 Ga.App. 641, 642, 428 S.E.2d 659 (1993), was that on October 15, 1995, Hollis was observed running a stop sign by Jackson County Sheriff's Deputy Michael Boyle. Boyle turned his vehicle around and began pursuit of Hollis' blue Plymouth Duster. Hollis refused to pull over, and Boyle called for assistance. Upon activation of the blue lights, an in-car video camera was activated in the police car, and it recorded a 12-minute chase during which Hollis was observed weaving across the road and running another stop sign. Deputy Boyle called in the license tag and learned it was assigned to a different vehicle. Other officers joined the pursuit, and a rolling roadblock was established to stop Hollis.
Upon stopping the vehicle, the officers ordered Hollis out of the Duster. When he refused, he was forcefully removed. Pepper spray and batons were used on Hollis who continued to struggle and fight the officers throughout the arrest. In the course of this struggle, Deputy Boyle received cuts, scrapes, and a twisted knee that later required surgery, as well as being accidentally sprayed with pepper spray. After being placed in the back of another officer's car and taken to jail, Hollis was washed to remove the pepper spray. After he was read the Implied Consent Notice, Hollis refused to submit to blood or urine testing. Further investigation revealed Hollis had been declared an habitual violator.
1. On appeal, Hollis argues that it was a legal impossibility for him to be convicted for driving after being declared an habitual violator, relying on Wilson v. Miles, 218 Ga.App. 806, 463 S.E.2d 381 (1995) and that admission of State's Exhibit 3 and denial of his motion for directed verdict on this ground were error. In Wilson, this Court determined that under OCGA § 40-5-58, three separate and unrelated transactions are required for designation as an habitual violator.
State's Exhibit 3 is the Official Notice Of Revocation of February 3, 1992, which declares Hollis an Habitual Violator. It reflects that the declaration arose out of only two arrest incidents, but three convictions, and Hollis objected to it based on Wilson, supra.
Wilson, however, was an appeal from the superior court's affirmance of the Department of Public Safety's declaration of Wilson as an habitual violator, the appropriate procedure for contesting the declaration and a process of which Hollis did not avail himself. Smith v. State, 248 Ga. 828, 831(3), 286 S.E.2d 709 (1982); Hardison v. Shepard, 246 Ga. 196, 198(2), 269 S.E.2d 458 (1980).
This Court has repeatedly held that the essence of the offense is driving after *839 being notified that one may not do so because, by doing so, one is "`"(flouting) the law even if one or more of the underlying convictions is voidable [or void]...." (Cit.)' [Cit.]" Youmans v. State, 207 Ga.App. 373, 374, 427 S.E.2d 848 (1993). The State is required to prove only that the accused was declared an habitual violator and operated a vehicle without having obtained a valid driver's license. State v. Oliver, 202 Ga.App. 613, 614, 415 S.E.2d 54 (1992); State v. Tart, 183 Ga.App. 737, 738, 359 S.E.2d 722 (1987); State v. Bell, 182 Ga.App. 860, 357 S.E.2d 596 (1987).
There was no error in admitting State's Exhibit 3 or denying the motion for directed verdict on this ground.
2. Hollis next contends that the evidence was insufficient to convict him of driving under the influence of alcohol, correctly pointing out that in order to be convicted of driving under the influence of alcohol, some evidence that the accused was under the influence of alcohol must be proffered.
"On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence; moreover[,] an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 [ (1979) ]. Howard v. State, 261 Ga. 251, 252, 403 S.E.2d 204 [ (1991) ]; King v. State, 213 Ga.App. 268, 269, 444 S.E.2d 381 [ (1994) ]." Dolphus v. State, 218 Ga.App. 565, 566, 462 S.E.2d 453 (1995). In the instant case, there is no evidence of impairment due to alcohol. While circumstantial evidence has been sufficient to convict defendants of driving under the influence of alcohol, in such cases, the circumstances included demeanor evidence from the arresting officer of the defendant's behavior and appearance. Such factors as odor of alcohol, bloodshot eyes, and unsteadiness on the feet were used to convict. See Jones v. State, 187 Ga.App. 132, 369 S.E.2d 509 (1988); Blackwell v. State, 180 Ga.App. 253, 349 S.E.2d 13 (1986). In this case, while evidence of unsafe driving existed, the transcript is devoid of any evidence of alcohol indicia. When driving under the influence of alcohol is alleged, the presence of alcohol must be proven by the State. For this reason, the evidence was insufficient to convict the defendant of driving under the influence of alcohol, and that conviction is reversed.
Therefore, it is irrelevant that evidence of the defendant's refusal to take the blood test was admitted. We note for the record that the refusal was properly admitted for the following reasons. Hollis contends evidence of his refusal of the test was improperly admitted at trial because he was not read the implied consent warning in a timely manner.
In Perano v. State, 250 Ga. 704, 300 S.E.2d 668 (1983), the Supreme Court held that failure to read the independent test rights in a timely manner renders the results of chemical testing inadmissible, and Hollis argues the officer was not unable to read the implied consent at the scene, since he was able to drive the defendant to the jail. In Perano, the court allowed the reading of implied consent at the hospital, instead of the scene of arrest because the defendant's wife was continuing to cause commotion at the scene. The court preferred Perano to be able to make an intelligent and informed decision about his rights and felt the hospital was a more appropriate place for him to do so. Id. at 704, 300 S.E.2d 668.
Additionally, this 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.'" Mason v. State, 177 Ga.App. 184, 338 S.E.2d 706 (1985). Here, Hollis and both deputies had been sprayed with pepper spray. The officers attributed their delay in reading implied consent warnings to concern about washing the pepper spray from both themselves and Hollis. Pepper spray is an extreme irritant used as a nonlethal method of disabling resistant suspects, and Deputy Boyle testified as to the unpleasant effects of *840 pepper spray at trial. In addition to making the reading of implied consent difficult for the deputies, it undoubtedly would have distracted Hollis from fully considering his rights.
Deputy Boyle explained that proper police procedure for a suspect that has been sprayed is to get him to the station and wash the irritant off his face and body. Hollis argues that, based on the deputies' own testimony, the pepper spray seemed to have no effect on him and there could not have been any concern about removing it from him. Hollis, however, testified "they say [the pepper spray] didn't have no effect, but itit affected me for a long time after that." The deputies' actions in first taking Hollis to the station and washing him off before reading him implied consent was as close in time to the arrest as practicable, and therefore justified. Evidence of Hollis' subsequent refusal to take the test was properly admitted.
For the above-stated reasons, the conviction for driving while under the influence of alcohol is reversed. The conviction for driving while an habitual violator is affirmed as are the convictions for obstructing an officer, fleeing and attempting to elude, improper tag, reckless driving, and running a stop sign which were not contested.
Judgment affirmed in part and reversed in part.
JOHNSON, P.J., and HAROLD R. BANKE, Senior Appellate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333339/ | 505 S.E.2d 222 (1998)
233 Ga. App. 835
TAYLOR
v.
GELFAND et al.
No. A98A1152.
Court of Appeals of Georgia.
July 30, 1998.
Reconsideration Denied August 12, 1998.
*223 Finch, McCranie, Brown & Thrash, Charles E. McCranie, Atlanta, William R.L. Latson, Jonesboro, for appellant.
Troutman Sanders, Robert L. Pennington, Atlanta, for appellees.
BLACKBURN, Judge.
Pamela Taylor appeals the trial court's grant of summary judgment to Ross Gelfand, Gelfand's law firm, and General Motors Acceptance Corporation (GMAC) in a suit asserting claims for conversion and emotional distress arising from a garnishment action. We affirm.
"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).
Viewed in this light, the evidence shows that GMAC retained Gelfand to collect its accounts. A written agreement between GMAC and Gelfand provided that Gelfand would "employ[] such lawful means, methods, and procedures as in [his] judgment and experience [he] believes will best effect the collection of Accounts." In January 1994, Gelfand undertook to collect money Taylor owed GMAC under a retail installment sales contract. Gelfand obtained a default judgment in the amount of $1,268.73. On June 7, 1994, after Taylor failed to make voluntary payments on the judgment, Gelfand filed a garnishment action in Spalding County against Taylor's employer, the Social Security Administration (SSA).
The SSA did not file an answer to the garnishment nor did it pay any money into the court registry. Rather, it issued Gelfand six checks drawn on a United States treasury account and made payable to the law offices of Ross Gelfand. Although Taylor's name was also noted on the checks, Gelfand testified that he believed the checks were employee withholding tax refunds he had been expecting and deposited them into his law firm's account. In December 1994, the SSA informed Gelfand that Taylor had been transferred out of state. Gelfand released the garnishment against the SSA and refiled in Pike County against a bank account Taylor had with the United Bank of Pike County. Although Gelfand believed the entire judgment remained unpaid when he filed this second garnishment, Taylor actually owed only $76.73.
In June 1995, GMAC terminated its relationship with Gelfand and referred its collection work to another law firm. In the meantime, Taylor filed a traverse to the second garnishment, contesting the amount owed. When the new firm learned of the traverse and Taylor's contention that the judgment had been satisfied, it released the second garnishment. Gelfand discovered his accounting *224 error in August 1995 and remitted the SSA payments to GMAC.
1. In her brief, Taylor contends the trial court erred in granting summary judgment "on all theories of recovery" asserted in her complaint. However, Taylor conceded during the motion hearing that summary judgment was proper with respect to Counts 1 (false statements), 3 (fraud) and 5 (ethical violations) of the complaint. Taylor may not appeal that portion of the judgment to which she consented. Georgia Dept. of Human Resources v. Phillips, 268 Ga. 316, 320(2), 486 S.E.2d 851 (1997). Moreover, because Taylor has presented no legal argument pertaining to the grant of summary judgment as to Counts 1, 3, and 5, any error assignable to those counts is deemed abandoned. Court of Appeals Rule 27(c)(2).
2. In Count 2 of her complaint, Taylor claimed that Gelfand violated OCGA § 51-10-1 when he filed the second garnishment action because the resulting freezing of her bank account amounted to conversion. We disagree. "Conversion is the unauthorized assumption and exercise of the right of ownership over personal property belonging to another which is contrary to the owner's rights." (Punctuation omitted.) Reeves v. Edge, 225 Ga.App. 615, 619(3), 484 S.E.2d 498 (1997). In this case, Taylor's bank account was temporarily seized by virtue of legal process. Consequently, the garnishment was not "unauthorized."
It has long been the law in Georgia "that possession acquired fairly under legal process, is not a wrongful conversion." Smith v. Kershaw, 1 Ga. 259, 261 (1846). Rather, when the "property of a person [was] seized under a valid process issued against him ... malice, want of probable cause, and termination of the proceeding in favor of the defendant in the process [had to] be alleged and proved to support an action for damages against the persons causing the process to be issued and levied." Fulton Grocery Co. v. Maddox, 111 Ga. 260, 265, 36 S.E. 647 (1900). Thus, the overriding issue under these circumstances is whether Gelfand fairly took control of Taylor's bank account under legal process or engaged in abusive litigation in violation of OCGA § 51-7-81. Taylor's "simple allegations of conversion do not address this question, and the court is of the opinion that conversion will consequently not lie." Analytical Systems v. ITT Commercial Finance, 696 F. Supp. 1469, 1475(2) (N.D.Ga. 1986).
3. In Count 4 of her complaint, Taylor alleged intentional infliction of emotional distress. "The conduct complained of in support of a claim for intentional infliction of emotional distress must be extreme and outrageous. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and leave him to exclaim `Outrageous!' ... Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law." (Citation, punctuation, and emphasis omitted.) Williams v. Stepler, 227 Ga.App. 591, 594(2), 490 S.E.2d 167 (1997). Reviewing the record in the light most favorable to Taylor, we find no evidence sufficient to give rise to such a claim. See Ingram v. JIK Realty Co., 199 Ga.App. 335, 336-337(1), 404 S.E.2d 802 (1991).
4. Taylor's claims against GMAC were premised upon a respondeat superior theory of liability. Because we find that Taylor has no claim against Gelfand, there is no liability to impute to GMAC. Moreover, because Taylor failed to show that GMAC, as Gelfand's client, either "expressly or impliedly authorized, knew of, or ratified" Gelfand's allegedly tortious performance of his duties as an attorney, she failed to show that liability could be imputed to GMAC on this basis. Plant v. Trust Co. of Columbus, 168 Ga.App. 909, 910, 310 S.E.2d 745 (1983).
Judgment affirmed.
McMURRAY, P.J., and ELDRIDGE, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333189/ | 165 Ga. App. 146 (1983)
299 S.E.2d 740
JOHNSON
v.
THE STATE.
65072.
Court of Appeals of Georgia.
Decided January 17, 1983.
Wilton E. Stone, Jr., for appellant.
H. Lamar Cole, District Attorney, Greg Jacobs, Assistant District Attorney, for appellee.
SHULMAN, Chief Judge.
Defendant appeals his theft by taking conviction. We affirm.
1. An eyewitness to the theft of jewelry valued at $40,000 identified appellant as the perpetrator. The assistant store manager who pursued the suspected thief identified appellant as the man he chased. This evidence was sufficient to support the trial court's denial of appellant's motion for a directed verdict of acquittal.
2. Appellant also contends that testimony regarding the use of a tracking dog was admitted without a proper foundation having been laid.
"Evidence as to the conduct of dogs in following tracks should not be admitted until after a preliminary investigation in which it is established that one or more of the dogs in question were of a stock characterized by acuteness of scent and power of discrimination, and had been trained or tested in the exercise of these qualities in the tracking of human beings, and were in the charge of one accustomed to use them. It must also appear that the dogs so trained and tested were laid on a trail, whether visible or not, concerning which testimony has been admitted, and upon a track which the circumstances indicate to have been made by the accused. When these preliminary tests have been made, the fact of tracking by a bloodhound may be permitted to go to the jury as one of the *147 circumstances which may tend to connect the defendant with the crime with which he is charged." Fite v. State, 16 Ga. App. 22 (4) (84 S.E. 485). Johnny Browning, the police detective who handled Dingo, the dog used in this case, testified that both he and Dingo had received diplomas from the Canine Training Institute, that Dingo had successfully picked up and followed a human track numerous times in the past, and that Dingo was a German Shepherd, a breed known for its ability to pick up a human scent. The detective stated that, while he and the dog were at the scene of the theft, he received a call that a man matching the description of the suspect had been seen running a short distance from the scene. Browning immediately transported the dog to the new area where the dog picked up a trial and led Browning to a spot where he observed and arrested appellant. Contrary to appellant's assertion, the above-summarized evidence constitutes a sufficient foundation for the admission of testimony concerning the conduct of the tracking dog. Fite v. State, supra.
Judgment affirmed. Quillian, P. J., and Carley, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333190/ | 165 Ga. App. 83 (1983)
299 S.E.2d 153
SUNRISE BONDING COMPANY et al.
v.
BUSBEE.
65078.
Court of Appeals of Georgia.
Decided January 10, 1983.
F. Bradford Wilson, Jr., for appellants.
Willis B. Sparks III, District Attorney, Graham A. Thorpe, Thomas J. Matthews, Assistant District Attorneys, for appellee.
BIRDSONG, Judge.
Bail Bond Discharge of Surety. Sunrise Bonding Co. on June 16, 1981, entered upon the bond of one Willie Jackson in the Superior Court of Bibb County in the amount of $10,000 for the offense of burglary. Jackson was to appear in court on October 19, 1981 to answer to the charge. After the case was called, Jackson did not appear and on that same date, October 19, 1981, the bond was ordered forfeited. On November 19, 1981, Sunrise Bonding Co. and Jackson were ordered to appear on December 14, 1981, to show cause why final judgment on the bond forfeiture should not be entered. It is patent by its absence on the face of the order that no time was indicated. At about 9:00 a. m. December 14, the forfeiture action was called and neither Jackson nor the surety appeared. Final judgment against Jackson and Sunrise was then entered. At 9:30 a. m. a representative of Sunrise Bonding appeared, apparently prepared to pay all costs up to that point and to offer evidence that Jackson was then and had been incarcerated by the State of Georgia in Muscogee County since December 2, 1981, for an unrelated crime. The trial court refused to reconsider the final judgment entered about 30 minutes earlier.
On May 28, 1982, the trial court denied a motion to set aside the judgment of December 14, 1981. It further appears by stipulation of facts that the state admitted Jackson was incarcerated in Muscogee County as of December 2, 1981, and it was aware of a report by the surety prior to the December 14, 1981, forfeiture proceedings that Jackson was reputedly incarcerated in Muscogee on a state charge. The assistant district attorney also had received reports from "the street" that Jackson was incarcerated in Muscogee. However, the assistant district attorney did not consider these reports to be founded in reliable fact. Lastly, the record reflects that Jackson ultimately was surrendered to Bibb County, tried upon his plea of guilty and sentenced for the burglary and car theft for which Jackson originally had been on bail. Sunrise Bonding Co. now brings this appeal urging error in the denial of its motion to set aside the judgment of December 14, 1981. Held:
The fundamental rules for determining when a judgment is void on its face are still valid. Thus a judgment is void on its face where there is a non-amendable defect appearing on the face of the pleadings which is not cured by the verdict or judgment and the pleadings affirmatively show that no legal claim in fact existed. Wasden v. Rusco Industries, 233 Ga. 439, 443 (2) (211 SE2d 733). At the time the court ordered the forfeiture on the bond on October 19, 1981, Jackson was not present nor did the surety know his *84 whereabouts. When final judgment was entered on December 14, 1981, no credible evidence had been presented which would nullify the effect of the bond nor prevent judgment being entered thereon. Thus there was nothing presented to the trial court nor on the face of the pleadings that would put the court on notice that the surety could deliver the principal or that the pleadings did not warrant the entry of final judgment. We can find no error in the denial of the motion to set aside the judgment.
However, this does not end our inquiry. When the principal in a criminal recognizance, conditioned for his appearance to answer a specific criminal charge therein designated, is thereafter arrested before judgment is executed on the bond for an entirely different crime and remains in the custody of the state, the sureties on the bond are released. This release arises from the sureties' inability to produce their principal to answer the charge caused by the state assuming custody of their principal to which they were theretofore entitled. Cooper v. Brown, 10 Ga. App. 730 (73 S.E. 1101). This reasoning finds its genesis in the case of Buffington v. Smith, 58 Ga. 341. Paraphrasing and adapting the language of that case to the present, the court said: " The state had [Jackson] in her own custody ... just as securely confined as if she held him in jail in [Bibb] county. She had, and now has, nothing to do but to bring him out and try him whenever she pleases to do so.... It would be strange, indeed, if she forfeited a bond for his not appearing, when she had him in the jail in [Bibb] county, and the [Muscogee County jail is as] convenient to [Bibb] as to all the rest of the state." Buffington v. Smith, supra, p. 343.
The state and Sunrise each contrarily argue that Code Ann. Ch. 110-3 or Code Ann. Ch. 27-9, respectively, are applicable. Regardless of which chapter we apply, it seems clear that once the state has resumed absolute custody of the principal or the principal has been surrendered, tried and convicted and that all costs have been paid, the surety is entitled to be discharged from liability. See West v. Colquitt, 71 Ga. 559, 562; Benson v. Harris, 19 Ga. App. 328, 329 (91 S.E. 491). There seems to be little doubt that Jackson has been delivered and costs paid, and he has been tried and convicted by Bibb County on the burglary charge, or that he was indeed incarcerated by Muscogee County prior to the expiration of 60 days from the date the bond was ordered forfeited and before the judgment on the bond was entered.
Nevertheless, we cannot afford the relief sought on appeal. It is true the statutes involved are mandatory and require the trial court to relieve the surety from liability. The motion offered by Sunrise Bonding, however, does not seek an order from the trial court *85 relieving the surety from liability, but seeks to have the final judgment set aside. The motion in the case must be tested by whether the allegations in the pleadings are sufficient to entitle the movant to the relief for which prayer was made. There was no credible evidence before the trial court to satisfy the requirements of either Ch. 110-3 or Ch. 27-9; nor do the pleadings show that forfeiture and final judgment on the bond were inappropriate. The motion to set aside the judgment being the only relief sought, the trial court did not err in denying that relief. Fields v. Arnall, 199 Ga. 491, 495 (34 SE2d 692). We reach no conclusions relative to an appropriate plea for discharge from liability.
Judgment affirmed. McMurray, P. J., and Banke, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333191/ | 165 Ga. App. 124 (1983)
299 S.E.2d 414
SHOEMAKER
v.
THE STATE.
64867.
Court of Appeals of Georgia.
Decided January 14, 1983.
Jesse Cleveland, for appellant.
Hinson McAuliffe, Solicitor, Paul C. McCommon III, Assistant Solicitor, for appellee.
SOGNIER, Judge.
Appellant was convicted of loitering and prowling. On appeal he contends the trial court erred (1) by denying his motion for a directed verdict of acquittal; (2) by allowing a police officer to testify about statements made by appellant before he was advised of his rights; and (3) by allowing the loitering and prowling statute to be applied to *125 appellant.
The evidence disclosed that about 2:30 a. m. a police officer observed a car occupied by one person (the driver) in the parking lot of an office complex. None of the offices or businesses were open at the time. Two men ran out of a recessed entranceway to one of the buildings, got in the car, and drove away. The police officer stopped the car a short distance away. Appellant was a passenger in the car and on inquiry by the policeman as to what they were doing in the office complex the driver, appellant and another passenger told the policeman they were looking for a security guard who had raped the girl friend of the second passenger.
1. OCGA § 16-11-36 (a) (formerly Code Ann. § 26-2616) provides: "A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity." Subsection (b) of the same statute provides that among the circumstances which may be considered in determining whether alarm is warranted is the fact that the persons take flight upon the appearance of a law enforcement officer.
It is clear that appellant's conduct falls within the definition of loitering and prowling, and his actions in running from an entranceway upon arrival of the police officer and departing in a car warrant alarm for the safety of the property. Further, the police officer testified that he was patrolling this area because there had been several burglaries in the office complex where the offense occurred. A trial court's refusal to grant a directed verdict of acquittal is error only where there is no conflict in the evidence and a verdict of acquittal is demanded as a matter of law. Sims v. State, 242 Ga. 256, 257 (1-3) (248 SE2d 651) (1978). The evidence in the instant case did not demand a verdict of acquittal as a matter of law. Hence, it was not error to deny appellant's motion.
2. The police officer testified that when he stopped the car in which appellant was a passenger he obtained the identification of the occupants of the car. The officer then asked the driver of the car what he had been doing in the office complex. The driver and both passengers responded almost simultaneously that they were looking for the security guard who allegedly raped a girl. Appellant contends that it was error to allow such testimony because none of the three men in the car had been advised of their Miranda rights (Miranda v. Arizona, 384 U.S. 436 (86 SC 1602, 16 LE2d 694) (1966)).
The police officer asked no questions of appellant and the other passenger, but asked Sicard, the driver, what he had been doing in the office complex. Thus, any responses by appellant and the other *126 passenger were not the result of police questioning but were spontaneous declarations, and as such were admissible. Tucker v. State, 237 Ga. 777 (2) (229 SE2d 617) (1976), non-custodial statements; Allums v. State, 161 Ga. App. 842, 846 (5) (288 SE2d 783) (1982), in-custody statements. Hence, it was not error to allow the officer to testify as to statements made by appellant and the other passenger.
As to Sicard, the driver, there appears to be no question that the police officer suspected Sicard of prowling and should have advised him of his Miranda rights before questioning him. However, any error in allowing the officer's testimony was harmless, because Sicard appeared as a state witness, was subject to cross-examination, and testified to the same facts as the officer, i.e., that the three men were in the office complex looking for the security guard. Garvin v. State, 144 Ga. App. 396, 397 (1) (240 SE2d 925) (1977); Robinson v. State, 229 Ga. 14, 16 (1) (189 SE2d 53) (1972).
3. Appellant contends that the trial court erred in allowing the Prowling Statute to be applied to him.
OCGA § 16-11-36 (b) (Code Ann. § 26-2616) provides, in pertinent part: "... a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct." Appellant argues that this section was used to deprive him of his constitutional right to remain silent.
We need not decide whether the statute in this case was used to deprive appellant of his right to remain silent in violation of Miranda, supra. As we indicated in Division 2 of this decision, no questions were addressed directly to appellant and his statements were spontaneous declarations. Thus, appellant's argument that the statute was used to deprive him of his constitutional rights is without merit.
Judgment affirmed. Deen, P. J., and Pope, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333196/ | 165 Ga. App. 215 (1983)
299 S.E.2d 51
PELUSO
v.
CENTRAL OF GEORGIA RAILROAD COMPANY et al.
64748.
Court of Appeals of Georgia.
Decided January 4, 1983.
Rehearing Denied January 27, 1983.
Harold G. Benefield, John C. Carbo III, Benjamin B. Garland, for appellant.
Michael Goldman, William H. Major III, for appellees.
SHULMAN, Chief Judge.
This appeal is from the trial court's award of summary judgment to appellee City of Morrow in this action in which appellant seeks to recover for injuries sustained in an automobile-train collision near the intersection of Mt. Zion Road and State Highway 54 in Morrow, Georgia. The complaint alleged that as appellant was driving her vehicle westbound on Mt. Zion Road and approaching the intersection with Highway 54, a traffic light forced her to come to a *216 halt where railroad tracks cross Mt. Zion Road east of the intersection. Her car stalled on the tracks and she attempted to flee when a train approached. She was, however, unable to get far enough away from her vehicle to escape injury when the train struck the automobile and propelled it against her. Various specifications of negligence are made, all of which relate to an alleged public nuisance created by the alleged failure of appellee to place proper warning devices at the railroad crossing on Mt. Zion Road and the intersection of Mt. Zion Road and Highway 54.
A review of the record in this case shows that the trial court did not err in granting appellee's motion for summary judgment. Affidavits and deposition testimony show without contradiction that the subject portion of Mt. Zion Road is owned, maintained, and repaired by Clayton County or the railroad rather than appellee. All Mt. Zion Road traffic control devices and their maintenance, including those at the railroad crossing and the intersection with Highway 54, are the property and responsibility of Clayton County or the railroad. Code Ann. §§ 95A-401 (a); 95A-901 (c); 95A-1006 (OCGA §§ 32-4-41; 32-6-50; 32-6-190). Code Ann. § 95A-505 (b) (OCGA § 32-4-93) specifically provides: "A municipality is hereby relieved of any and all liability resulting from or occasioned by defective construction of those portions of the State Highway System or county road system lying within its corporate limits or resulting from the failure of the department or the county to maintain such roads as required by law unless the municipality constructed or agreed to perform the necessary maintenance of such road."
The record contains no evidence that appellee actually has performed or has agreed to perform maintenance on Mt. Zion Road. The affidavits of the Morrow City Manager and the Clayton County Traffic Engineer establish that Mt. Zion Road is maintained and repaired for traffic control exclusively by Clayton County and that appellee has not assumed any responsibility for such maintenance and repair. All traffic control devices, other than those constructed by the railroad, have been constructed by Clayton County. The facts that the intersections are within appellee's police jurisdiction or that Clayton County may have consulted with appellee prior to erecting traffic control devices, even if true, provide no evidence that appellee has assumed responsibility for maintenance of the section of road in question.
Since no genuine issue of material fact exists as to appellee's liability to appellant in this action, the trial court did not err in granting appellee's motion for summary judgment. Code Ann. § 81A-156 (OCGA § 9-11-56).
Judgment affirmed. Quillian, P. J., concurs. Carley, J., concurs *217 specially.
CARLEY, Judge, concurring specially.
Because I am constrained to conclude that the issues in this case are controlled adversely to appellant by the principles enunciated by the Supreme Court in Mayor &c. of Savannah v. Palmerio, 242 Ga. 419 (249 SE2d 224) (1978), I reluctantly concur in the affirmance of the grant of summary judgment to appellee. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333188/ | 299 S.E.2d 500 (1983)
Shirley Margaret Ratliff SHORTRIDGE, et al.
v.
Arlene DEEL, et al.
Record No. 801001.
Supreme Court of Virginia.
January 21, 1983.
*501 Keary R. Williams, Grundy (Williams & Gibson, Grundy, on brief), for appellants.
Gilbert K. Davis, McLean (Davis, Gillenwater & Lynch, McLean, on brief), for appellees.
Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.
COCHRAN, Justice.
Arlene Deel and Jerry Deel, her husband, filed their petition in the Juvenile and Domestic Relations Court of Buchanan County to obtain custody of Lawrence Robbie Don Ratliff (Robbie), an infant born May 11, 1977. Shirley Margaret Ratliff (Margaret), the unmarried mother of Robbie, opposed the petition and appealed the order entered on December 13, 1978, awarding custody to the Deels. On December 16, 1978, Margaret married Elbert Shortridge, who had testified at trial that he was Robbie's father.
In February of 1979, the Deels filed their petition in the Circuit Court of Dickenson County for the adoption and change of name of Robbie. By agreement of counsel, appeal of the award of custody was consolidated with the petition for adoption for hearing in the trial court and the transcript of the proceedings in the earlier custody hearing was made a part of the record. The court also heard additional evidence ore tenus and considered reports of the Departments of Social Services of Buchanan and Dickenson Counties and of the Commissioner of Welfare. Shortridge was before the court. The Shortridges, represented by the same attorney, testified in opposition to the Deels' petitions for custody and adoption.
In its order entered March 31, 1980, granting custody to the Deels, the trial court set forth findings that Margaret had voluntarily relinquished Robbie to the Deels *502 shortly after the child's birth, that Shortridge had "relinquished any custodial and parental rights he may have had," and that the best interests and welfare of the child would be served by awarding custody to the Deels. The court found in the same order that Margaret and Shortridge had withheld their consent to Robbie's adoption contrary to the best interests of the child and that under the provisions of Code § 63.1-225, therefore, their consent was not required. The order referred the matter again to the Department of Social Services of Dickenson County and the Commissioner of Welfare for a supplemental report under Code § 63.1-223 before entry of an interlocutory order of adoption under Code § 63.1-226.
On appeal, the Shortridges contend that the trial court erred in granting custody of Robbie to the Deels and in finding that the Shortridges had voluntarily relinquished custody of Robbie and had withheld consent to his adoption by the Deels contrary to the best interests of the child. We will address the award of custody, including the finding of voluntary relinquishment of custody by the natural parents.
We will not review, however, the correctness of the trial court's finding, set forth in the portion of its order pertaining to the petition for adoption, that the natural parents withheld their consent to adoption contrary to the best interests of Robbie. Absent an appealable order in the adoption proceeding we may not determine whether any of the requirements for adoption have been met. The order in this case was not a final or even an interlocutory order of adoption nor was it appealable as an order "[a]djudicating the principles of a cause." Code § 8.01-670(B)(3). The trial court, by deciding that the consent of the natural parents to the adoption was not required, made only one of several determinations necessary for the entry of an order of adoption. See Code §§ 63.1-226, -230. Therefore, the finding made in the adoption proceeding is not yet appealable.
Voluntary relinquishment by a parent of custody of a child must be shown by clear, cogent, and convincing evidence. Szemler v. Clements, 214 Va. 639, 644, 202 S.E.2d 880, 884 (1974); Walker v. Brooks, 203 Va. 417, 421, 124 S.E.2d 195, 198 (1962). The Juvenile and Domestic Relations Court of Buchanan County, in its order entered December 13, 1978, found that the Deels had carried their burden of proving by the required standard that Margaret, then unmarried, had voluntarily relinquished custody of Robbie. The trial judge, in letter opinions dated December 31, 1979, and March 6, 1980, stated that he concurred in this finding as to Margaret and concluded that Shortridge had also voluntarily relinquished custody when the Deels first obtained Robbie.
In accordance with familiar principles, we will review the evidence in the light most favorable to the Deels, the prevailing parties below. The credibility of witnesses was crucial to the determination of the facts, and the findings of the trial court based upon the judge's evaluation of the testimony of witnesses heard ore tenus are entitled to great weight.
Prior to Robbie's birth, Margaret lived in a mobile home with her two illegitimate daughters, Gail and Shane, ages 12 and 3, respectively, at the time of the first custody hearing in 1978. Margaret was self-employed as a bookkeeper.
Arlene Deel testified that Margaret, early in her pregnancy, asked her to take the baby and she agreed to do so on condition that Margaret would not change her mind and try to take the baby back. When she had been pregnant about six months, Margaret came to the Deels' home and told Arlene that she had the necessary money and was going to have an abortion if Arlene did not want the baby. Arlene reassured Margaret and told her that she could see the baby whenever she wished. Arlene felt that in this conversation she had been responsible for persuading Margaret not to have the abortion. This testimony was contradicted by Margaret, but the trial judge could and apparently did believe Arlene.
There was evidence that the baby, born prematurely, was kept in the hospital for *503 two weeks, during which time Arlene and her daughter, Pam, visited him frequently. When the baby was released from the hospital, Arlene, Pam, and Margaret brought him directly from the hospital to the Deels' home, where he remained almost constantly for 17 months. Pam gave him his principal name. Margaret was permitted by the Deels to see Robbie and to have him visit her in her home. After 17 months, Margaret took the child for a visit and refused to return him to the Deels until five weeks later, when, on the Deels' petition, the juvenile and domestic relations court awarded custody to them. Robbie has remained in the custody of the Deels since December of 1978. They have provided for him a structured family life in a stable environment.
About one year after Robbie's birth, an acquaintance of Margaret's asked her whether the report was true that she had given her baby to the Deels. According to this witness, Margaret acknowledged that she had done so, because she thought the Deels could provide for him better than she could.
To enable the Deels to include Robbie under their medical policy Margaret informed an insurance agent that she had given Robbie to the Deels for adoption. The Deels included him under another insurance policy also covering medical expenses; Robbie became a named insured on the policy under the name "Deel." They paid for most of Robbie's food, clothing and medical treatment.
Margaret refused the Deels' offer to pay the hospital bill incurred at the time of Robbie's birth. She paid the bill in part and, after her marriage, she and her husband paid the balance.
Margaret admitted that she lived with one Perry Fuller before she began her intimate relationship with Shortridge, and that she may have told Fuller that he was Shane's father, but she insisted that Shortridge was the father of both Shane and Robbie. She testified that one Ralph Reece was Gail's father. Although she admitted having had sexual relations previously with other men, Margaret maintained that she had been faithful to Shortridge ever since Shane's birth.
Until he admitted his paternity in the hearing on December 6, 1978, Shortridge had denied that he was Robbie's father. He was a first cousin of Arlene's and a friend of Jerry Deel's. He told Arlene that one Arnold Bailey was Robbie's father; he informed Jerry that he did not wish to see Robbie because the child was not his.
Although there is evidence that Shortridge contributed to the support of Margaret before their marriage, there is no evidence that he contributed directly to Robbie's support. He conceded that he did not call the Deels a single time during the first 17 months of Robbie's life to inquire about the child.
The foregoing clear, cogent, and convincing evidence amply supports the findings of the trial court that Margaret voluntarily relinquished the custody of Robbie to the Deels and that Shortridge relinquished whatever custodial and parental rights he had.
Once the relinquishment of custody is established, the natural parents who seek to regain custody must bear the burden of proving that such change is in the child's best interests. Szemler v. Clements, supra, 214 Va. at 644, 202 S.E.2d at 884. The trial court could have based its award of custody to the Deels on a finding that the Shortridges had failed to carry the burden of proving that transfer of custody to them would be in the best interests of the child. But the court went further by affirmatively finding that the "best interest and welfare of the child" would be served by granting custody to the Deels. The trial judge stated in his letter opinion of December 31, 1979, that the "time element involved after the Deels first obtained actual custody ..., the history of Mrs. Ratliff and Mr. Shortridge prior to their marriage," and the medical evidence concerning the child "weighed very heavily" in his decision.
The evidence shows that Margaret made no effort to regain custody of Robbie during the first 17 months of his life. Her *504 explanation that she considered the Deels to be "baby-sitters" for her child throughout that time, and she did not want to lose the benefit of their services, understandably was rejected by the trial court in its finding of voluntary relinquishment of custody. Except for the period of five weeks prior to the hearing on December 6, 1978, Robbie has been a part of the Deel family. To him Arlene is his mother, Jerry his father, and Pam his sister. They brought this frail and sickly child, who suffered from respiratory problems, safely through his earliest years. Margaret conceded that from December 6, 1978, until April 27, 1979, she never had any contact in person with Robbie and never inquired of the Deels about him in person or by telephone. On April 30, 1979, the trial court entered an order granting reasonable visitation rights to Margaret and Shortridge. By order entered June 21, 1979, these visitation rights were specifically definedMargaret and Shortridge were permitted to visit Robbie in the Deels' home from 2:00 p.m. to 3:00 p.m. each Sunday. The same order required that Robbie, the Deels, and the Shortridges submit to psychiatric evaluation by Dr. Pierce D. Nelson.
After marrying Shortridge, Margaret moved with Gail and Shane into the house occupied by Shortridge. The Shortridges then assumed a more conventional life-style than either had previously experienced since Robbie's birth. The evidence shows that the Shortridges, as well as the Deels, had the financial resources to provide more than adequately for Robbie's material needs. According to Margaret, she knew Shortridge was Shane's father and Shortridge had considered adopting her, but Shane had not been adopted by Shortridge and still went by the name of "Ratliff." Margaret said that Shortridge might wish to adopt all three of her children, but this plan was still under discussion. Prior to his marriage to Margaret, Shortridge had been married for more than 19 years to a school teacher, who testified that he physically injured her during their marriage and drank to excess every weekend.
Dr. Nelson, who had conducted interviews with the Deels, the Shortridges, and Robbie, testified that Robbie was a hyperactive child but that the Deels had done "a beautiful job with the hyperactivity." He found that both Shortridges and both Deels came within "the broad range of normal" on psychiatric evaluation. He felt, however, that Shortridge, with "limited ability" and "temper" problems, would have "some trouble" in taking care of a child, especially a child such as Robbie, who had problems with "wetting of his pants, ... sleeping, irritability, and excitement ... and some fear." Dr. Nelson recommended that Robbie remain with the Deels.
In making his recommendation, Nelson acknowledged it was "a close decision." He knew Margaret had been acutely psychotic in 1969, had been hospitalized in a psychiatric hospital, and had "spent time in therapy." He was of opinion that she had recovered, but he desired to conduct further psychological testing, which she refused, to reinforce his belief that she was "functioning normally." Dr. Nelson testified that Robbie, a brighter-than-average child, was happy with the Deels. The doctor's recommendation as to custody was based upon Robbie's hyperactivity and the disruptiveness of moving the child.
We hold that the evidence amply supports the findings of the trial court and we will affirm the decree awarding custody to the Deels.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333194/ | 165 Ga. App. 238 (1983)
299 S.E.2d 141
DOBBS et al.
v.
COBB E.N.T. ASSOCIATES, P.C. et al.
64878.
Court of Appeals of Georgia.
Decided January 7, 1983.
Rehearing Denied January 28, 1983.
Carl P. Fredericks, for appellants.
*241 Robert G. Tanner, for appellees.
BIRDSONG, Judge.
Medical Malpractice. Appellants instituted this action on April 8, 1981, against two treating physicians and the professional medical corporation for which the physicians were employed. The complaint alleged negligent performance of medical services and breach of contract for medical services arising from the physicians' treatment of appellant R. L. Dobbs for facial injuries sustained in May, 1977. This action is apparently identical to an action for the same cause instituted against the same parties in 1979 and voluntarily dismissed by appellants in October, 1980, during the pendency of a motion for summary judgment filed by the defendants therein. A companion action was also filed against only one of the physicians in the Superior Court of Fulton County on March 14, 1979. The latter action was voluntarily dismissed by the plaintiffs therein on August 14, 1979.
On January 4, 1982, the defendants moved for summary judgment in the present action. In support of their motion, defendants offered affidavits of both treating physicians in which they set forth the details concerning their treatment of appellant R. L. Dobbs, with each stating that all services were rendered with "that degree of care and skill which was customarily and ordinarily employed by physicians of my specialty not locally but generally in 1977" and that "at all times I exercised a reasonable and competent degree of medical care and skill on the patient's behalf, and at no time did I depart from a reasonable and competent degree of care and skill in my treatment of this patient." On February 16, 1982, the trial court entered an order granting summary judgment to one of the physicians. No appeal was taken from that order.
Appellants offered no evidence, by way of affidavit or otherwise, to rebut appellees' motion. Instead, on February 24, 1982, appellants noticed the depositions of both treating physicians for February 26, 1982. Appellees' motion was set for hearing on March 3. At that hearing, appellees' counsel stated that he informed appellants' counsel that the physicians would not be available for deposition on *239 February 26 but that he would make the physician who remained a party to the action available on the following day, which was reportedly not agreeable to appellants' counsel. There is no indication in the record that appellants' counsel attempted to go forward with the depositions on February 26. Instead, appellants filed a motion for continuance at the March 3 hearing. Appellants requested that the trial court invoke its discretion to postpone the hearing on appellees' motion until the depositions of the treating physicians could be accomplished. After hearing on both motions, the trial court denied appellants' motion to continue and granted appellees' motion for summary judgment based upon the unrebutted opinions of the physicians' stating that all services had been performed with a reasonable degree of care and skill.
1. We find no error in the trial court's denial of appellants' motion to continue. Such a decision rests within the sound discretion of the trial judge and will not be reversed on appeal absent palpable abuse of that discretion. Code Ann. §§ 81-1419; 81A-156(f); Cole v. Jordan, 158 Ga. App. 200 (279 SE2d 497). As in Cole, the facts of this case clearly demonstrate that the appellants were not diligent in obtaining the desired discovery, Code Ann. § 81-1416, and their failure to obtain that discovery did not entitle them to a continuance of the hearing on the motion for summary judgment.
2. Appellant attacks the court's decision to award summary judgment to appellees on the ground that application of the rule enunciated in Howard v. Walker, 242 Ga. 406, 408 (249 SE2d 45), and Parker v. Knight, 245 Ga. 782 (267 SE2d 222), is unconstitutional in that it amounts to a denial of equal protection. The rule enunciated in those cases, and in numerous cases that have followed, see e. g., Payne v. Golden, 245 Ga. 784 (267 SE2d 211); Freeman v. Sreeram, 161 Ga. App. 594 (289 SE2d 524), provides that "in those cases where the plaintiff must produce an expert's opinion in order to prevail at trial, when the defendant produces an expert's opinion in his favor on motion for summary judgment and the plaintiff fails to produce a contrary expert opinion in opposition to that motion, then there is no genuine issue to be tried by the jury and it is not error to grant summary judgment to the defendant." Howard v. Walker, supra, p. 408. This rule, as applied to physicians, is premised on the well established principle that "expert medical evidence is required to establish negligence respecting the service a physician or a surgeon renders his patient ... `in the absence of expert testimony in behalf of the plaintiff in a malpractice case, the court is not justified in submitting the same to the jury.'" Shea v. Phillips, 213 Ga. 269, 271 (98 SE2d 552).
Appellants have provided no guidance or authority supporting *240 their position that the application of this principle to summary judgment efforts in malpractice cases amounts to a denial of equal protection. As is demonstrated by the long line of authority from both this court and the Supreme Court upholding and applying the rule enunciated in Howard v. Walker, supra, appellants' enumeration of error on this ground is wholly without merit.
3. Equally without merit is appellants' argument that this case falls within that class of cases in which expert opinion is not required to support a jury finding of negligence on the part of the physician. "[W]here the result of medical treatment is so pronounced as to become apparent, as where a leg or limb which has been broken is shorter than the other after such treatment, or where a doctor undertakes to stitch a wound on his patient's cheek, and, by an awkward move, thrusts his needle into the patient's eye, this fact may be testified to by anyone competent to testify; and cases of such character are the only exception in this jurisdiction to the general rule requiring expert medical testimony to show negligence respecting a physician's or surgeon's service to his patient." Shea v. Phillips, supra, p. 271-272.
This is not a case, however, "where actionable negligence clearly appears from the evidence." Lindsey v. Central Anesthesia Assoc., 161 Ga. App. 214, 215 (288 SE2d 292). The affidavits of the treating physicians establish that appellant sustained in an accident a fractured nose with severe nose bleed. A surgical procedure described as a "right Caldwell-Luc procedure with ligation of the internal maxillary artery" was performed several days after the accident. It is not patently clear how the physicians failed to exercise ordinary care in the treatment of Mr. Dobbs or how his blindness in one eye could have resulted from such negligence, if any. The trial court could not submit to the jury appellants' allegation of actionable breach of the duty of care owed by physician to patient without appellants' production of expert testimony to support such allegation. Accordingly, as appellees had pierced all material allegations of the complaint and established the requisite skill and care in the treatment of Mr. Dobbs, Code Ann. § 84-924; Fain v. Moore, 155 Ga. App. 209 (270 SE2d 375), the trial court properly granted appellees' motion for summary judgment.
Judgment affirmed. McMurray, P. J., concurs. Banke, J., concurs specially.
BANKE, Judge, concurring specially.
1. I must concur in this case only because I am compelled to follow Howard v. Walker, 242 Ga. 406 (249 SE2d 45) (1978), until such time as it is overruled.
2. My view of this evidentiary concept is related in my special concurrence in Self v. Executive Committee of Ga. Baptist Convention, 151 Ga. App. 298 (259 SE2d 695) (1979), and as set forth in the scholarly dissenting opinion of Justice Jordan, joined by Justice Undercofler in Howard, supra. Further, it is worth noting that Chief Justice Nichols in his special concurrence also did not embrace the new-found rule on opinion evidence. It is most disturbing to the bench and bar to have mere theoretical law uproot an area of law that has been well settled and has served well for more than 185 years especially when there is no need to do so. This is a classic example of a violation of the oft repeated old saw: If it's not broken, don't fix it.
3. When the wholesale inequities of the new-found rule are brought to mind, it is interesting to note that it has not yet faced a direct constitutional challenge in the Supreme Court of Georgia or the federal courts. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333193/ | 299 S.E.2d 629 (1983)
NORTH CAROLINA NATIONAL BANK
v.
VIRGINIA CAROLINA BUILDERS.
No. 414A82.
Supreme Court of North Carolina.
February 8, 1983.
Harrington, Stultz & Maddrey by Thomas S. Harrington, Eden, for plaintiff-appellee.
*630 Bryant, Drew, Crill & Patterson, P.A. by Victor S. Bryant, Jr., Durham, for defendant-appellant.
EXUM, Justice.
The first question raised in this case is whether one panel of the Court of Appeals may overrule the decision of another panel on the same question in the same case. We conclude that it may not. On the merits, we conclude the Court of Appeals also erred in holding that plaintiff may obtain a default judgment when there is an answer on file on the ground the answer was filed by an out-of-state attorney not authorized to practice in North Carolina.
On 3 July 1979 plaintiff filed complaint for recovery of $32,650.81 allegedly owed it on a promissory note executed by defendant. Defendant employed John D. Epperly, an attorney licensed to practice in Virginia with offices in Martinsville, Virginia, to represent it in the action. Mr. Epperly filed an answer to the complaint on 25 July 1979, alleging that only $1,000 plus interest on that amount was owed. Mr. Epperly failed, however, to obtain the limited admission to practice in North Carolina afforded out-of-state attorneys under G.S. 84-4.1. Plaintiff filed a reply to defendant's answer on 27 July 1979.
On 19 October 1979 plaintiff filed motion for entry of default under Rule 55 of the North Carolina Rules of Civil Procedure, citing the failure of defendant's attorney to comply with G.S. 84-4.1 as the basis for plaintiff's entitlement to a default judgment. Victor S. Bryant, Jr., a licensed North Carolina attorney, filed notice of appearance on 8 November 1979, and specified that he would be actively defending the case with Mr. Epperly. The Clerk of Rockingham Superior Court filed an entry of default on 2 February 1981, and entered a default judgment on 3 February 1981. Plaintiff was awarded the amount sought, plus interest on the principal owed until payment was made and costs of the action.
Mr. Bryant filed a motion on 16 February 1981, pursuant to Rule 55(d) of the North Carolina Rules of Civil Procedure, to set aside the entry of default.[1] Mr. Epperly filed a separate motion to set aside the default judgment, pursuant to Rule 60(b), on 17 February 1981. He also filed on 16 March 1981 a motion for admission to practice under G.S. 84-4.1 for the purpose of representing defendant in this action.
Judge Long granted Mr. Epperly's motion to practice on 21 April 1981, but provided that the court's order would be applied prospectively only in order not to prejudice any rights already accrued to plaintiff. He also granted the motion to set aside the default judgment. In doing so, he first took judicial notice of a custom among Virginia attorneys practicing in areas near the North Carolina border to appear in North Carolina courts without complying with the provisions of G.S. 84-4.1. He found Mr. Epperly's failure to comply to be "in keeping with such practice and custom." He further found that defendant had alleged a valid defense to the action, and that even if Mr. Epperly had been negligent in failing to comply with G.S. 84-4.1 in a timely fashion, his negligence should not be imputed to defendant. He ordered that the default judgment be set aside.
Plaintiff on 12 June 1981 petitioned the Court of Appeals for a writ of certiorari which was denied on 8 July 1981 by a panel of the Court of Appeals composed of Judges Clark, Webb and Wells. Plaintiff on 3 August 1981 filed a record on appeal in the Court of Appeals, pursuant to a notice of appeal given on 27 April 1981. Defendant filed a motion to dismiss the appeal on 14 August 1981.
The Court of Appeals reversed the decision of the trial court to set aside the judgment without expressly ruling on the motion to dismiss. Judge Hedrick, writing for the majority, recognized that orders setting aside default judgments are ordinarily non-appealable *631 interlocutory orders. He declared, however, that "because the present order contains serious error regarding a matter of great importance we, in our discretion, choose to review it." The majority noted its disapproval of the trial court's taking judicial notice of widespread failure to comply with North Carolina statutory requirements for out-of-state attorneys to practice in this state. It concluded that Mr. Epperly's failure to comply with G.S. 84-4.1 was inexcusable negligence that should be imputed to defendant; therefore, the trial court erred in setting aside the judgment.
Judge Morris dissented on the ground that the appeal was interlocutory and that she "perceive[d] no reason to exercise our discretionary authority to review the matter by treating this purported appeal as a petition for writ of certiorari and allowing the writ," particularly since "[a]nother panel has already denied a petition for a writ of certiorari previously filed here by plaintiff." She also disagreed with the majority's determination on the merits, citing the rule that a default may not be entered by the clerk after an answer has been filed even if that answer is technically deficient. Plaintiff had not challenged the answer with a motion to strike, thus the answer remained of record.
Defendant appealed to this Court as a matter of right under G.S. 7A-30(2).
Under the general rule set forth in Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 433-34 (1980), the superior court's order setting aside the default judgment in the instant case is not appealable because it is interlocutory, and there has been no showing that it affects a substantial right and will cause irreparable injury to plaintiff if left uncorrected before appeal from a final judgment. Both panels of the Court of Appeals that considered this case correctly concluded the order was not appealable and could be considered by the Court of Appeals only in the exercise of that court's discretionary power to grant appellate review. The first panel determined in its discretion not to review the case. Later, the second panel determined to exercise its discretion in favor of review. Thus, on the question of reviewability, the second panel of the Court of Appeals in effect overruled the first.
Although we have never considered the question, well-established analogies in our law lead us to conclude that the second panel of the Court of Appeals was without authority to overrule the first on the same question in the same case. Once an appellate court has ruled on a question, that decision becomes the law of the case and governs the question not only on remand at trial, but on a subsequent appeal of the same case. Tennessee-Carolina Transportation, Inc. v. Strick Corp., 286 N.C. 235, 239, 210 S.E.2d 181, 183 (1974); Horton v. Redevelopment Commission of High Point, 266 N.C. 725, 726, 147 S.E.2d 241, 243 (1966); Bass v. Mooresville Mills, 15 N.C.App. 206, 207-08, 189 S.E.2d 581, 582, cert. denied, 281 N.C. 755, 191 S.E.2d 353 (1972). At the trial level "[t]he well established rule in North Carolina is that no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another's errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action." Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972). "The power of one judge of the superior court is equal to and coordinate with that of another, and a judge holding a succeeding term of court has no power to review a judgment rendered at a former term on the ground that the judgment is erroneous." Michigan National Bank v. Hanner, 268 N.C. 668, 670, 151 S.E.2d 579, 580 (1966).
Applying these principles to the question before us, we conclude that once a panel of the Court of Appeals has decided a question in a given case that decision becomes the law of the case and governs other panels which may thereafter consider the case. Further, since the power of one panel of the Court of Appeals is equal to and coordinate with that of another, a succeeding panel of that court has no power to review the decision *632 of another panel on the same question in the same case. Thus the second panel in the instant case had no authority to exercise its discretion in favor of reviewing the trial court's order when a preceding panel had earlier decided to the contrary.
Our decision on this point in no way impinges on the power of this Court or the Court of Appeals to change its ruling upon a motion to rehear, or on the court's own motion, if the court determines that its former ruling was clearly erroneous. In the case of the Court of Appeals, however, such a change must be made, if at all, by the same panel which initially decided the matter. Otherwise, a party against whom a decision was made by one panel of the Court of Appeals could simply continue to press a point in that court hoping that some other panel would eventually decide it favorably, as indeed the plaintiff did in this case; and we would not have that "orderly administration of the law by the courts," Rutherford College v. Payne, 209 N.C. 792, 796, 184 S.E. 827, 830 (1936), which litigants have a right to expect.
The second panel of the Court of Appeals from which the appeal to us is taken erred, therefore, in not allowing defendant's motion to dismiss the purported appeal.
Since, however, we also conclude that the Court of Appeals erred in resolving the case on its merits, we have decided, in the exercise of our supervisory power, to address this question. We agree with Judge Morris's analysis of the question whether a default judgment may be entered when an answer has been filed by an attorney not authorized to practice in North Carolina. Rule 55(a) of the North Carolina Rules of Civil Procedure states: "Entry. When a party against whom a judgment for affirmative relief is sought has failed to plead ... and that fact is made to appear by affidavit or otherwise, the clerk shall enter his default." (Emphasis added.) Thus, default may not be entered if an answer has been filed, even if the answer is deficient in some respect. Peebles v. Moore, 302 N.C. 351, 275 S.E.2d 833 (1981) (no default judgment could be entered by clerk even though answer not timely filed); Rich v. Norfolk Southern Railway Co., 244 N.C. 175, 92 S.E.2d 768 (1956) (unverified answer precluded entry of default judgment); Bailey v. Davis, 231 N.C. 86, 55 S.E.2d 919 (1949) (no default judgment could be entered by clerk even though answer not timely filed). Concern for an equitable and just result undergird this rule. As Chief Justice Branch stated in Peebles v. Moore, supra, 302 N.C. at 356, 275 S.E.2d at 836,
We believe that the better reasoned and more equitable result may be reached by adhering to the principle that a default should not be entered, even though technical default is clear, if justice may be served otherwise. McIntosh, North Carolina Practice and Procedure (1970, Phillips Supp.) § 1670; 3 Barron and Holtzoff, Federal Practice and Procedure (Wright ed., 1961) § 1216.
Here plaintiff does not contend that his right to fairly litigate his action has been impaired because defendant tardily filed his answer. The record shows that defendant was a few days late in filing his answer, and plaintiff delayed until answer was filed and issues joined before seeking entry of default and before filing a reply. Without considering the questions of just cause, excusable neglect or waiver, we conclude that justice will be served by vacating the entry of default and permitting the parties to litigate the joined issues.
We conclude the default judgment in the instant case was improperly entered because defendant's answer, even though filed by an out-of-state attorney, was on the record. Plaintiff's remedy was to move to strike the answer, and then to move for entry of default and default judgment. Rich v. Norfolk Southern Railway Co., supra, 244 N.C. at 180, 92 S.E.2d at 772; Bailey v. Davis, supra, 231 N.C. at 89, 55 S.E.2d at 921.
Because no motion to strike the answer has been made, the question whether a pleading filed by an out-of-state attorney who had not qualified under G.S. 84-4.1 *633 may be stricken for that reason is not before us and we do not reach it. Also not before us is the question whether defendant's employment of an out-of-state attorney to defend an action brought in North Carolina is excusable neglect. Defendant need not have made this showing because of our conclusion that the clerk was without authority to enter a default judgment while defendant's answer was on record.
The decision of the Court of Appeals is
REVERSED.
COPELAND and FRYE, JJ., did not participate in the consideration or decision of this case.
NOTES
[1] Mr. Bryant subsequently supplemented this motion with a motion filed on 26 February 1981 to set aside the default judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333211/ | 250 Ga. 491 (1983)
299 S.E.2d 566
GEORGE et al.
v.
DEPARTMENT OF NATURAL RESOURCES OF THE STATE OF GEORGIA et al.
39188.
Supreme Court of Georgia.
Decided January 25, 1983.
Morris & Manning, Barry B. McGough, David A. Rabin, *494 Sanders, Mottola, Haughen & Goodson, Charles L. Goodson, for appellants.
Alston, Miller & Gaines, G. Conley Ingram, Nill V. Toulme, Michael J. Bowers, Attorney General, Carl C. Jones, Assistant Attorney General, for appellees.
HILL, Chief Justice.
This is an appeal from the dismissal of a complaint seeking declaratory and injunctive relief which was filed by Heard County and several residents and landowners therein, including a corporation. The plaintiffs named four defendants: Earth Management, Inc., the Department of Natural Resources of the State of Georgia (DNR), the Environmental Protection Division of DNR (EPD), and J. Leonard Ledbetter, in his capacity as Director of EPD. This suit was filed after Earth Management, Inc., applied to EPD for a permit to construct and operate a landfill for hazardous waste disposal in Heard County. That application is now pending before EPD. The plaintiffs seek a declaratory judgment that the Georgia Hazardous Waste Management Act, OCGA § 12-8-60 et seq. (Code Ann. § 43-2901 et seq.), and the rules promulgated thereunder, pursuant to which the permit at issue would be reviewed, are unconstitutional. The plaintiffs also seek to enjoin the defendants *492 from taking any further action with regard to the permit application. The trial court dismissed the complaint.
The state concedes that the plaintiffs in this case have standing to participate in the administrative process. See OCGA §§ 12-8-66 (h), 12-8-73, 12-2-2 (c) (2) (Code Ann. §§ 43-2907, 43-2914, 40-3519, 40-35162). Because of the availability of an administrative procedure, this case is controlled by Flint River Mills v. Henry, 234 Ga. 385, 386-87 (216 SE2d 895) (1975), where this court held: "We recognize that where the constitutional validity of a statute is challenged before an administrative hearing officer or board, such officer or board is powerless to declare the Act unconstitutional, and resolution of the constitutional question must await judicial review on appeal. Thus the making of such constitutional challenge before the hearing officer or board appears futile at the time of its making.
"However, we view with grave concern the possible disruption of administrative procedures if courts, including this court on appeal, commence exercising jurisdiction to enjoin administrative proceedings already in progress and to issue declaratory judgments as to decisions about to be made by administrative tribunals.
"The decisions of this court hold that where a statute provides a party with a means of review by an administrative agency, such procedure is generally an adequate remedy at law so as to preclude the grant of equitable relief. Bishop v. Bussey, 164 Ga. 642 (2) (139 S.E. 212); Guice v. Pope, 229 Ga. 136 (189 SE2d 424).
"Other decisions hold that an action for declaratory judgment will not be entertained where the rights of the parties have already accrued and the plaintiff faces no risk of taking future undirected action. Salomon v. Central of Georgia R. Co., 220 Ga. 671, 672 (141 SE2d 424); Holcomb v. Bivens, 103 Ga. App. 86 (118 SE2d 840), and cases cited. This rule is particularly applicable where the rights of the parties have accrued and those rights are actually in the process of being adjudicated by another tribunal. In our view, courts should not render advisory opinions (declaratory judgments) to administrative tribunals as such tribunals proceed, step by step, to perform their administrative function."
Flint River Mills v. Henry, supra, was followed in Brogdon v. State Bd. of Veterinary Medicine, 244 Ga. 780, 781 (262 SE2d 56) (1979), where we reiterated that "Where a statute provides a party with a means of review by an administrative agency, such procedure is generally an adequate remedy at law so as to preclude the grant of equitable relief."
Plaintiffs rely upon OCGA § 9-4-2 (Code Ann. § 110-1101), particularly paragraph (c), as affording them the right to sue for declaratory judgment notwithstanding the pendency of the administrative *493 proceeding. If we were to adopt this argument, then all questions pending before administrative tribunals could be decided by the courts in declaratory judgment actions and the beneficial purposes of administrative tribunals would be frustrated. See Bentley v. Chastain, 242 Ga. 348 (1) (249 SE2d 38) (1978).
In Shippen v. Folsom, 200 Ga. 58 (5) (35 SE2d 915) (1945), this court noted that courts should not render declaratory judgments where other statutory remedies have been specifically provided, if the effect would be to interfere with the rights of the parties under the special statutory remedy. Shippen v. Folsom, supra, has been followed since the 1959 amendment to our declaratory judgment law. Ga. L. 1959, p. 236. Pinkard v. Mendel, 216 Ga. 487 (3) (117 SE2d 336) (1960). Hence, OCGA § 9-4-2 (Code Ann. § 110-1101) does not entitle plaintiffs to relief.
Plaintiffs urge that OCGA § 50-13-10 (Code Ann. § 3A-111) authorizes them to obtain declaratory judgment as to the validity of the rules enacted pursuant to the Hazardous Waste Management Act, supra. OCGA § 50-13-10 (Code Ann. § 3A-111) is not applicable here because plaintiffs' contention is that the Act is unconstitutional and hence the rules promulgated thereunder are unconstitutional. The case of Pope v. Cokinos, 231 Ga. 79 (2) (200 SE2d 275) (1973), relied upon by plaintiffs, is therefore inapplicable here because Cokinos attacked only the rules of the Department of Public Safety. OCGA § 50-13-10 (Code Ann. § 3A-111) does not entitle plaintiffs to relief.
Plaintiffs rely upon Cravey v. Southeastern Underwriters, 214 Ga. 450 (105 SE2d 497) (1958), for the proposition that they have the right to enjoin an administrative proceeding where the administrator lacks jurisdiction or power to act. In Cravey, the administrator, without a hearing, suspended a rate increase he previously had approved and which had gone into effect. The aid of equity was necessary to protect the insurance companies from loss of revenue pending the administrative hearing. Similarly, Pope v. Cokinos, supra, involved the suspension of plaintiff's driver's license. No emergency situation requiring equitable relief such as was present in Cravey and Pope, supra, is present here.
For the foregoing reasons, we affirm the dismissal of the complaint.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333395/ | 505 S.E.2d 177 (1998)
Tommy CARTER and Tracy Carter, Administrator of the Estate of Phyllis Carter, Plaintiffs,
v.
Anthony G. HUCKS-FOLLISS; Pinehurst Surgical Clinic, P.A.; and Moore Regional Hospital, Inc., Defendants.
No. COA97-1530.
Court of Appeals of North Carolina.
October 6, 1998.
The McLeod Law Firm, P.A. by Joe McLeod and William W. Aycock, Jr., Fayetteville, for plaintiffs-appellants.
Smith Helms Mulliss & Moore, L.L.P. by Samuel O. Southern, Matthew W. Sawchak, *178 and Christine Nero Coughlin, Raleigh, for defendants-appellees.
GREENE, Judge.
Tommy and Tracy Carter (collectively, Plaintiffs) appeal from the granting of Moore Regional Hospital's (Defendant) motion for summary judgment entered 26 June 1997.
On 20 August 1993, Dr. Anthony Hucks-Folliss (Dr. Hucks-Folliss) performed neck surgery on plaintiff Tommy Carter at Defendant. Dr. Hucks-Folliss is a neurosurgeon on the medical staff of Defendant. He first was granted surgical privileges by Defendant in 1975, and has been reviewed every two years hence to renew those privileges. Though he has been on Defendant's staff for over twenty years, Dr. Hucks-Folliss never has been certified by the American Board of Neurological Surgery. Presently, Dr. Hucks-Folliss is ineligible for board certification because he has taken and failed the certification examination on three different occasions.
The credentialing and re-credentialing of physicians at Defendant is designed to comply with standards promulgated by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO). In 1992, the time when Dr. Hucks-Folliss was last re-credentialed by Defendant prior to the neck surgery performed on Tommy Carter, the JCAHO provided that board certification "is an excellent benchmark and is [to be] considered when delineating clinical privileges."
On the application filed by Dr. Hucks-Folliss, seeking to renew his surgical privileges with Defendant, he specifically stated, in response to a question on the application, that he was not board certified. Dr. James Barnes (Dr. Barnes), one of Plaintiffs' experts, presented an affidavit wherein he states that Defendant "does not appear [to have] ever considered the fact that Dr. Hucks-Folliss was not board certified, or that he had failed board exams three times," when renewing Dr. Hucks-Folliss's surgical privileges. Jean Hill (Ms. Hill), the manager of Medical Staff Services for Defendant, stated in her deposition that board certification was not an issue in the re-credentialing of active staff physicians. There is no dispute that Dr. Hucks-Folliss was on active staff in 1992. Additionally, this record does not reveal any further inquiry by Defendant into Dr. Hucks-Folliss's board certification status (beyond the question on the application).
In the complaint, it is alleged that Defendant was negligent: (1) in granting clinical privileges to Dr. Hucks-Folliss; (2) in failing to ascertain whether Dr. Hucks-Folliss was qualified to perform neurological surgery; and (3) in failing to enforce the standards of the JCAHO. It is further alleged that as a proximate result of Defendant's negligence, Tommy Carter agreed to allow Dr. Hucks-Folliss to perform surgery on him in Defendant. As a consequence of that surgery, Tommy Carter sustained "serious, permanent and painful injuries to his person including quadraparesis, scarring and other disfigurement."
The issue is whether a genuine issue of fact is presented on this record as to the negligence of Defendant in re-credentialing Dr. Hucks-Folliss.
Hospitals owe a duty of care to its patients to ascertain that a physician is qualified to perform surgery before granting that physician the privilege of conducting surgery in that hospital. Blanton v. Moses H. Cone Hosp., 319 N.C. 372, 376, 354 S.E.2d 455, 458 (1987). In determining whether a hospital, accredited by the JCAHO, has breached its duty of care in ascertaining the qualifications of the physician to practice in the hospital, it is appropriate to consider whether the hospital has complied with standards promulgated by the JCAHO. Failure to comply with these standards "is some evidence of negligence." Id.
In this case, Defendant has agreed to be bound by the standards promulgated by JCAHO and those standards provided in part that board certification was a factor to be "considered" when determining hospital privileges. Defendant argues that the evidence reveals unequivocally that it "considered," in re-credentialing Dr. Hucks-Folliss, the fact that he was not board certified. It points to the application submitted by Dr. Hucks-Folliss, *179 specifically stating that he was not board certified, to support this argument. We disagree. Although this evidence does reveal that Defendant was aware of Dr. Hucks-Folliss's lack of certification, it does not follow that his lack of certification was considered as a factor in the re-credentialing decision. In any event, there is evidence from Dr. Barnes and Ms. Hill that supports a finding that Defendant did not consider Dr. Hucks-Folliss's lack of certification, or his failure to pass the certification test on three occasions, in assessing his qualifications to practice medicine in the hospital. This evidence presents a genuine issue of material fact and thus precludes the issuance of a summary judgment. See Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985).
We also reject the alternative argument of Defendant that summary judgment is proper because there is no evidence that any breach of duty (in failing to consider Dr. Hucks-Folliss's lack of board certification prior to re-credentialing) by it was a proximate cause of the injuries sustained by Tommy Carter. Genuine issues of material fact are raised on this point as well. See Green v. Tile Co., 263 N.C. 503, 505, 139 S.E.2d 538, 540 (1965) (defining proximate cause).
Reversed and remanded.
TIMMONS-GOODSON and SMITH, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333277/ | 505 S.E.2d 277 (1998)
349 N.C. 118
STATE of North Carolina
v.
Robbie Dexter LOCKLEAR.
No. 235A96.
Supreme Court of North Carolina.
October 9, 1998.
*285 Michael F. Easley, Attorney General by David F. Hoke, Assistant Attorney General, for the State.
William L. Davis, III, Lumberton, for defendant-appellant.
FRYE, Justice.
Defendant was indicted by a Robeson County grand jury for the first-degree murder of James Charles Taylor. He was tried capitally, and the jury returned a verdict of guilty of first-degree murder. In a capital sentencing proceeding conducted pursuant to N.C.G.S. § 15A-2000, the jury found as an aggravating circumstance that defendant had previously been convicted of a felony involving the use of violence to the person. No juror found any mitigating circumstance. The jury recommended and the trial court imposed a sentence of death. For the reasons discussed herein, we conclude that defendant's trial and capital sentencing proceeding were free of prejudicial error and that the death sentence is not disproportionate. Accordingly, we uphold defendant's conviction of first-degree murder and sentence of death.
The State's evidence presented at trial tended to show the following facts and circumstances. On 27 January 1994, defendant and the victim, James Charles "Jay" Taylor, were living in the same mobile home in Robeson County. Also living in the home were defendant's mother, Angelina Locklear Taylor, who was the victim's wife; defendant's stepbrother, James Reed "J.R." Taylor, who was the victim's son; and defendant's uncle, James B. Locklear, Jr. That evening, defendant and his stepbrother were inside the bedroom they shared in the home. According to defendant's statement, Jay Taylor came into the room and began "raising hell" with defendant. Taylor invited defendant outside, and a fight ensued. Defendant was "getting the best of him," and Taylor stopped. Taylor moved toward an outside storage shed, telling defendant, "I will be right back you son of a bitch."
Defendant reentered the mobile home, got a twelve-gauge shotgun and shells, and returned outside. Taylor was standing in front of the storage shed, and defendant shot him in the back from a distance of approximately three to eight feet. Defendant reloaded the shotgun and shot Taylor in the neck as he was lying on the ground, then reloaded and fired a third time, missing the victim. Taylor died as a result of the two gunshot wounds inflicted by defendant.
Defendant had been drinking beer and liquor during the day of the shooting. An autopsy showed that the victim had a blood-alcohol level of .02, the equivalent of approximately half a beer.
After the shooting, defendant again entered the mobile home and told his uncle, "You better go check on your brother-in-law." Defendant told his uncle that he had shot Taylor because Taylor "said he was an S.O.B. and his mother was, too." Defendant then went across the street and told his aunt, Vera Lindsey, what he had done. Defendant ran down the road, where he was found by his cousin, James Belton Locklear, about a mile away. Locklear drove defendant back to the scene and summoned police. After being advised of his rights and waiving them, defendant voluntarily gave a statement to Detective Randal Patterson of the Robeson County Sheriff's Department in which he *286 admitted shooting Taylor. Defendant's statement was published to the jury.
The trial court denied defendant's motion to dismiss made at the close of the State's evidence.
Defendant did not testify but did present evidence at trial. J.R. Taylor, the victim's son, testified that his father came into the bedroom he shared with defendant and asked him to go into another room. J.R. heard loud talking and a few minutes later he heard a shot, but did not think anything of it because target shooting was common in the neighborhood. Two of defendant's relatives testified that the victim kept one or more guns in the shed or outbuilding behind the mobile home. Mrs. Taylor, defendant's mother, testified that a week after her husband's death, she found a rifle while cleaning out the shed. She also testified that when she saw defendant at the jail on the night of the shooting he was upset and crying.
At defendant's capital sentencing proceeding, the State presented evidence of defendant's prior conviction for assault with a deadly weapon inflicting serious injury in support of the sole aggravating circumstance submitted to the jury, that defendant had been previously convicted of a felony involving the use of violence to the person. N.C.G.S. § 15A-2000(e)(3) (1988) (amended 1994).
Defendant's evidence during the sentencing phase tended to show the following: Defendant's mother had abused alcohol before and during her pregnancy. There was evidence that defendant suffered from Fetal Alcohol Syndrome. Defendant was an illegitimate child who had no contact with his father. Defendant was cared for by his grandmother from an early age because his mother continued to drink heavily. He was close to his grandmother and cared for her during her final illness, until she died when defendant was approximately nine years old.
There was expert testimony that defendant had an IQ of 76, which placed him in the borderline range of intellectual functioning. Defendant had always been small for his age and was "slow" in school. He had been retained in school and, as a teenager, had dropped out. Defendant also began to abuse alcohol as a teenager. He suffered from impulsive behavior and feelings of insecurity, inadequacy, and dependency, in part because of the effects of his exposure to alcohol before birth. At the time of the shooting, defendant was intoxicated from alcohol, Valium, and marijuana.
The jury considered twenty-one mitigating circumstances based on this evidence and the catchall mitigating circumstance. No juror found any mitigating circumstance to exist. The jury unanimously recommended, and the trial court imposed, a sentence of death.
Defendant appeals to this Court as of right from the sentence of death and presents thirty issues based on seventy-three assignments of error.
Defendant first contends that the trial court erred by arraigning him in violation of the procedures mandated by N.C.G.S. § 7A-49.3. Defendant was arraigned on 22 April 1996, at a Mixed Session of Superior Court, Robeson County, one week before he was scheduled for trial. On the day of the hearing, defendant objected on the grounds that his arraignment was not on a calendar published for that session. The trial court continued the proceeding until later in the day, and in the meantime, a calendar containing defendant's arraignment was published. Defendant contends that his constitutional right to due process was violated because the arraignment was scheduled pursuant to an ex parte communication between the trial court and the prosecutor, because he was not given proper notice of the arraignment, and because he was denied the full statutorily required time to file pretrial motions. We reject these contentions.
First, defendant's allegation of an ex parte communication between the trial court and the prosecutor implies that his constitutional right to presence was violated in some manner. At most, the record indicates that the prosecutor requested a hearing on an arraignment. While it is well settled that a defendant has an unwaivable right to be present at every stage of his capital trial, see State v. Payne, 320 N.C. 138, 139, 357 S.E.2d 612, 612 (1987), a defendant does not *287 have a right to be present when the State makes a routine communication with the court, prior to trial, concerning a scheduling matter. Assuming the State requested a hearing on arraignment outside of defendant's presence, this communication occurred prior to trial and did not constitute a stage of his capital trial. Cf. State v. Buckner, 342 N.C. 198, 228, 464 S.E.2d 414, 431 (1995) (no error where conference between trial judge and counsel was held without defendant's presence prior to commencement of trial), cert. denied, ___ U.S. ___, 117 S.Ct. 91, 136 L.Ed.2d 47 (1996).
Second, defendant's right to due process was in no way impaired by a lack of notice, if any, that the arraignment was to be held on 22 April 1996. An arraignment is "a proceeding whereby a defendant is brought before a judge having jurisdiction to try the offense so that the defendant may be formally apprised of the charges pending against him and directed to plead to them." State v. Smith, 300 N.C. 71, 73, 265 S.E.2d 164, 166 (1980); see N.C.G.S. § 15A-941 (1997). It is clear from the record that defendant was fully aware of the charge against him, and he entered a plea of not guilty to first-degree murder at the arraignment. Further, defendant was not prevented, by the holding of his arraignment on this date, from filing pretrial motions. The trial court eliminated any possibility of prejudice by allowing defendant additional time to file his remaining pretrial motions.
Finally, defendant's contention that the State violated N.C.G.S. § 15A-943, thereby prejudicing him, is also meritless. Defendant was arraigned on 22 April 1996, and his trial began on 29 April 1996. This Court has determined that a defendant's interest in N.C.G.S. § 15A-943 arises under subsection (b), which provides that a defendant may not be tried without his consent in the same week in which he is arraigned. State v. Richardson, 308 N.C. 470, 482, 302 S.E.2d 799, 806 (1983); State v. Shook, 293 N.C. 315, 319, 237 S.E.2d 843, 846 (1977). Thus, defendant's "only interest is in his vested right to a week's interval between his arraignment and trial." Richardson, 308 N.C. at 483, 302 S.E.2d at 807. Assuming, arguendo, that the State violated N.C.G.S. § 15A-943(a) by publishing the calendar for defendant's arraignment on the same day the arraignment was held, there is no reversible error because defendant nonetheless had a full week's interval between arraignment and trial. Id. at 482-83, 302 S.E.2d at 806-07.
We next examine defendant's assignments of error pertaining to the jury selection process. Defendant first argues that the trial court erred by allowing the prosecution to peremptorily excuse black and Native American prospective jurors on the basis of race. The use of peremptory challenges for racially discriminatory reasons violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The North Carolina Constitution, Article I, Section 26, also prohibits the exercise of peremptory strikes solely on the basis of race. See State v. Ross, 338 N.C. 280, 284, 449 S.E.2d 556, 560 (1994).
Upon making an objection under Batson, a defendant must first make out a prima facie case of racial discrimination, which he may do by showing: "(1) he is a member of a cognizable racial minority, (2) members of his racial group have been peremptorily excused, and (3) racial discrimination appears to have been the motivation for the challenges." State v. Porter, 326 N.C. 489, 497, 391 S.E.2d 144, 150 (1990). Defendant is a Native American. We recognize that "[w]here defendant is an American Indian, people of this heritage are a racial group cognizable for Batson purposes." Id. at 499, 391 S.E.2d at 151. However, a defendant also has standing to complain that a prosecutor has used the State's peremptory challenges in a racially discriminatory manner even if there is not racial identity between the defendant and the challenged juror. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991); see also State v. Beach, 333 N.C. 733, 430 S.E.2d 248 (1993). Thus, defendant, although Native American, is not prohibited from challenging the excusal of black prospective jurors on the basis of race.
*288 If a defendant succeeds in making a prima facie showing of discrimination, the burden shifts to the State to come forward with a race-neutral reason for each challenged peremptory strike. State v. Robinson, 330 N.C. 1, 16, 409 S.E.2d 288, 296 (1991). The rebuttal must be clear, reasonably specific, and related to the particular case to be tried, but "`need not rise to the level justifying exercise of a challenge for cause.'" State v. Robinson, 336 N.C. 78, 93, 443 S.E.2d 306, 312 (1994) (quoting Batson, 476 U.S. at 97, 106 S.Ct. at 1723, 90 L.Ed.2d at 88), cert. denied, 513 U.S. 1089, 115 S.Ct. 750, 130 L.Ed.2d 650 (1995). A defendant is then entitled to present evidence to show that the prosecutor's explanations are a pretext. State v. Gaines, 345 N.C. 647, 668, 483 S.E.2d 396, 408, cert. denied, ___ U.S. ___, 118 S.Ct. 248, 139 L.E.2d. 177 (1997).
Where the trial court rules that a defendant has failed to make a prima facie showing, our review is limited to whether the trial court erred in finding that the defendant failed to make a prima facie showing, even if the State offers reasons for its exercise of the peremptory challenges. State v. Hoffman, 348 N.C. 548, 554, 500 S.E.2d 718, 722-23 (1998); State v. Williams, 343 N.C. 345, 359, 471 S.E.2d 379, 386-87 (1996), cert. denied, ___ U.S. ___, 117 S.Ct. 695, 136 L.Ed.2d 618 (1997). On the other hand, where the trial court rules that a defendant has made an initial prima facie showing of discrimination, it is the responsibility of the trial court to make appropriate findings as to whether the prosecution's stated reasons are a credible, nondiscriminatory basis for the challenges or simply pretext. Then the issue before this Court is whether the trial court properly determined whether or not the defendant had proven purposeful discrimination. "Because the trial court is in the best position to assess the prosecutor's credibility, we will not overturn its determination absent clear error." State v. Cummings, 346 N.C. 291, 309, 488 S.E.2d 550, 561 (1997), cert. denied, ___ U.S. ___, 118 S.Ct. 886, 139 L.Ed.2d 873 (1998).
In this case, prospective jurors self-reported their race by so indicating in a space on the printed juror questionnaire. Defendant's first Batson objection came when the prosecutor peremptorily challenged prospective juror James Love, an African-American male. In support of this objection, defendant pointed out that Mr. Love had given the same answers to questions concerning the death penalty as white prospective jurors and that the State had already peremptorily challenged another minority prospective juror, Mary Brooks, a Native American female. The trial court noted that the first juror seated was a black juror and that there were no other peremptory challenges against black jurors. The trial court ruled that defendant had not yet made a prima facie case and allowed the State's challenge of Mr. Love.
Defendant next objected when prospective juror Diana Locklear was challenged by the prosecutor. Although defendant initially indicated that he did not care to be heard, after the trial court inquired, defendant stated that the prosecutor was using the peremptory challenges "on minorities," mentioning the earlier excusals of Ms. Brooks and Mr. Love, and argued again that white jurors who had answered questions concerning the death penalty in a similar fashion had been passed. The trial court then ruled:
[A]t this point ... [t]here were only two Indian jurors removed peremptorily by the State. One, two, three, fourit appears out of nine jurors, the State has passed, let's see, one, two, three, four Indian jurors. Out of nine selected, four have been Indians.
I do not see that you've made out a prima facie case yet. However, you may continue to renew your motion.
We note that while it appears from the transcript of this particular exchange that both the trial court and defense counsel presumed prospective juror Locklear to be Native American, her self-reported race, indicated on the juror questionnaire, was white.
Jury voir dire continued, and the prosecutor exercised another peremptory challenge against an African-American prospective juror, Jimmy Cummings. Defendant again raised a Batson objection. The trial court said, "I understand," and confirmed the race reported on the juror's questionnaire. To this point in the jury voir dire, *289 forty-seven venire members had been questioned; nine had been seated, including one black, four Native Americans, and four whites. Five blacks had been excused for cause, and Mr. Cummings' excusal made the second peremptory challenge of a black prospective juror by the State. In addition, the State had exercised peremptory challenges against two Native American prospective jurors. While the trial court did not explicitly rule at this point that defendant had failed to make a prima facie showing of discrimination so as to require the State to come forward with reasons for the challenge, we believe it is clear from the record that this was the trial court's decision. Defendant having made no other showing to support his Batson objection, we cannot say that the trial court erred in allowing the challenge and continuing with jury voir dire.
The State's next peremptory challenge was to Lisa Locklear, a Native American female. After defendant's objection, the trial court said, "I understand the objection. We'll deal with all of this later," and excused Ms. Locklear. Through the remainder of the jury selection, the State exercised four more peremptory challengesagainst two white jurors, a Native American juror, and a black juror. Defendant did not raise Batson objections to any of these challenges. After a jury of twelve and two alternates was seated, with a racial makeup of seven Indian, two black, and five white jurors, the trial court revisited the "ongoing Batson motion of the defendant."
The trial court first considered defendant's contention that Native American prospective jurors had been excused in a racially discriminatory manner. Noting that the State had "passed seven jurors of the Indian race and struck three," the trial court nonetheless found that defendant had made a prima facie case of discrimination as to the three challenged Native American jurors: Mary Brooks, Lisa Locklear, and Connie Hester. The State gave the following reasons why these prospective jurors were excused.
[PROSECUTOR]: As to Hester, family history. As to Lisa Locklear, marijuana conviction and her attitude, smiling and laughing during the time we were asking the questions. As toI'm not sure what Brooks' first name is. I can't read that. Indian female. She was undecided about the death penalty and wavered when I asked her the questions.
Defendant was given an opportunity to give a rebuttal and responded as follows.
[DEFENSE COUNSEL]: Your Honor, in rebuttal to that I would point out to the Court that several white jurors indicated that they had beenprior convictions for drugs and for DWIs and other charges and the State passed them. Particularly, I remember Rodger Britt had DWI and marijuana charges. Some of the other jurors had DWI charges. James Lewis had several DWI charges. And the State passed them despite those prior convictions.
The trial court found that the State had tendered racially neutral explanations. We hold that this was not error.
After carefully reviewing the transcripts of jury voir dire, we find that the reasons articulated by the prosecutor are supported by the record. Prospective juror Hester indicated that she had four relatives who were currently or had been in jail or prison. Ms. Locklear admitted to pleading guilty to possession of marijuana. Ms. Brooks, after extensive questioning, expressed her opposition to the death penalty but also indicated that she might be able to set aside her beliefs. The State exercised its peremptory challenge of Ms. Brooks after the trial court had twice denied a challenge for cause. A juror's reservations "concerning his or her ability to impose the death penalty constitute a racially neutral basis for exercising a peremptory challenge." Cummings, 346 N.C. at 310, 488 S.E.2d at 561.
Defendant's only rebuttal was that the State had passed several white jurors despite drug and DWI convictions, in apparent response to the prosecutor's reasons for excusing Ms. Locklear. We have previously rejected a defendant's attempt to show discriminatory intent by "finding a single factor among the several articulated by the prosecutor... and matching it to a passed juror who exhibited that same factor." Porter, 326 N.C. at 501, 391 S.E.2d at 152; see also State v. Kandies, *290 342 N.C. 419, 435-36, 467 S.E.2d 67, 75-76, cert. denied, ___ U.S. ___, 117 S.Ct. 237, 136 L.Ed.2d 167 (1996). In this case, the prosecutor pointed to Ms. Locklear's demeanor as well as her prior drug conviction as the basis for the challenge.
The ultimate burden of persuasion in a Batson claim is on the defendant. Porter, 326 N.C. at 497-98, 391 S.E.2d at 150. On review, deference is given to the trial court's findings as to the State's given reasons for the challenges. Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 1869, 114 L.Ed.2d 395, 409 (1991); see also State v. Floyd, 343 N.C. 101, 105, 468 S.E.2d 46, 48, cert. denied, ___ U.S. ___, 117 S.Ct. 241, 136 L.Ed.2d 170 (1996). Given the prosecutor's articulation of racially neutral reasons for challenging prospective jurors Hester, Locklear, and Brooks, which are supported by the record, and given defendant's inadequate rebuttal, we cannot conclude that the trial court erred in denying defendant's Batson claim as to these three jurors.
The trial court then inquired into defendant's Batson challenge to the excusal of two black prospective jurors, Mr. Cummings and Mr. Love. The court noted that these prospective jurors were not of the same race as defendant. However, defendant asserted that they were members of a minority race who were asked the same questions, and gave the same responses, as white jurors who were passed by the State. The trial court found that defendant had not made a prima facie case as to the exclusion of these two jurors. We hold that this was not error.
As noted above, defendant's standing to assert a Batson claim is not impaired by the fact that he is of a different race than the challenged jurors. However, the race of a defendant, as well as the race of the victim and key witnesses, is a relevant circumstance that the trial court may consider when determining whether defendant has raised an inference of purposeful discrimination sufficient to make a prima facie case upon a Batson motion. State v. Smith, 328 N.C. 99, 120, 400 S.E.2d 712, 724 (1991). Furthermore, although the basis for defendant's Batson motion was that prospective minority jurors were challenged while white jurors who gave similar answers were passed, this Court has held that disparate treatment of prospective jurors is not necessarily dispositive of discriminatory intent. Floyd, 343 N.C. at 105-06, 468 S.E.2d at 48-49. We conclude that the trial court's finding that defendant failed to make a prima facie showing of discrimination as to the State's challenges of Mr. Cummings and Mr. Love was not clearly erroneous.
In his brief to this Court, defendant also argues that it was a violation of the Equal Protection Clause for the trial court to consider his Batson motion separately as to challenged Native American and African-American prospective jurors and that the trial court erred by placing undue emphasis on the fact that some minority jurors were seated. We reject both contentions.
As previously stated, discriminatory use of peremptory challenges on the basis of race is forbidden regardless of the respective races of the defendant and of the challenged jurors. See Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411; cf. Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (holding that racially discriminatory use of peremptory challenges by a criminal defendant is also prohibited). However, we note that "[r]acial identity between the defendant and the excused person might in some cases be the explanation for the prosecution's adoption of the forbidden stereotype," Powers, 499 U.S. at 416, 111 S.Ct. at 1373, 113 L.Ed.2d at 429, and racial identity between defendant and some of the challenged jurors in this case was a legitimate factor for the trial court to consider in ruling on defendant's Batson motion. Likewise, the fact that defendant and the challenged black jurors were of different races was a relevant circumstance which the trial court was entitled to weigh. We therefore cannot conclude that the trial court erred in considering defendant's Batson challenges separately.
Finally, while the excusal of even a single juror for a racially discriminatory reason is impermissible, see State v. Robbins, 319 N.C. 465, 491, 356 S.E.2d 279, 295, cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 *291 L.Ed.2d 226 (1987), the trial court may consider the acceptance rate of minority jurors by the State as evidence bearing on alleged discriminatory intent, Smith, 328 N.C. at 121, 400 S.E.2d at 724. We reject defendant's contention that the trial court unduly emphasized this factor. For the foregoing reasons, we conclude that there was no violation of defendant's right, under either the state or federal Constitution, to a jury selected in a racially nondiscriminatory manner.
Defendant next contends that the trial court improperly limited voir dire of several prospective jurors in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 18 and 19 of the North Carolina Constitution. It is well established that while counsel are allowed wide latitude in examining jurors on voir dire, the extent and manner of the inquiry rests within the trial court's discretion. State v. Parks, 324 N.C. 420, 423, 378 S.E.2d 785, 787 (1989). The trial court's decisions regarding the extent and manner of voir dire questioning will not be disturbed absent an abuse of discretion. State v. Jaynes, 342 N.C. 249, 266, 464 S.E.2d 448, 459 (1995), cert. denied, 518 U.S. 1024, 116 S.Ct. 2563, 135 L.Ed.2d 1080 (1996).
Defendant argues that he was prevented from questioning prospective jurors concerning the credibility of law enforcement officers and the weight jurors would give their testimony. However, the record reveals that the trial court gave defendant ample opportunity to inquire into jurors' potential bias in favor of law enforcement. The court sustained objections to hypothetical or confusing questions, but allowed defense counsel opportunity to rephrase the questions. We find no abuse of discretion on the part of the trial court.
Defendant also argues that the trial court limited voir dire concerning whether jurors would automatically vote for the death penalty, in violation of Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Again, a careful examination of the transcript does not bear out defendant's contention. Defendant was permitted to pursue this line of inquiry, albeit with direction from the trial court to rephrase certain questions. We find no abuse of the trial court's discretion on this point. Defendant also argues that the trial court committed error by limiting voir dire on prospective jurors' ability to consider mitigating evidence and to follow the court's instructions. These contentions are without merit. There is no indication that the trial court abused its discretion during jury voir dire, and defendant shows no prejudice from any alleged improper ruling.
Finally, defendant argues that the trial court improperly allowed the prosecutor's for-cause challenges to excuse certain prospective jurors based on their responses to questions concerning capital punishment. Whether a prospective juror may be excused for cause because of his or her views on capital punishment depends upon whether those views will "prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and his oath." Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841, 851-52 (1985); see also State v. Flippen, 344 N.C. 689, 697, 477 S.E.2d 158, 163 (1996). Prospective jurors may also be properly excused for cause if they are unable to "`state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.'" State v. Brogden, 334 N.C. 39, 43, 430 S.E.2d 905, 908 (1993) (quoting Lockhart v. McCree, 476 U.S. 162, 176, 106 S.Ct. 1758, 1766, 90 L.Ed.2d 137, 149-50 (1986)). We have consistently accorded deference to a trial court's judgment concerning a prospective juror's ability to impartially follow the law. See, e.g., id.
Defendant does not identify any specific contention of error as to a particular juror. However, of the thirty-one jurors listed by defendant as improperly excused for cause, two were in fact peremptorily challenged, and another was excused for cause with the approval of defendant. A careful examination of the record reveals that none of the remaining twenty-eight was able to state clearly that he or she could set aside personal opposition to the death penalty and render a verdict in accordance with the law *292 and the evidence in the case. Accordingly, we reject this assignment of error.
Defendant also contends that the trial court improperly overruled defendant's challenge for cause of a prospective juror based on the juror's inability to be impartial in weighing the credibility of law enforcement officers. The record reveals that the venire member in question was in fact ultimately dismissed for cause; thus, this contention is without merit.
By his next four assignments of error, defendant alleges that the trial judge improperly and prejudicially conveyed an opinion by his conduct and participation in the voir dire of prospective jurors, by his examination of witnesses, by his nonverbal conduct, and by his comments on the evidence and witnesses. These allegations are not supported by the record.
It is indisputable that every person charged with a crime is "entitled to a trial before an impartial judge and an unprejudiced jury in an atmosphere of judicial calm." State v. Carter, 233 N.C. 581, 583, 65 S.E.2d 9, 10 (1951). The relevant statute directs that a "judge may not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury." N.C.G.S. § 15A-1222 (1997) (emphasis added).
The bare possibility, however, that an accused may have suffered prejudice from the conduct or language of the judge is not sufficient to overthrow an adverse verdict. The criterion for determining whether or not the trial judge deprived an accused of his right to a fair trial by improper comments or remarks in the hearing of the jury is the probable effect of the language upon the jury. In applying this test, the utterance of the judge is to be considered in the light of the circumstances under which it was made.
Carter, 233 N.C. at 583, 65 S.E.2d at 10-11 (citations omitted).
Defendant contends that the judge cast aspersions on defense counsel during jury voir dire which diminished the effectiveness of the defense in the eyes of the jury. However, we find nothing in those portions of the record to which defendant points that suggests the trial judge's comments or questions improperly influenced jurors or disparaged defense counsel. Furthermore, because prospective jurors were examined individually, no possible prejudicial impact on the jury could have occurred as a result of the judge's remarks to defense counsel during the questioning of persons who were ultimately excused.
Defendant also contends that the court's participation in the trial, by questioning and by conduct, was improper. Defendant points first to an exchange between the trial court and defense counsel concerning the relevance of a line of questioning being pursued by defendant. The trial court was unwilling to allow defendant to question a witness about the possible existence of guns in the shed located near the shooting when there was no record evidence that defendant in fact knew that the victim kept weapons in the shed and no proffered evidence of self-defense. The scope and manner of examination of witnesses are matters ordinarily governed by the trial judge, who may take appropriate measures to restrict improper questioning by counsel. State v. Searles, 304 N.C. 149, 157, 282 S.E.2d 430, 435 (1981). The trial judge in this instance conducted a proper inquiry into the relevance of defendant's line of questioning so as to prevent inadmissable evidence from being presented to the jury. Furthermore, the exchange took place outside the presence of the jury, the judge having sent the jurors from the courtroom prior to initiating the relevance inquiry. There was no error and no prejudicial effect on the jury.
Next, defendant points to the following remarks, made during the examination of defendant's mother, Mrs. Taylor:
Q. BY [DEFENSE COUNSEL]: What, if anything, happened to the weapon that you found in the shed?
[PROSECUTOR]: Object.
THE COURT: Sustained, without a foundation. Is it relevant anyway what happened to it, if there was a weapon? If anythingI don't know whether anything happened to it at this point.
*293 While a judge may never express an opinion upon the credibility of evidence or the merits of a case, State v. Lynch, 279 N.C. 1, 11, 181 S.E.2d 561, 567 (1971), in this situation, the trial court was merely remarking on the relevancy of the evidence. We cannot say that this query by the judge had the probable effect of improperly influencing the jury and thereby denying defendant his right to a fair trial.
Defendant points to instances during the sentencing phase where the judge allegedly commented on evidence, conducted an examination of a witness, and attempted to present evidence of an aggravating circumstance. In the first instance, the record shows that the trial court, outside the presence of the jury, acted upon defendant's objection to the State's attempt to offer a certified copy of defendant's criminal record rather than the judgment of a prior conviction. Defendant does not explain, and we fail to see, how this constitutes an improper comment on the evidence.
As to the second instance, the prosecutor was examining the officer who investigated the assault for which defendant had previously been convicted. The following testimony was elicited:
Q. Did you have an occasion to investigate an assault on a Donnie Wilkins?
A. Yes, sir, I did.
....
Q. Is Donnie Wilkins an individual that's confined to a wheelchair?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled. Go ahead.
THE WITNESS: Yes, sir, he was.
THE COURT: Do you mean at the time of the assault or some later time, Solicitor?
[PROSECUTOR]: No, sir. At the time of the assault, Your Honor.
THE COURT: All right.
We have held that a trial judge "may question a witness for the purpose of clarifying his testimony and promoting a better understanding of it." State v. Whittington, 318 N.C. 114, 125, 347 S.E.2d 403, 409 (1986); see also State v. Jackson, 306 N.C. 642, 651, 295 S.E.2d 383, 388 (1982). In this case, the judge did no more than interpose a clarifying question. We find no objectionable intimation of opinion as to the witness' credibility, defendant's culpability, or any factual controversy to be decided by the jury. See State v. Ramey, 318 N.C. 457, 465, 349 S.E.2d 566, 571 (1986). Therefore, we reject this contention.
Finally, defendant contends that the trial court "assisted and coaxed the prosecutor in presenting evidence, making objections to questions by the defense, and sustaining its own objections," and belittled defense counsel. Defendant points to an instance during the examination of defendant's uncle, R.D. Locklear, when the trial court inquired, "Well, nowis there an objection to all that?" When the prosecutor answered affirmatively, the trial court sustained the objection. Later, during cross-examination of this witness, the trial court asked whether defendant wished to continue his objection to a line of questioning. When defense counsel answered, "Your Honor, you overruled it," the judge answered, "Yeah, but we're getting into something else now. Do you object now?" Defendant did not object. These inquiries, made to attorneys for both sides as to their desire to object to potentially inadmissible testimony, do not constitute "coaxing the prosecutor in presenting evidence" or "making objections to questions by the defense." Neither do they indicate that the court was rude to or belittled defense counsel.
In sum, defendant has failed to show that any impermissible expression of opinion was made by the trial judge in the presence of the jury or that any conduct or statement by the judge improperly influenced the jury or prejudiced defendant in any manner. Accordingly, these assignments of error are rejected.
Based on six assignments of error, defendant's next argument concerns evidentiary rulings made by the trial court. Defendant asserts that the court committed reversible error by admitting, over his objection, evidence that was inadmissible, thereby violating his state and federal constitutional rights to due process of law, to a trial by an impartial *294 jury, and to be free from cruel and unusual punishment.
Defendant first contends that the trial court erred by allowing into evidence certain opinion testimony of Dr. Marvin Thompson, a medical expert in the field of forensic pathology, and SBI Agent Al Langley, an expert in firearms. Defendant stipulated to the qualification of both witnesses as experts. Langley conducted tests with the murder weapon to determine muzzle-to-target distances based on shotgun-pellet patterns. He testified in detail, without objection, about how these tests were conducted. The exhibits of the test results and his written report were then received into evidence, over defendant's objections. Defendant contends that the tests were inadmissible and prejudicial because the experiments were not conducted under circumstances sufficiently similar to the conditions at the time of the crime.
Experimental evidence is competent and admissible if the experiment is carried out under substantially similar circumstances to those which surrounded the original occurrence. State v. Jones, 287 N.C. 84, 97, 214 S.E.2d 24, 33 (1975); State v. Carter, 282 N.C. 297, 300, 192 S.E.2d 279, 281 (1972). The absence of exact similarity of conditions does not require exclusion of the evidence, but rather goes to its weight with the jury. Id. The trial court is generally afforded broad discretion in determining whether sufficient similarity of conditions has been shown. State v. Bondurant, 309 N.C. 674, 686, 309 S.E.2d 170, 178 (1983).
Agent Langley used the same twelve-gauge shotgun that fired the fatal shots and used ammunition consistent with that recovered at the scene of the shooting to re-create conditions similar to those that existed at the time of the murder. The purpose of the tests was to determine, based on the diameter of the shotgun-pellet pattern, the distance at which the gun was fired. Agent Langley was well qualified by his knowledge, training, and experience to conduct these tests and render an expert opinion as to the results. The trial court did not err in admitting this evidence.
Likewise, we find no error in the admission of Dr. Thompson's opinions. "It is undisputed that expert testimony is properly admissible when such testimony can assist the jury to draw certain inferences from facts because the expert is better qualified." State v. Bullard, 312 N.C. 129, 139, 322 S.E.2d 370, 376 (1984); see N.C.G.S. § 8C-1, Rule 702(a) (Supp.1997). Dr. Thompson testified that the shot pattern that corresponded with firing the shotgun from the three-foot range most closely matched the wound in the victim's back. He also rendered his expert medical opinion as to the effect on the body such a shot would have produced. Dr. Thompson performed the autopsy on the victim, examined and measured the wounds, and reviewed and measured the shotgun-pellet test patterns, allowing him to form an opinion as to which shot pattern most closely matched the gunshot wound in the victim's back. By giving his opinion based on his experience as a pathologist and his personal observation of the gunshot wounds, Dr. Thompson was undoubtedly in a position to assist the jury in determining the distance from which the fatal shots were fired. Dr. Thompson's testimony illustrating the effect such a shot would have had on the human body was likewise appropriate to assist the jury in understanding the evidence. The trial court did not err in overruling defendant's objection to this testimony.
Defendant also objected to Dr. Thompson's testifying that the victim's blood-alcohol level, the equivalent of .02 on a Breathalyzer test, would have been the result of the ingestion of approximately one-half of a beer. Dr. Thompson personally drew the blood sample from the victim during the autopsy and incorporated the results of the blood-alcohol test into the autopsy report. Dr. Thompson measured the victim's height and weight and noted that there was "a small amount of partially digested food" in the victim's stomach. Based on his training, knowledge, and experience as a pathologist, Dr. Thompson gave his opinion, to a reasonable medical certainty, of the amount of alcohol that was absorbed into the victim's bloodstream. Defendant points to no basis for his *295 assertion that Dr. Thompson, as a medical expert, was unqualified to draw this conclusion. The assignment of error based on Dr. Thompson's testimony is rejected.
Defendant next contends that the trial court committed reversible error by admitting the prior statement of defendant's uncle, James B. Locklear, Jr., given to police on the night of the shooting. At trial, the sole basis of defendant's objection to the prior statement's admission into evidence was that Locklear had not been impeached. On appeal, defendant now contends that the prior statement was inadmissible as corroborative evidence because it was inconsistent with Locklear's testimony at trial. We find no error.
After carefully examining both the testimony and the prior statement of James B. Locklear, Jr., we conclude that the prior statement was properly admitted as corroborative evidence. Locklear's prior statement was consistent with his testimony at trial and contained no significant additional facts. See Ramey, 318 N.C. at 469, 349 S.E.2d at 573; State v. Riddle, 316 N.C. 152, 156, 340 S.E.2d 75, 77 (1986). Furthermore, we note that the trial court gave proper limiting instructions, directing the jury to consider the evidence only for the purpose of corroboration.
Defendant also objected to an allegedly hearsay statement made by James B. Locklear, Jr., concerning the circumstances under which Locklear had come to live in the victim's home. During direct examination of the witness by the State, the following occurred:
Q. How is it you came to live there?
A. Me and my wife were separated, so I moved in with them.
Q. Did Mr. Taylor give his blessings to that?
[DEFENSE COUNSEL]: Objection.
THE WITNESS: Yes, sir.
It does not appear from the transcript that the trial court ruled on defendant's objection; nonetheless, the challenged testimony came in.
It is well settled that "`[t]he erroneous admission of hearsay, like the erroneous admission of other evidence, is not always so prejudicial as to require a new trial.'" State v. Abraham, 338 N.C. 315, 356, 451 S.E.2d 131, 153 (1994) (quoting Ramey, 318 N.C. at 470, 349 S.E.2d at 574). Defendant has the burden of showing error and that there was a reasonable possibility that a different result would have been reached at trial if such error had not occurred. N.C.G.S. § 15A-1443(a) (1997); see also State v. Sills, 311 N.C. 370, 378, 317 S.E.2d 379, 384 (1984).
Assuming, arguendo, that James Locklear's answer constituted inadmissible hearsay, we are not convinced that there is a reasonable possibility that a different result would have been reached at trial had this statement not been admitted. Thus, we find no prejudicial error.
Defendant next argues, by three assignments of error, that numerous evidentiary rulings of the trial court denied him the right to present a defense. "The right of a defendant charged with a criminal offense to present to the jury his version of the facts is a fundamental element of due process of law, guaranteed by the Sixth and Fourteenth Amendments to the federal Constitution and by Article I, Sections 19 and 23 of the North Carolina Constitution." State v. Miller, 344 N.C. 658, 673, 477 S.E.2d 915, 924 (1996). However, in this case, the record demonstrates no error in any ruling of the trial court cited by defendant.
Initially, we note no instance where the trial court erred or abused its discretion by excluding relevant, admissible evidence. With respect to instances of alleged erroneous exclusion of evidence, the record fails to show what the answer would have been had the witnesses been permitted to respond.
"It is well established that an exception to the exclusion of evidence cannot be sustained where the record fails to show what the witness' testimony would have been had he been permitted to testify." "[I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance *296 of the evidence is obvious from the record."
State v. Johnson, 340 N.C. 32, 49, 455 S.E.2d 644, 653 (1995) (quoting State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985)) (citations omitted); see N.C.G.S. § 8C-1, Rule 103 (1992). By failing to preserve evidence for review, defendant deprives the Court of the necessary record from which to ascertain if the alleged error is prejudicial. State v. Miller, 321 N.C. 445, 452, 364 S.E.2d 387, 391 (1988). Thus, in no instance where defendant alleges error based on the improper exclusion of evidence can he show that the ruling was prejudicial.
By his next assignment of error, defendant argues that the trial court committed reversible error by permitting the jury to take evidence into the jury room without defendant's consent and without allowing defendant the opportunity to object. The controlling statute is N.C.G.S. § 15A-1233, which provides that, upon a request by the jury to review evidence, the trial court must conduct all jurors into the courtroom and must exercise its discretion in determining whether to permit the requested evidence to be read to or examined by the jury. N.C.G.S. § 15A-1233(a) (1997); State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985). Additionally, "[u]pon request by the jury and with consent of all parties," the trial court may, in its discretion, "permit the jury to take to the jury room exhibits and writings which have been received in evidence." N.C.G.S. § 15A-1233(b).
During its deliberations in the guilt phase of the trial, the jury sent a note to the trial judge requesting to review two items: the testimony of defendant's uncle, James B. Locklear, Jr., and defendant's statement to police. The trial court, in accordance with the statutory requirement, summoned the jurors into the courtroom. As to the request to "review the testimony of James B. Locklear," the trial court ruled: "In my discretion, that is denied. It is the duty of the jurors to remember the testimony as it was given here in the courtroom." The trial court properly exercised its discretion on this point in conformance with the statute and applicable case law.
Next, the trial court granted the jury's request to take defendant's statement, State's Exhibit 28, into the jury room. While defendant claims as error that he was not given the opportunity to object to the submission of the exhibit to the jury, the record reveals no action by the trial court which prevented defendant from making such an objection or otherwise indicating his lack of consent. However, N.C.G.S. § 15A-1233(b) requires the consent of all parties, and while defendant did not object, neither did he give his consent. Assuming that this was error, however, we conclude it was harmless in this instance. See State v. Cunningham, 344 N.C. 341, 364, 474 S.E.2d 772, 783 (1996); see also State v. Wagner, 343 N.C. 250, 257-58, 470 S.E.2d 33, 37-38 (1996) (no prejudicial error where excerpt of defendant's statement was submitted for jury examination over defendant's objection); State v. Cannon, 341 N.C. 79, 83-86, 459 S.E.2d 238, 241-43 (1995) (no prejudicial error where crime-scene and autopsy photographs, defendant's confession, a witness' statement, and a diagram were taken into jury room over defendant's objection). Defendant makes no persuasive assertion of prejudice. His statement had previously been admitted into evidence; read to the jury in its entirety during the testimony of Detective Randal Patterson; and published, individually, to jurors as the State's rebuttal evidence. Under these circumstances, and in light of the totality of the evidence against defendant, we conclude that allowing the jury to take this exhibit into the jury room could not have affected the outcome of the trial. Thus, there was no prejudicial error.
By his next eight assignments of error, defendant argues that the prosecutor was allowed to make improper, inflammatory, and prejudicial arguments during closing arguments of the guilt phase of the trial. This Court has firmly established that:
Trial counsel are granted wide latitude in the scope of jury argument, and control of closing arguments is in the discretion of the trial court. Further, for an inappropriate prosecutorial comment to justify a new trial, it "must be sufficiently grave that it is prejudicial error." *297 State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487-88 (1992) (quoting State v. Britt, 291 N.C. 528, 537, 231 S.E.2d 644, 651 (1977)) (citations omitted). Applying these principles to the instant case, we find no error.
In the instant case, the prosecutor argued to the jury that the twelve-gauge shotgun had "to be loaded, breech closed, fired, unloaded." Defendant objected on the basis that there was no evidence to support this argument. The trial court ruled that the prosecutor was holding the weapon and "may argue from the weapon." The shotgun had been introduced as evidence, and the mechanics of loading and firing it were based directly upon evidence in the case. The prosecutor also argued that the very act of loading and firing the weapon showed premeditation and deliberation. As this was a reasonable inference to be drawn from the evidence, this ruling was not improper.
Defendant also objected to the prosecutor's assertion that "defendant is here because of choices that he made" and his exhortation to the jury not to "let [the defense] put that fault or blame on you as jurors." These remarks fall well within the wide latitude allowed for forceful persuasion and are not improper or inflammatory. Therefore, we find no error in the trial court's ruling allowing these arguments.
Next, defendant challenged the following arguments:
And heat of passion? There was no heat of passion involved in this. You won't hear any instruction from the [c]ourt on heat of passion.
....
You won't hear any instruction from the [c]ourt on self-defense, because there is no evidence to support it, ladies and gentlemen. Simply does not exist.
Defendant contends that these remarks, in addition to being improper and prejudicial, were misstatements of the law.
The record shows that the trial court gave instructions on first-degree and second-degree murder only, not manslaughter or "heat of passion." The prosecutor's assertion that the jury would not hear instructions on heat of passion was correct, not a misstatement of the law. Likewise, there was no instruction on self-defense. The prosecutor's attempt to convince the jury that there was no evidentiary support for heat of passion or self-defense was permissible within the "wide latitude [granted to counsel] in the argument of hotly contested cases." State v. Fullwood, 343 N.C. 725, 740, 472 S.E.2d 883, 891 (1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1260, 137 L.Ed.2d 339 (1997). The prosecutor did not misstate the law, distort the evidence, or inflame or prejudice the jury; thus, the trial court did not err in allowing these arguments.
The prosecutor also told the jury: "You're the voice of this community. You're here representing the community in which we all live." Defendant objected and was overruled. We have previously upheld virtually identical jury arguments. See, e.g., State v. Bishop, 346 N.C. 365, 396, 488 S.E.2d 769, 786 (1997). This assignment of error is rejected.
As to the final line of argument to which defendant points as improper, the trial court in fact sustained defendant's objections at trial and gave the jury a curative instruction. Upon an examination of the record, we do not find that the trial court acted improperly or that defendant was prejudiced. For all of the foregoing reasons, we hold that there was no error in the trial court's rulings made during the prosecutor's closing arguments in the guilt phase of the trial.
Defendant next assigns as error the trial court's failure to grant defendant's request for a jury instruction on voluntary manslaughter when the evidence supported such an instruction. Before the trial court, defendant argued that the evidence supported an instruction on voluntary manslaughter based upon the victim's provocation arousing the "heat of passion" in defendant. The State contended that nothing in the evidence suggested defendant was temporarily incapable of reflection or otherwise supported the proposed instruction. After hearing both sides, the trial court determined that the jury charge would be limited to first-degree murder, second-degree murder, and not guilty.
*298 Defendant contends that the court's refusal to instruct the jury on voluntary manslaughter violated his rights under the state and federal Constitutions. We disagree. This Court has consistently held that "when a jury is properly instructed on both first-degree and second-degree murder and returns a verdict of guilty of first-degree murder, the failure to instruct on voluntary manslaughter is harmless error." State v. East, 345 N.C. 535, 553, 481 S.E.2d 652, 664, cert. denied, ___ U.S. ___, 118 S.Ct. 306, 139 L.Ed.2d 236 (1997); see also State v. Exxum, 338 N.C. 297, 300, 449 S.E.2d 554, 556 (1994); State v. Wiggins, 334 N.C. 18, 37, 431 S.E.2d 755, 766 (1993). Assuming, arguendo, that the evidence warranted an instruction on voluntary manslaughter, the jury's verdict of first-degree murder and its rejection of second-degree murder, upon proper instructions, renders any error harmless.
By another assignment of error, defendant argues that the trial court committed reversible error by refusing to give an instruction on self-defense. Defendant contends the evidence showed the following: that the victim was the aggressor; that defendant and the victim fought; that defendant bested the victim in the fight; that the victim then told defendant to wait, he would be right back; and that the victim then moved toward the shed, where he kept weapons. Defendant asserts this was sufficient evidence for the jury to infer that defendant was in reasonable apprehension of death or great bodily harm.
We summarized the applicable law in State v. Ross, 338 N.C. 280, 449 S.E.2d 556:
There are two types of self-defense: perfect and imperfect. Perfect self-defense excuses a killing altogether, while imperfect self-defense may reduce a charge of murder to voluntary manslaughter. For defendant to be entitled to an instruction on either perfect or imperfect self-defense, the evidence must show that defendant believed it to be necessary to kill his adversary in order to save himself from death or great bodily harm. In addition, defendant's belief must be "reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness."
Id. at 283, 449 S.E.2d at 559-60 (citations omitted) (quoting State v. McKoy, 332 N.C. 639, 644, 422 S.E.2d 713, 716 (1992)). Applying these principles to this case, we conclude that the trial court did not err in refusing to give a jury instruction on self-defense.
In Ross, which occurred under similar circumstances, we held that the evidence was insufficient to merit an instruction on either perfect or imperfect self-defense, and we reach the same conclusion here. In both cases, the defendant's own statement acknowledged that the victim was unarmed when the defendant shot him in the back. Id.; see also Exxum, 338 N.C. 297, 449 S.E.2d 554 (holding that defendant was not entitled to an instruction on imperfect self-defense where undisputed evidence showed that defendant shot victim in the back as victim was walking away from defendant). Likewise, in Ross, as here, the "[d]efendant failed to present evidence to support a finding that he in fact formed a belief that it was necessary to kill the victim in order to protect himself from death or great bodily harm." Ross, 338 N.C. at 283, 449 S.E.2d at 560. Defendant offered no evidence that at the time of the shooting he believed, reasonably or unreasonably, that it was necessary to kill the victim in order to protect himself from imminent death or great bodily harm. Accordingly, the trial judge did not err by failing to instruct on self-defense.
By three assignments of error, defendant next argues that the trial court committed reversible error at the beginning of the capital sentencing proceeding by allowing the prosecutor to put before the jury a certified copy of his criminal record and then substitute for that exhibit another exhibit without retaining the original exhibit as part of the trial record. We find no merit in this argument.
The State offered "a certified copy of defendant's record" as the method of proof of the sole aggravating circumstance that defendant had previously been convicted of a felony involving the use of violence to the *299 person. Defendant objected, and the trial court excused the jury from the courtroom. After hearing arguments, the judge determined that use of defendant's criminal record, which included both charges and convictions, was not provided for by case law, and he required proof of the prior felony conviction by introduction of the judgment itself. The trial court allowed the prosecutor to withdraw the copy of defendant's criminal record and substitute the judgment as State's Exhibit S-1. The testimony of the deputy clerk of superior court laid the foundation for admission of the judgment into evidence.
Although a different form of proof may be accepted, so long as it is sufficiently reliable, this Court has recognized that the preferred method of proving a prior conviction is introduction of the judgment itself into evidence. See State v. Bishop, 343 N.C. 518, 551, 472 S.E.2d 842, 859-60 (1996), cert. denied, ___ U.S. ___, 117 S.Ct. 779, 136 L.Ed.2d 723 (1997); State v. Thomas, 331 N.C. 671, 679, 417 S.E.2d 473, 479 (1992); State v. Maynard, 311 N.C. 1, 26, 316 S.E.2d 197, 211, cert. denied, 469 U.S. 963, 105 S.Ct. 363, 83 L.Ed.2d 299 (1984). While the prosecutor initially proffered a copy of defendant's criminal record, it was never admitted into evidence or "put before the jury." The trial court in this case ruled appropriately in requiring the State to prove the sole aggravating circumstance by the preferred method, introduction of the judgment itself. Defendant contends that the mere proffer of his criminal record insinuated to the jury that defendant had an extensive criminal history. However, defendant's bare assertion of prejudice is unsupported by the record. The trial court did not err in admitting the judgment of defendant's prior felony conviction of assault with a deadly weapon inflicting serious injury as proof of the aggravating circumstance.
By his next assignment of error, defendant contends that the trial court erred in overruling defendant's objections to improper cross-examination of defendant's expert witnesses. Defendant argues that the prosecutor asked improper questions, not in good faith, that were intended to prejudice the jury. Without identifying how any specific question exceeded the permissible scope of cross-examination, defendant merely refers to several portions of the transcript and generally labels the prosecutor's cross-examination as abusive and insulting to defendant's expert witnesses.
The trial court exercises broad discretion over the scope of cross-examination and, in a sentencing proceeding, is not limited by the Rules of Evidence. State v. Warren, 347 N.C. 309, 317, 492 S.E.2d 609, 613 (1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1681, 140 L.Ed.2d 818 (1998). Generally, the scope of permissible cross-examination is limited only by the discretion of the trial court and the requirement of good faith. See State v. Scott, 343 N.C. 313, 339-40, 471 S.E.2d 605, 621 (1996).
During the sentencing proceeding, defendant objected to several questions placed to Dr. Brent Dennis, a professional social worker who testified for defendant. Defendant now asserts broadly that these questions were not asked in good faith and were intended to unduly prejudice the jury. A careful inspection of the record, however, reveals no prejudicial error during the cross-examination of Dr. Dennis. First, the trial court sustained defendant's objection to a question about whether defendant's past would be a predictor of his future actions. The witness did not answer, and defendant suffered no prejudice. Next, three questions concerning the circumstances of defendant's prior assault conviction, which defendant now attempts to challenge on appeal, were not objected to at trial. Applying the plain error rule, we conclude that the trial court did not err by failing to intervene ex mero motu to limit this questioning. See id. at 339, 471 S.E.2d at 621. Finally, the prosecutor's remaining inquiries concerned whether defendant's background would change, how long defendant had been in prison for his prior conviction, and how much the witness was compensated for his services. These questions were within the scope of permissible cross-examination. The trial court did not abuse its discretion in overruling defendant's objections.
*300 Defendant also argues that the cross-examination of Dr. John Warren, a forensic psychologist called by defendant to testify as an expert, was abusive, insulting, and degrading, and was intended to distort his testimony. We disagree. Dr. Warren was interrogated as to the amount and method of computation of his fee. We have held that the compensation of an expert witness is a legitimate subject of cross-examination to test the partiality of the witness. State v. Brown, 335 N.C. 477, 493, 439 S.E.2d 589, 598-99 (1994). Defendant also points to portions of the transcript where the trial court overruled his objections to questions concerning how Dr. Warren arrived in Robeson County for the trial, the number of capital trials at which Dr. Warren had previously testified, and what Dr. Warren did while administering the MMPI-2 (The Minnesota Multiphasic Personality Inventory-2) to defendant. Nothing in the record suggests abusive or improper interrogation by the prosecutor. Because we find no untoward or bad-faith questioning of Dr. Warren or Dr. Dennis, and no abuse of discretion by the trial court, we reject this assignment of error.
Defendant next argues that the trial court allowed the admission of irrelevant, improper, and prejudicial evidence during the testimony of Detective Ken Sealey in violation of his rights under the state and federal Constitutions. During direct examination of this witness, the prosecutor elicited the following information, to which defendant objected: (1) that the victim of defendant's prior assault conviction had been confined to a wheelchair at the time of the assault, and (2) that the original charge against defendant had been assault with a deadly weapon with intent to kill inflicting serious injury. We have previously held that "evidence of the circumstances of prior crimes is admissible to aid the sentencer" and that "the State is entitled to present witnesses in the penalty phase of the trial to prove the circumstances of prior convictions and is not limited to the introduction of evidence of the record of conviction." State v. Roper, 328 N.C. 337, 364-65, 402 S.E.2d 600, 616, cert. denied, 502 U.S. 902, 112 S.Ct. 280, 116 L.Ed.2d 232 (1991). The testimony of Detective Sealey simply conveyed the circumstances of defendant's prior conviction, which had already been introduced as evidence. The record reveals no prejudicial insinuations flowing from this testimony as defendant contends. Accordingly, we hold that the trial court properly exercised its discretion by allowing this evidence during the penalty phase of the trial and that defendant's constitutional rights were in no way infringed thereby.
Defendant next argues that the trial court, during the sentencing phase, excluded relevant mitigating evidence from consideration by the jury. Defendant contends that the trial court's rulings prevented the jury from making an appropriate individualized decision on sentencing, resulting in a violation of defendant's rights under the state and federal Constitutions.
The United States Supreme Court, in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), held that under the Eighth and Fourteenth Amendments to the United States Constitution, the sentencer in capital cases may "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id. at 604, 98 S.Ct. at 2964-65, 57 L.Ed.2d at 990. Consistent with this constitutional mandate, our capital punishment statute provides that, during the sentencing phase, evidence may be presented "as to any matter that the court deems relevant to sentence," including matters relating to mitigating circumstances. N.C.G.S. § 15A-2000(a)(3) (1997). The admissibility of mitigating evidence during the penalty phase is not constrained by the Rules of Evidence. See N.C.G.S. § 8C-1, Rule 1101(b)(3) (1992); Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979). However, the trial judge must determine the admissibility of such evidence subject to general rules excluding evidence that is repetitive, unreliable, or lacking an adequate foundation. See State v. Simpson, 341 N.C. 316, 350, 462 S.E.2d 191, 211 (1995), cert. denied, 516 U.S. 1161, 116 S.Ct. 1048, 134 L.Ed.2d 194 (1996).
*301 During the sentencing proceeding, defendant presented significant evidence in mitigation by way of seven witnesses. On numerous occasions, however, the trial court excluded evidence upon the prosecutor's objection, and defendant points to over forty instances where the trial court allegedly excluded admissible mitigating evidence. After conducting an exhaustive examination of each allegedly erroneous ruling, we conclude that the trial court did not commit prejudicial error or abuse its discretion by excluding mitigating evidence proffered by defendant.
However, one of defendant's arguments warrants further discussion. Defendant sought to attack the character of the victim of his prior assault conviction, Donnie Wilkins, by attempting to introduce Wilkins' criminal record and elicit testimony as to his reputation for violence. Defendant claims that this evidence was relevant to minimize or rebut the State's use of defendant's prior felony conviction as an aggravating circumstance. See Bishop, 343 N.C. at 551, 472 S.E.2d at 860. We disagree. The State proved the existence of the aggravating circumstance by submitting the judgment, on the foundation of testimony from the clerk of court, and by the testimony of the investigating officer. Wilkins did not appear at defendant's trial, nor was he a hearsay declarant subject to impeachment as defendant contends. The evidence defendant sought to submit did not serve to illustrate the circumstances of defendant's prior felony conviction, nor did it serve to leave with the jury "a more favorable impression of defendant's character." State v. Green, 321 N.C. 594, 611, 365 S.E.2d 587, 597, cert. denied, 488 U.S. 900, 109 S.Ct. 247, 102 L.Ed.2d 235 (1988). Nothing in the criminal record of Donnie Wilkins sheds light on defendant's age, character, education, environment, habits, mentality, propensities, or criminal record, or on the circumstances of the offense for which defendant was being sentenced. Accordingly, the evidence was not relevant to mitigation, and the trial court did not err in excluding it.
Defendant's next five arguments concern the trial court's alleged failure to submit and properly instruct on several statutory and nonstatutory mitigating circumstances. For the following reasons, we find these arguments to be without merit.
Defendant first asserts that the trial court committed reversible error by refusing to submit, upon defendant's written request, the statutory mitigating circumstance that the victim was a voluntary participant in defendant's homicidal conduct, pursuant to N.C.G.S. § 15A-2000(f)(3). Defendant argues that this mitigating circumstance was appropriate because the victim provoked a fight with defendant and, therefore, was a voluntary participant in the homicidal conduct that followed. We do not agree.
This Court recently examined this mitigating circumstance for the first time in State v. Larry, 345 N.C. 497, 481 S.E.2d 907, cert. denied, ___ U.S. ___, 118 S.Ct. 304, 139 L.Ed.2d 234 (1997). In that case, we concluded that the evidence did not support submission of the mitigating circumstance where the victim attempted to apprehend the defendant as he fled after committing armed robbery. In this case, by defendant's own admission, defendant was "getting the best of [Jay Taylor]" in the fight, and Taylor had "stopped" before defendant reentered the mobile home to get his shotgun. Defendant presented no evidence that he knew the victim kept a weapon in the shed or that the victim reinitiated the fight. Nonetheless, defendant asserts that the victim's words, "I will be right back, you son of a bitch," coupled with the prior altercation, constituted the victim's voluntary participation in defendant's homicidal conduct. It is undisputed that defendant's homicidal conduct consisted of retrieving his shotgun from inside the mobile home, shooting the victim in the back, and firing at the victim again as he was lying on the ground. The victim was not a voluntary participant in defendant's homicidal conduct within the meaning of the (f)(3) mitigating circumstance.
Next, defendant argues that the trial court committed reversible error by refusing to submit, upon written request, two nonstatutory mitigating circumstances.
The trial court submitted the nonstatutory mitigating circumstance that *302 "defendant and James Charles Taylor never established a stepfather/stepson relationship." During the charge conference, defendant agreed that this was "sufficient." Defendant now contends that the trial court erred by not giving the circumstance as originally proposed, that "there was an extenuating relationship between the defendant and James Charles Taylor." We have repeatedly held that "[i]f a proposed nonstatutory mitigating circumstance is subsumed in other statutory or nonstatutory mitigating circumstances which are submitted, it is not error for the trial court to refuse to submit it." State v. Richmond, 347 N.C. 412, 438, 495 S.E.2d 677, 691 (1998); see also State v. Strickland, 346 N.C. 443, 466, 488 S.E.2d 194, 207 (1997), cert. denied, ___ U.S. ___, 118 S.Ct. 858, 139 L.Ed.2d 757 (1998); State v. Bates, 343 N.C. 564, 583, 473 S.E.2d 269, 279 (1996), cert. denied, ___ U.S. ___, 117 S.Ct. 992, 136 L.Ed.2d 873 (1997). The circumstance that was actually submitted, along with the statutory (f)(9) catchall mitigating circumstance, which was also submitted, allowed the jury to consider and give weight to all evidence presented regarding the nature of defendant's relationship with the victim. Accordingly, the trial judge did not err in failing to submit the additional nonstatutory mitigating circumstance as originally proposed by defendant.
Defendant also contends that the trial court erred by failing to submit as a nonstatutory mitigating circumstance that "defendant continues to have family members, such as his mother, brother, aunts and uncles, who care for and support him." This circumstance, as worded, relates to persons other than defendant. Matters which reflect upon "`defendant's character, record or the nature of his participation in the offense'" are properly considered in mitigation by the jury. State v. McLaughlin, 341 N.C. 426, 441, 462 S.E.2d 1, 9 (1995) (quoting State v. Irwin, 304 N.C. 93, 104, 282 S.E.2d 439, 447 (1981)) (emphasis added), cert. denied, 516 U.S. 1133, 116 S.Ct. 956, 133 L.Ed.2d 879 (1996); see also State v. Cherry, 298 N.C. 86, 98, 257 S.E.2d 551, 559 (1979), cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980). The feelings, actions, and conduct of third parties have no mitigating value as to defendant and, therefore, are irrelevant to a capital sentencing proceeding. The trial court did not err in excluding this proposed nonstatutory mitigating circumstance.
By two more assignments of error, defendant argues that the trial court committed reversible error by refusing to give peremptory instructions on the existence of all the statutory and several nonstatutory mitigating circumstances. If a mitigating circumstance is supported by uncontroverted and manifestly credible evidence, defendant is entitled, upon request, to a peremptory instruction on that circumstance. State v. Gregory, 340 N.C. 365, 415, 459 S.E.2d 638, 667 (1995), cert. denied, 517 U.S. 1108, 116 S.Ct. 1327, 134 L.Ed.2d 478 (1996). However, a defendant must timely request such an instruction, as the trial court is "not required to sift through all the evidence and determine which of defendant's proposed mitigating circumstances entitle him to a peremptory instruction." Id. at 416, 459 S.E.2d at 667. Further, a defendant must specify a proper peremptory instruction for statutory and nonstatutory mitigating circumstances. Id.; see also Buckner, 342 N.C. at 235-37, 464 S.E.2d at 436. A general request for a peremptory instruction on all mitigating circumstances is insufficient. Gregory, 340 N.C. at 416-17, 459 S.E.2d at 667.
In this case, defendant did not request peremptory instructions during the charge conference and only raised the issue just prior to closing arguments in the penalty phase of the trial. Defendant did not make a specific request for peremptory instructions for statutory and nonstatutory mitigating circumstances, nor did he make a showing that the evidence supporting any mitigating circumstance was uncontroverted and manifestly credible. Defendant merely raised the issue of peremptory instructions before the trial court and did little more than recite several mitigating circumstances. Even in arguing to this Court, defendant does not point to any specific mitigating circumstance, statutory or nonstatutory, on which the trial court erroneously denied a peremptory instruction after a proper request and a showing *303 of sufficient evidence. We conclude that the trial court did not err in ruling on this issue.
By his next assignment of error, defendant argues that the trial court committed reversible error by failing to submit and instruct the jury on a nonstatutory mitigating circumstance, defendant's emotional immaturity at the time of the offense, after agreeing to submit such circumstance for consideration by the jury. The record reveals that defendant initially requested two nearly identical nonstatutory mitigating circumstances: number 7, "The Defendant, though 21 at the time of the offense, is emotionally immature," and number 24, "Defendant's emotional immaturity at the time of the offense reduced his culpability." During the charge conference, defendant agreed to the submission of number 7 only. This mitigating circumstance relating to defendant's emotional immaturity was in fact submitted and instructed on. Therefore, defendant's assignment of error is without merit.
Defendant next argues, based on ten assignments of error, that during the capital sentencing proceeding the trial court allowed the prosecutor to make arguments that were improper, inflammatory, prejudicial, and unsupported by the evidence. In reviewing defendant's contentions regarding the guilt phase of his trial, we examined the law applicable to prosecutors' arguments. We note here that "[t]hese principles apply not only to ordinary jury arguments, but also to arguments made at the close of the sentencing phase in capital cases." Fullwood, 343 N.C. at 740, 472 S.E.2d at 891. Further, in addition to the wide latitude generally afforded trial counsel in jury arguments, we also recognize that "the prosecutor of a capital case has a duty to zealously attempt to persuade the jury that, upon the facts presented, the death penalty is appropriate." Strickland, 346 N.C. at 467, 488 S.E.2d at 208. Applying these principles to the instant case, we find no prejudicial error.
We first note that defendant includes in his assignments of error several pages of arguments directed toward defendant's mitigating evidence, to which defendant did not object at trial. The prosecutor urged the jury, inter alia, that defendant's evidence did not establish that he was under the influence of a mental or emotional disturbance, that defendant's capacity to comply with the law was not impaired, and that defendant's size in comparison to the victim's was not a mitigating factor in this case. Upon close scrutiny of the arguments, we conclude that none were so grossly improper as to require the trial court to intervene ex mero motu.
Defendant also excepts to numerous instances in which his objections to the prosecutor's arguments were overruled. Specifically, defendant contends that the trial court committed reversible error by allowing the prosecutor to: (1) inject his personal opinion of the significance of the evidence, (2) stress the character of the deceased and the impact of his death on his family, (3) assert the possibility of a new trial for defendant, (4) make improper and inflammatory arguments, (5) stress the societal impact of crime, (6) negate the jury's duty to consider the mitigating circumstances, (7) argue the deterrent effect of the death penalty, and (8) misrepresent the testimony of defendant's mental health experts. After an exhaustive examination of the transcript, we conclude that defendant's contentions are without merit.
However, three of defendant's contentions require further discussion. First, the prosecutor argued to the jury that J.R. Taylor, defendant's stepbrother and the victim's son, walked outside and saw "his father laying there on the ground ... his life's blood puddled." Defendant objected on the basis that there was no evidence to support the statement. The trial court overruled the objection, stating that "[t]he jury will recall the evidence." We have carefully reviewed the entire record and agree with defendant that there was no evidence to support the prosecutor's assertion that J.R. Taylor saw his father after the shooting. The trial court should have disallowed this statement, as "[i]t is well settled that the trial court is required to censor remarks not warranted either by the law or by the facts." State v. McCollum, 334 N.C. 208, 225, 433 S.E.2d 144, 153 (1993), cert. denied, 512 U.S. 1254, 114 S.Ct. 2784, 129 L.Ed.2d 895 (1994).
*304 However, even though the prosecutor's argument was improper, defendant is entitled to a new sentencing hearing only if the comment "`so infected the trial with unfairness' " as to deny defendant due process of law. Id. at 223-24, 433 S.E.2d at 152 (quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144, 157 (1986)). This remark by the prosecutor did not have such an effect. The victim's son testified that he heard a gunshot, and there was substantial evidence that the boy was inside the trailer when his father was killed outside, only several feet away. The evidence clearly established J.R. Taylor's proximity to the scene of his father's murder. We conclude that the prosecutor's statement that J.R. saw the body, while inappropriate, was not prejudicial. The trial court's error in failing to sustain defendant's objection was harmless beyond a reasonable doubt.
Next, defendant repeatedly objected to the prosecutor's argument for the death penalty as an appropriate punishment. Defendant contends that speculation about defendant's future dangerousness was inflammatory and that the trial court erred by allowing it. The record shows that the prosecutor urged the jury to "save someone else's life" and to never "let him put his hands on another gun or another knife and face down another human being who has made him mad." The prosecutor argued that prison would not do defendant any good and that the death penalty would prevent defendant from taking another life. During this argument, the trial court instructed the prosecutor to make it clear that his deterrence argument applied only to this defendant. We have previously held that arguments invoking specific deterrence are proper. See State v. Syriani, 333 N.C. 350, 397, 428 S.E.2d 118, 144, cert. denied, 510 U.S. 948, 114 S.Ct. 392, 126 L.Ed.2d 341 (1993). This argument is rejected.
Finally, defendant contends that the following argument improperly commented on a possible appeal: "You've got to stop this now, ladies and gentlemen. And only you can do it. Don't pick up the paper somewhere down the road and read about a new trial of [defendant]." Defendant objected. Out of the presence of the jury, defendant argued to the court that this implied to the jury that defendant could get a retrial. Defendant requested a mistrial. The trial court stated that it did not interpret the argument that way. The court denied the motion for a mistrial and overruled defendant's objection. We conclude that the trial court correctly interpreted the prosecutor's argument as an extension of his specific-deterrence argument as to defendant, rather than a comment on the appellate process. We decline to hold that the trial court erred in this ruling.
By another assignment of error, defendant contends that his state and federal constitutional rights were violated by the jury's recommendation of a death sentence because it was returned under the influence of passion, prejudice, and other arbitrary factors. Defendant argues that grossly improper arguments by the prosecutor, specifically arguments that implied defendant would get a new trial, get out of jail, and kill again, substantially influenced the jury's recommendation of death. We have already addressed these assertions and found them to be meritless. We have also carefully scrutinized the entire record for any indication of the influence of passion, prejudice, or other arbitrary factors in the jury's recommendation, and having found none, we reject this assignment of error.
Defendant raises six additional issues which he has denominated as preservation issues. As to the first of these, defendant simply reiterates the arguments he made concerning allegedly improper and prejudicial comments by the prosecutor concerning the possibility of a new trial. Defendant contends that the trial court erred by denying his motion for mistrial. For the reasons we have already stated, we reject this argument.
Of the remaining five issues raised by defendant, we initially note that at least four
are not proper preservation issues because they are not determined solely by principles of law upon which this Court has previously ruled. Rather, these assignments of error are fact specific requiring *305 review of the transcript and record to determine if the assignment has merit. Where counsel determines that an issue of this nature does not have merit, counsel should "omit it entirely from his or her argument on appeal."
Gregory, 340 N.C. at 429, 459 S.E.2d at 675 (quoting State v. Barton, 335 N.C. 696, 712, 441 S.E.2d 295, 303 (1994)). Furthermore, none of these five issues is addressed by any argument or authority whatsoever. "Assignments of error ... in support of which no reason or argument is stated or authority cited[ ] will be taken as abandoned." N.C. R.App. P. 28(b)(5).
Having concluded that defendant's trial and capital sentencing proceeding were free of prejudicial error, we turn now to duties reserved exclusively for this Court in capital cases. It is our duty under N.C.G.S. § 15A-2000(d)(2) to ascertain: (1) whether the record supports the jury's finding of the aggravating circumstance on which the sentence of death was based; (2) whether the death sentence was entered under the influence of passion, prejudice, or other arbitrary consideration; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
In this case, the sole aggravating circumstance submitted to and found by the jury was that defendant had been previously convicted of a felony involving the use of violence to the person, N.C.G.S. § 15A-2000(e)(3). None of the jurors found the existence of any submitted statutory mitigating circumstance: that defendant had no significant history of prior criminal activity, N.C.G.S. § 15A-2000(f)(1); that the murder was committed while defendant was under the influence of mental or emotional disturbance, N.C.G.S. § 15A-2000(f)(2); that the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired, N.C.G.S. § 15A-2000(f)(6); or the age of defendant at the time of the crime, N.C.G.S. § 15A-2000(f)(7). The trial court also submitted seventeen nonstatutory mitigating circumstances and the catchall mitigating circumstance, N.C.G.S. § 15A-2000(f)(9), none of which was found by any juror.
The existence of the (e)(3) aggravating circumstance was established at trial through the introduction of the judgment of defendant's prior conviction of assault with a deadly weapon inflicting serious injury, as well as the testimony of the detective who investigated the assault. After thoroughly examining the record, transcripts, and briefs in this case, we conclude that the record fully supports the sole aggravating circumstance submitted to and found by the jury. Further, as stated above, we find no indication that the sentence of death in this case was imposed under the influence of passion, prejudice, or any other arbitrary consideration. We must turn then to our final statutory duty of proportionality review.
We begin our proportionality review by comparing the present case with other cases in which this Court has concluded that the death penalty was disproportionate. We have found the death penalty disproportionate in seven cases. State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988); State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987); State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other grounds by State v. Gaines, 345 N.C. 647, 483 S.E.2d 396, and by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988); State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985); State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984); State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170; State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983). No case in which this Court has determined the death penalty to be disproportionate has included the aggravating circumstance that defendant had previously been convicted of a felony involving the use of violence to the person. State v. Burke, 343 N.C. 129, 162, 469 S.E.2d 901, 918, cert. denied, ___ U.S. ___, 117 S.Ct. 522, 136 L.Ed.2d 409 (1996); State v. Rose, 335 N.C. 301, 351, 439 S.E.2d 518, 546, cert. denied, 512 U.S. 1246, 114 S.Ct. 2770, 129 L.Ed.2d 883 (1994). Additionally, although the jury considered twenty-two mitigating circumstances, it found none. We conclude that this case is not substantially similar to any *306 case in which this Court has found the death penalty disproportionate.
It is also proper to compare this case to those where the death sentence was found proportionate. McCollum, 334 N.C. at 244, 433 S.E.2d at 164. However, it is unnecessary to cite every case used for comparison. Id.; Syriani, 333 N.C. at 400, 428 S.E.2d at 146. We do note that this Court has previously upheld a sentence of death in cases in which the sole aggravating circumstance found by the jury was the conviction of a prior felony involving the use of violence to the person. See Strickland, 346 N.C. at 469-70, 488 S.E.2d at 209-10.
In the instant case, there was sufficient evidence introduced to support this aggravating circumstance. Evidence presented at trial as to the circumstances of defendant's previous conviction of a prior violent felony revealed it was a knife attack on a victim confined to a wheelchair. Additionally, defendant was convicted in this case of first-degree murder under the theory of premeditation and deliberation. Defendant shot his unarmed stepfather in the back and fired the gun twice more as the victim was lying on the ground.
After comparing this case to other roughly similar cases as to the crime and the defendant, we conclude that this case has the characteristics of first-degree murders for which we have previously upheld the death penalty as proportionate. We hold that defendant received a fair trial and capital sentencing proceeding free of prejudicial error and that the death sentence in this case is not excessive or disproportionate.
NO ERROR.
WYNN, J., did not participate in the consideration or decision of this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333405/ | 241 S.E.2d 108 (1978)
35 N.C. App. 259
Gertrude Jeffers HARRISON
v.
Betty Burnett HERBIN.
No. 7718DC91.
Court of Appeals of North Carolina.
February 7, 1978.
*109 Max D. Ballinger, Greensboro, for plaintiff.
Henson & Donahue by Daniel W. Donahue and Kenneth R. Keller, Greensboro, for defendant.
BROCK, Chief Judge.
Plaintiff contends that the trial judge abused his discretion in denying plaintiff's motion that attorney's fees be taxed against defendant in this action. Plaintiff argues that, as illustrated by questions asked by the trial judge during argument on the motion, the judge by denying the motion, apparently intended to penalize plaintiff for bringing her action in district court rather than in magistrate's court, for requesting a jury trial, for refusing to seek damages from her own insurance carrier, for refusing defendant's offer of settlement, and as being, in general, responsible for this litigation. We find no merit in plaintiff's arguments.
G.S. 6-21.1 authorizes the presiding judge, in his discretion, to allow a reasonable attorney fee for the successful party in a personal injury or property damage suit where the damage recovery is $2,000.00 or less. The rationale behind the statute was stated by our Supreme Court in Hicks v. Albertson, 284 N.C. 236, 239, 200 S.E.2d 40, 42 (1973).
"The obvious purpose of this statute is to provide relief for a person who has sustained injury or property damage in an amount so small that, if he must pay his attorney out of his recovery, he may well conclude that it is not economically feasible to bring suit on his claim. In such a situation the Legislature apparently concluded that the defendant, though at fault, would have an unjustly superior bargaining power in settlement negotiations."
It remains a fact, however, as set out in the express language of the statute, that the allowance of fees is in the discretion of the presiding judge. Upon examining the record in this case, we cannot say that the judge abused his discretion in denying the award of fees. Defendant's insurance carrier communicated an offer of settlement to plaintiff in the amount of $200.00, just $50.00 less than the ultimate damage award at trial. We perceive of no exercise of any unjustly superior bargaining power on the part of the defendant. While the statute is aimed at encouraging injured parties to press their meritorious but pecuniarily small claims, we do not believe that it was intended to encourage parties to refuse reasonable settlement offers and give rise to needless litigation by guaranteeing that counsel will, in all cases, be compensated.
Therefor we hold that plaintiff has shown no abuse of discretion by the trial judge. The judgment denying plaintiff's motion for an award of attorney fees is
Affirmed.
MARTIN and CLARK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333332/ | 505 S.E.2d 485 (1998)
233 Ga. App. 630
DEARING
v.
The STATE.
No. A98A0568.
Court of Appeals of Georgia.
June 8, 1998.
Reconsideration Denied July 29, 1998.
*486 Glyndon C. Pruitt, Buford, for appellant.
Lydia J. Sartain, District Attorney, J. Philip Milam, Assistant District Attorney, for appellee.
SMITH, Judge.
Based on evidence seized pursuant to a search warrant, Amanda Dearing was indicted on one charge of possession of methamphetamine with intent to distribute. She filed a motion to suppress arguing among other things that the warrant was illegally issued because the veracity and basis of knowledge of the person characterized as a "concerned citizen" were insufficiently presented to the magistrate. The trial court denied the motion, and Dearing was subsequently tried and convicted of the crime with which she was charged. Her motion for new trial as amended was denied, and she now appeals, raising as error the trial court's denial of her motion to suppress. The issue in this case focuses on whether the affidavit supporting the application for a search warrant established sufficient probable cause to search. The basis for the affidavit was a tip by a confidential informant. In particular, Dearing contends that this confidential informant was erroneously afforded "concerned citizen" status. We do not agree, and we affirm.
The affiant in this case, a narcotics agent with the Gainesville Police Department, stated in the affidavit that he had been contacted by a concerned citizen. He stated that the concerned citizen had been at a certain specified premises on or between the dates of August 23 and August 31, 1995, and had observed a quantity of white powder represented by Dearing and another suspect to be amphetamine powder. He considered the informant's tip to be true and reliable because the informant was "a mature person gainfully employed in a full time capacity," had no known criminal record, and "displayed an open and truthful demeanor with no apparent motivation to falsify" the information. In addition, he stated that the individual's motivation for supplying the information arose from the individual's life experiences, as the individual "had the opportunity to see how drug addictions can affect abusers as well as the abusers [sic] family members," and the individual wished to help other members of the community.
In deciding whether an affidavit established probable cause necessary for issuance of a search warrant, it is well settled that we must apply the "totality of the circumstances analysis [utilized] in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)." State v. Davis, 217 Ga.App. 225, 457 S.E.2d 194 (1995), aff'd, Davis v. State, 266 Ga. 212, 465 S.E.2d 438 (1996). "Under that analysis, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." (Citations and punctuation omitted.) 217 Ga.App. at 225-226, 457 S.E.2d 194.
We conclude that the magistrate in this case was provided sufficient information from which to find probable cause to issue a warrant. The informant described in this case is similar to that described in Davis, supra, a case in which we reversed the trial court's grant of defendant's motion to suppress. According to the affiant in that case, the informant was in good standing in the community, owned his own business, and had nothing to gain by providing information about the defendant. Davis, supra, 217 Ga. App. at 226, 457 S.E.2d 194. The affiant there was considered a "concerned citizen" *487 and therefore was afforded "a preferred status insofar as testing the credibility of his information." (Punctuation omitted.) Id. at 227, 457 S.E.2d 194. Similarly, the affiant here stated that the informant was gainfully employed, had no criminal record, and appeared to have nothing to gain by providing information to the police. These statements by the affiant provided the magistrate with some facts forming the basis for the affiant's conclusion that the informant was truthful. Compare Gary v. State, 262 Ga. 573, 577, 422 S.E.2d 426 (1992) (no facts supporting affiant's conclusion that informant was truthful presented to magistrate).
Eaton v. State, 210 Ga.App. 273, 435 S.E.2d 756 (1993), relied upon by Dearing, is not controlling. In that case, the affiant admitted on cross-examination at the motion to suppress hearing that he did not know the informant and that the only basis for his characterization of the informant as a concerned citizen was "what the informant himself told the officer on the phone." Id. at 275, 435 S.E.2d 756. See also Davis, supra, 217 Ga.App. at 226, 457 S.E.2d 194. In contrast, the affidavit here shows that this officer judged the citizen's demeanor. Moreover, as in Davis, Dearing offered nothing in opposition to the evidence produced by the State concerning the informant's reliability. "In this evidentiary posture, the state met its burden of proof as a matter of law and the denial of [Dearing's] motion to suppress was mandated. The resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." (Citations and punctuation omitted.) Davis, supra, 266 Ga. at 213, 465 S.E.2d 438.
Dearing also argues that the warrant was not supported by probable cause because the information provided by the informant was not sufficiently corroborated. The affiant stated that his investigation showed to be true and correct the informant's description of and directions to the premises where the contraband was seized. In addition, the affiant corroborated that Dearing and the other suspect lived at the premises where the contraband was seized. Finally, the affiant found to be accurate physical and vehicle descriptions provided by the informant.
Whether the affiant sufficiently corroborated the informant's tip is questionable, as the affiant basically testified only that Dearing lived at the dwelling where the informant said she lived. See Davis v. State, 214 Ga. App. 36, 37, 447 S.E.2d 68 (1994); Gary v. State, supra. But the magistrate is not limited to consideration of corroborating evidence when making a practical, common sense decision as to whether a fair probability exists that contraband may be found in a certain place. Rather, as discussed above, the magistrate must examine the totality of circumstances when making this decision. Davis, supra, 217 Ga.App. at 225-226, 457 S.E.2d 194. While corroboration may be necessary to cure deficiencies caused by the failure to establish the reliability of a confidential informant, see Wood v. State, 214 Ga.App. 848, 849, 449 S.E.2d 308 (1994), here, the reliability of the informant was established. The totality of the circumstances here included evidence that the informant could be considered a concerned citizen and evidence that the informant saw the contraband at the premises occupied by Dearing. Considering this, and given the mandate that doubtful cases should be resolved in favor of upholding search warrants, we cannot say that the trial court erred in concluding the affidavit provided sufficient probable cause for issuing the warrant.
Judgment affirmed.
BIRDSONG, P.J., and JOHNSON, J., concur.
ON MOTION FOR RECONSIDERATION
On motion for reconsideration, Dearing argues primarily that this case is controlled by this Court's recent decision in Pailette v. State, 232 Ga.App. 274, 501 S.E.2d 603 (1998). Although similar in many respects, the facts of these two cases are distinguished.
Significantly, it appears that the affidavit in Pailette did not disclose information concerning the criminal record of the informant, nor did it disclose any information concerning the informant's life experiences, as did *488 the affidavit here, factors that could have influenced the trial court's conclusion that the citizen was reliable and that probable cause existed to issue the warrant.
We also note that although this Court recited in Pailette that an officer received information from a "concerned citizen," the affidavit itself in Pailette does not appear to have mentioned that the informant should have been afforded this status. This omission may explain why this Court did not examine the facts of Pailette in light of cases such as State v. Davis, 217 Ga.App. 225, 457 S.E.2d 194 (1995), aff'd, Davis v. State, 266 Ga. 212, 465 S.E.2d 438 (1996), recognizing the preferred status given to information provided by concerned citizens. Under the circumstances of this case, even in light of Pailette, and under the well-established law that "marginal cases in this area should be largely determined by the preference to be accorded to warrants," we cannot say the trial court erred in denying Dearing's motion to suppress. (Citations and punctuation omitted.) Davis, supra, 266 Ga. at 213, 465 S.E.2d 438. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333314/ | 505 S.E.2d 142 (1998)
Richard Daniel WUCHTE, Plaintiff,
v.
Jackie McNEIL, in his personal and official capacity as the Chief of Police of the City of Durham, and the City of Durham, Defendants.
No. COA97-840.
Court of Appeals of North Carolina.
September 15, 1998.
*143 McSurely, Dorosin & Osment by Alan McSurely and Ashley Osment, Chapel Hill, for plaintiff-appellant.
Newsom, Graham, Hedrick & Kennon, P.A. by Joel M. Craig and Thomas H. Lee, Jr., Durham, for defendants-appellees.
LEWIS, Judge.
In this appeal plaintiff alleges that the defendants violated his rights under the Constitutions of North Carolina and the United States by dismissing him from his job as a Durham City police officer without affording him the procedures set forth in Durham City personnel policies memoranda.
Plaintiff filed a complaint in Chatham County Superior Court on 6 April 1995 alleging violations of Article I sections 1, 12, 14, 18, and 19 of the North Carolina Constitution and the Fourteenth Amendment to the United States Constitution. By consent order, *144 the action was transferred to Durham County Superior Court. On 28 May 1997 Judge James C. Spencer, Jr. found that there was no genuine issue of material fact and granted summary judgment in favor of defendants. We affirm.
We note at the outset that plaintiff has argued only his procedural due process claims in his brief. We will not address, therefore, the other arguments that plaintiff asserted below and that fall within his one, very broad assignment of error. N.C.R.App. P. 28(b)(5).
Summary judgment is properly granted where the movant shows that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. N.C. Gen.Stat. § 1A-1, Rule 56(c) (1990). In the present case, plaintiff contends that there is a dispute regarding the events leading up to his dismissal. In light of our resolution of this case, these disputed facts are not material. Our inquiry, therefore, is limited to whether the trial court correctly applied the law.
The Office of the Durham City Manager issued a personnel policy memorandum entitled "Employee Grievance Procedure" in 1986, which outlined a hearing procedure for employee grievances. Similarly, in 1989, the same office issued a personnel policy memorandum entitled "Discipline," which provided, inter alia, that employees should receive counseling and coaching from their supervisors and that supervisors should confer with Human Resources prior to the initiation of a disciplinary action. Plaintiff contends defendants violated his procedural due process rights by failing to follow these procedures.
Determining whether plaintiff's procedural due process rights under the North Carolina and United States Constitutions have been violated requires a two-step analysis: plaintiff must show first that he has a protected liberty interest and only then will courts consider his contention that the process he received was inadequate. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S. Ct. 1487, 1491, 84 L. Ed. 2d 494, 501 (1985); Soles v. City of Raleigh Civil Service Comm., 345 N.C. 443, 446, 480 S.E.2d 685, 687, reh'g denied, 345 N.C. 761, 485 S.E.2d 299 (1997); see also Woods v. City of Wilmington, 125 N.C.App. 226, 230, 480 S.E.2d 429, 432 (1997) ("The `law of the land' clause [of the North Carolina Constitution] is considered `synonymous' with the Fourteenth Amendment to the United States Constitution."). The existence of a property right to continued employment must be decided under state law. See Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 2077, 48 L. Ed. 2d 684, 690 (1976). Because we hold that, under North Carolina law, plaintiff did not have a protected liberty interest in continued employment with the City of Durham, it is unnecessary for us to address the sufficiency of the process he received before and after his termination.
An employee is presumed to be an employee-at-will absent a definite term of employment or a condition that the employee can be fired only "for cause." See Still v. Lance, 279 N.C. 254, 259, 182 S.E.2d 403, 406 (1971). An employee-at-will can be fired for an irrational reason, no reason, or any reason that does not violate public policy. See id. at 259, 182 S.E.2d at 406; Coman v. Thomas Manufacturing Co., 325 N.C. 172, 175, 381 S.E.2d 445, 447 (1989). As such, an employee-at-will does not have a constitutionally protected right to continued employment and does not have the benefit of the protections of procedural due process. See Howell v. Town of Carolina Beach, 106 N.C.App. 410, 417, 417 S.E.2d 277, 281 (1992).
An employee whose employment would otherwise be at-will may gain a recognizable interest in continued employment where such a right is granted by ordinance or implied contract. See id. Employee manuals or policy memoranda may form the basis of such a right if they are expressly included in the employee's employment contract, or in the case of local governments, enacted as ordinances. See id.; Trought v. Richardson, 78 N.C.App. 758, 760, 338 S.E.2d 617, 618, disc. rev. denied, 316 N.C. 557, 344 S.E.2d 18 (1986).
Plaintiff's reliance on the personnel policies discussed above as creating a right to procedural due process is misplaced. Nothing *145 else appearing, unilaterally promulgated employee manuals or personnel memoranda do not create a property interest in continued employment. See Harris v. Duke Power Co., 319 N.C. 627, 630, 356 S.E.2d 357, 359-60 (1987), overruled on other grounds, 347 N.C. 329, 333, 493 S.E.2d 420 (1997); see also Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 259, 335 S.E.2d 79, 83-84 (1985) (noting the "strong equitable and social policy reasons militating against allowing employers to promulgate for their employees potentially misleading personnel manuals while reserving the right to deviate from them at their own caprice," but, nonetheless, stating that employers are free to disregard such provisions), disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986).
Plaintiff points to Howell v. Town of Carolina Beach, 106 N.C.App. 410, 417, 417 S.E.2d 277, 281 (1992), for the proposition that Durham's personnel memoranda gave him a "reasonable expectation of continued employment within the meaning of the due process clause." Howell is distinguishable, however, from cases involving unilaterally promulgated personnel memoranda, including the present case. Of critical importance in Howell was that the manual had been adopted by the town as an ordinance. This Court compared the town's ordinance to N.C. Gen.Stat. § 126-35 (1991), which has been held to grant state employees a "reasonable expectation of employment and a property interest within the meaning of the Due Process Clause." Id. The distinction between policy memoranda and ordinances has recently been upheld by our Supreme Court. See Soles, 345 N.C. at 447, 480 S.E.2d at 687.
In the present case, the personnel memoranda upon which plaintiff relies have not been adopted by the City of Durham as an ordinance. In fact, Durham enacted an ordinance in 1991 that provides:
Sec. 14-17. Effect of administrative procedures on legal entitlements.
No property rights with regard to benefits, termination or job status shall be inferred from policy memoranda, employee handbooks or other statements of administrative procedure unless such benefits or guarantees have been specifically and explicitly included in this ordinance.
Durham Code of Ordinances, No. 9209, § 8, 4-15-91. The personnel memoranda upon which plaintiff relies do not grant him a recognizable property interest under the Due Process Clauses of the United States or North Carolina Constitutions.
Plaintiff next argues that defendant McNeil's submission of the Report of Separation to the North Carolina Department of Justice violated plaintiff's procedural due process rights.
Law enforcement agencies are required to complete a "Report of Separation" within ten days of an officer's retirement, resignation, dismissal, or death and forward it to the Criminal Justice Standards Division. See 12 N.C.A.C. § 9C.0305 (1981). In addition to administrative information, such as the officer's name and length of service, the form contains four sections: Reason for Separation, Reason, Employability, and Agency's Additional Comments. Under "Reason for Separation," defendant McNeil checked the box labeled "Dismissal." Under "Employability," defendant McNeil checked two boxes: "This agency would not consider this individual for reappointment," and "This agency would not recommend employment elsewhere as a criminal justice officer." Defendant McNeil made no comments or allegations under the sections "Reason [for dismissal]" or "Agency's Additional Comments."
Plaintiff contends that defendant McNeil's submission of this report to the Criminal Justice Standards Division without giving him an opportunity to refute the charges underlying his dismissal violated his right to procedural due process. We disagree.
In Presnell v. Pell, 298 N.C. 715, 724, 260 S.E.2d 611, 617 (1979), our Supreme Court, relying on a line of United States Supreme Court cases, held that an employee-at-will, while lacking a liberty interest in continued employment, does possess a liberty interest in his "freedom to seek further employment." In Presnell, plaintiff, a school cafeteria worker, alleged that the school principal publicly and falsely accused her of distributing alcoholic beverages to other employees. *146 See id. at 717-18, 260 S.E.2d at 613. Plaintiff was subsequently fired without a hearing. The Court held that "defamation concurrent with and related to termination of... employment" was sufficient to invoke due process protection. Id. at 723, 260 S.E.2d at 617; see also Paul v. Davis, 424 U.S. 693, 708-09, 96 S. Ct. 1155, 1164, 47 L. Ed. 2d 405, 418 (1976) (holding that an individual does not have a liberty interest in his reputation alone but, in dicta, stating that defamation in conjunction with termination of employment may implicate a liberty interest); but see Bishop v. Wood, 426 U.S. 341, 348, 96 S. Ct. 2074, 2079, 48 L. Ed. 2d 684, 692 (1976) (holding that the termination of an employee-at-will where the reasons for the termination were not publicly disclosed does not implicate a liberty interest); Board of Regents v. Roth, 408 U.S. 564, 573, 92 S. Ct. 2701, 2707, 33 L. Ed. 2d 548, 558 (1972) (holding that a university's failure to re-hire a non-tenured professor did not implicate a liberty interest where the university "did not make any charge against him that might seriously damage his standing and associations in the community").
One of the liberty interests encompassed in the Due Process Clause of the Fourteenth Amendment is the right "to engage in any of the common occupations of life," unfettered by unreasonable restrictions imposed by actions of the state or its agencies. Meyer v. Nebraska, 262 U.S. 390, 399 [43 S. Ct. 625, 67 L. Ed. 1042] (1923); Truax v. Raich, 239 U.S. 33 [36 S. Ct. 7, 60 L. Ed. 131] (1915). The right of a citizen to live and work where he will is offended when a state agency unfairly imposes some stigma or disability that will itself foreclose the freedom to take advantage of employment opportunities. Board of Regents v. Roth, supra. Thus, where a state agency publicly and falsely accuses a discharged employee of dishonesty, immorality, or job related misconduct, considerations of due process demand that the employee be afforded a hearing in order to have an opportunity to refute the accusation and remove the stigma upon his reputation.
Presnell v. Pell, 298 N.C. 715, 724, 260 S.E.2d 611, 617 (1979).
There are two issues presented here: first, whether a report that does not contain any allegations of misconduct or immorality but that does withhold a recommendation is sufficient to "accuse[ ] a discharged employee of dishonesty, immorality or job related misconduct" and thereby implicate a liberty interest; and, second, whether the report was made "public," for due process purposes, when it was submitted to the Criminal Justice Standards Commission.
There is no question that prospective employers in law enforcement are not likely to be affirmatively impressed when they learn that defendant McNeil "would not recommend [plaintiff] for employment elsewhere as a law enforcement officer." In fact, plaintiff alleges, and we must take as true, he was denied a position with the Orange County Sheriff's Department as a result of defendant McNeil's statements in the Report of Separation. Nonetheless, we hold that merely withholding a recommendation does not invoke due process protection. In Robertson v. Rogers, the school board chose not to renew plaintiff's contract as assistant superintendent. 679 F.2d 1090, 1091 (4th Cir.1982). The Fourth Circuit held that even if
the superintendent [had] told prospective employers that Robertson was terminated for "incompetence and outside activities," this does not amount to the type of communication which gives rise to a protected liberty interest. See Sigmon v. Poe, 564 F.2d 1093, 1096 (4th Cir.1977); Gray v. Union County Intermediate Education District, 520 F.2d 803, 806 (9th Cir.1975). Allegations of incompetence do not imply the existence of serious character defects such as dishonesty or immorality, contemplated by Roth, supra, and are not the sort of accusations that require a hearing.
Robertson, 679 F.2d at 1092. In the present case, the report does not include any charges related to plaintiff's character. In fact, the report contains no charges of any kind.
Having found the statements included in the Report of Separation insufficient to implicate plaintiff's liberty interest in seeking future employment, we need not reach the issue of whether the report was made public. We hold that plaintiff's due process rights, *147 under either the North Carolina or United States constitutions, were not violated by the submission of Form F-5B, "Report of Separation" to the Criminal Justice Standards Commission without giving plaintiff notice and opportunity to be heard. The order of the trial court granting defendants' motion for summary judgment is
Affirmed.
JOHN C. MARTIN and MARK D. MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333422/ | 144 Ga. App. 622 (1978)
241 S.E.2d 492
CRAWFORD
v.
THE STATE. (two cases).
55038, 55039.
Court of Appeals of Georgia.
Argued January 4, 1978.
Decided January 26, 1978.
*623 Robert E. Bach, for appellant.
Thomas J. Charron, District Attorney, Joseph L. Chambers, Assistant District Attorney, for appellee.
DEEN, Presiding Judge.
1. Enumerations of error 10 and 12 complain that the court did not "advise the defendant of his rights" prior to testifying. It is unclear whether appellant complains of a failure to repeat the so-called Miranda rights (right to counsel, etc.) or to remind him that he need not answer questions which might tend to incriminate him. The defendant was, however, being questioned by his own counsel, and there was no burden on the court to give cautionary instructions.
2. Count 1 of the indictment charges the defendant with abducting a named witness and "that he did further cause bodily harm to [her] by having carnal knowledge with her forcibly and against her will." The evidence of the victim established the crime, while that of the defendant agreed with her testimony except that he maintained that both the automobile ride and the intercourse were effectuated with her consent. Whether the crime alleged was committed thus became a matter of the intent of the parties. Appellant contends in Enumerations 13, 14, 17 and 22 that references to the rape involve a proscribed injection of other crimes into the trial. As to the evidence, no objection was made at any time. It was not error to read the indictment, to which no objection was interposed, or to state correctly that the state contended the bodily injury inflicted on the victim was a rape. The court also instructed the jury that the defendant was not on trial for any other offense than armed robbery (with the lesser included offenses of robbery and theft by taking) and kidnapping with bodily harm, and that any evidence as to other offenses was admitted solely to illustrate state of mind or motive. The evidence supported the instructions given and the latter, in the absence of a request for a more specific charge, were adequate.
*624 3. Ground 7 complains of the denial of a thorough and sifting cross examination. We have examined the 13 pages of record cited and find not a single instance where the defendant's attorney was inhibited in his cross examination of the state's witness; we are therefore at a loss to understand the thrust of this enumeration of error.
4. There was no error in encouraging the jury. to reach a verdict in the language of the "Allen charge" (Allen v. United States, 164 U.S. 492) where proper cautionary instructions were included. Still v. State, 142 Ga. App. 312 (4) (235 SE2d 737).
5. To forbid proceedings for revocation of probation until a criminal charge which forms the basis of the revocation petition is disposed of would change the character of the proceedings by requiring substitution of proof beyond a reasonable doubt for slight evidence. Jackson v. State, 140 Ga. App. 659 (231 SE2d 554).
6. This defendant, at the time of his arrest, was on probation under a sentence as first offender as provided by Code § 27-2727, which allows further proceedings to be delayed under the Statewide Probation Act. "Upon violation of the terms of probation, or upon conviction for another crime, the court may enter an adjudication of guilt and proceed as otherwise provided." This language permits the trial court to vacate the original probated sentence and "the defendant is subject to receive any sentence permitted by law for the offense he has been found guilty of committing." State v. Wiley, 233 Ga. 316, 318 (210 SE2d 790). It was not error, in case no. 55039, to vacate the original three-year probated sentence for burglary which the defendant was serving at the time of his arrest and, after hearing, enter an adjudication of guilt together with a maximum sentence.
7. It is further contended that the right of the defendant to a thorough and sifting cross examination was abridged in the probation revocation hearing. The court did disallow two questions: How long the prosecutrix had been married and whether she had made similar charges against another person in the past. Code § 38-1704 protects the right of a witness "to be examined only as to relevant matter; and to be protected from *625 improper questions and from harsh or insulting demeanor." The next section provides for the right of thorough and sifting cross examination. These rights must be balanced against each other. In this hearing before the court without a jury, where the relevance of facts concerning the witness' prior life is at the very least questionable, it was not error to disallow the questions. Cf. Rooker v. State, 211 Ga. 361 (4) (86 SE2d 307); Manor v. State, 223 Ga. 594 (7) (157 SE2d 431).
Judgments affirmed in both cases. Smith and Banke, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333430/ | 144 Ga. App. 443 (1978)
241 S.E.2d 319
BURNETT et al.
v.
DOSTER.
54611.
Court of Appeals of Georgia.
Submitted October 11, 1977.
Decided January 4, 1978.
Benjamin Zeesman, for appellants.
Jay, Garden, Sherrell & Smith, Clayton Jay, Jr., for appellee.
BANKE, Judge.
Lonnie Burnett brought suit against Norman Doster to recover for injuries and medical expenses sustained in an automobile accident allegedly caused by the negligence of Doster's minor daughter. He also sought to recover for his pain and suffering, for the loss of past and future earnings, and for punitive and exemplary damages. Mrs. Mildred Burnett sued Doster to recover for loss of consortium. Doster filed a counterclaim against Lonnie Burnett.
The cases were consolidated for trial, and the jury returned a verdict of $5,000 for Lonnie Burnett, but returned a verdict for Doster on Mildred Burnett's suit. In this consolidated appeal, appellant Lonnie Burnett contends that the verdict rendered in his favor was inadequate as a matter of law; appellant Mildred Burnett claims the verdict for the appellee, Doster, on her companion suit was inconsistent with the verdict allowing recovery for her husband. Both appellants claim that the judgments should be reversed because of numerous errors committed at trial.
1. The evidence at trial showed that appellant Lonnie Burnett is disabled. However, medical testimony was given which tended to prove that much of his disability was due to a pre-existing medical condition and *444 that he was not disabled solely as a result of his accidental injuries. The appellee also introduced evidence that appellant Lonnie Burnett negligently failed to give a left turn signal and that this omission was the primary cause of the accident. Thus, the evidence authorized the jury's award of an amount less than the total amount sought. Furthermore, there is no evidence to support an inference of gross mistake or undue bias on behalf of the jury in rendering its verdict. See Barnes v. Cornett, 134 Ga. App. 120 (3) (213 SE2d 703) (1975).
The trial judge did not err in refusing to grant appellant Lonnie Burnett's motion for new trial on either the general grounds or on the ground that the verdict was inadequate.
2. In her amended motion for new trial, appellant Mildred Burnett argued that since her husband was entitled to recover "so was she for [the] loss of her husband's services and in view of his severe injuries and suffering." It is the established law of this state that loss of a husband's services is not a proper element in a wife's suit for loss of consortium. See Brown v. Ga.-Tenn. Coaches, Inc., 88 Ga. App. 519 (77 SE2d 24) (1953); Pinkerton Nat. Detective Agency, Inc. v. Stevens, 108 Ga. App. 159 (132 SE2d 119) (1963).
However, appellee's liability was established by the verdict awarding appellant Lonnie Burnett damages for personal injury. On the basis of this verdict appellant Mrs. Burnett would be entitled to a new trial on the issue of damages provided her evidence as to loss of consortium was uncontradicted. See Smith v. Tri-State Culvert Mfg. Co., 126 Ga. App. 508 (191 SE2d 92) (1972); Clark v. Wright, 137 Ga. App. 720 (224 SE2d 825) (1976).
Appellant's counsel has omitted any reference in his brief to evidence in the record establishing proof of appellant's loss. Nevertheless, we have examined the record and found that appellee failed to refute appellant's evidence as to her loss of consortium. We find, therefore, that appellant Mildred Burnett is entitled to a retrial on the issue of damages since appellee's liability was established by the original verdict for her husband.
The appellant also sued to recover for wages she lost as a result of having to stop work to care for her injured *445 husband. The trial judge did not instruct the jury that they could award plaintiff damages on this theory, and appellants' counsel did not object to this omission. Without rendering any comment on the validity of such cause of action, we find that the failure to object at trial precludes review of the trial court's failure to charge on this issue.
3. (a) Appellants allege that the trial judge erred in refusing to permit various portions of a medical witness' deposition be admitted into evidence. There is no official record or stipulation of proceedings covering this conference. Consequently, we are unable to review this enumeration of error.
(b) The appellants allege that the trial judge erred in refusing to instruct the jury that a state patrolman's report of the collision was not in evidence. There is no indication that appellants' counsel objected to the trial judge's failure to give such a charge; nor is a request to charge on this issue included in the record. Accordingly, we are unable to review this enumeration of error. See Durrett v. Farrar, 130 Ga. App. 298 (8) (203 SE2d 265) (1973); Atlanta & W. P. R. Co. v. Armstrong, 138 Ga. App. 577 (227 SE2d 71) (1976); Code Ann. § 70-207 (a) (b).
(c) The appellants contend that the trial judge erred in holding the jury too late into the evening for deliberation and in requiring them to resume deliberations early the next morning and in not declaring a mistrial. No motion for mistrial was ever made. Furthermore, we find no abuse of discretion by the trial judge. He checked with the jury on several occasions as to the status of their deliberations, dismissing them for the evening when it became apparent that a verdict was not imminent. See Am. Family Life Assur. Co. v. Welch, 120 Ga. App. 334 (3) (170 SE2d 703) (1969).
(d) The appellants enumerate as error the fact that the jurors were allowed to have drink other than water, notwithstanding the bailiff's receiving the oath prescribed by Code § 59-717. They rely on the bailiff's affidavit that the sheriff and his deputies served coffee and soft drinks to the jurors in the courthouse basement without the permission of the trial judge.
It is neither "apparent [n]or probable" that the *446 appellants in this civil suit were prejudiced by the jurors' drinking coffee or soft drinks instead of water. See Emory University v. Lee, 97 Ga. App. 680 (2) (104 SE2d 234) (1958). We agree with the trial judge that this irregularity did not require a new trial. See Post-Tensioned Const., Inc. v. VSL Corp., 143 Ga. App. 148 (2) (237 SE2d 618) (1977).
(e) We are unable to consider the appellants' objections to the charges given to the jury before beginning their deliberations since counsel raised no objection to the charges before the verdict was rendered. The judge specifically asked each attorney if he wished to enter any objections to the charges as given, and appellants' counsel responded he had none. See Atlanta & W. P. R. Co. v. Armstrong, 138 Ga. App. 577 (2), supra; Christiansen v. Robertson, 237 Ga. 711 (229 SE2d 472) (1976); Code Ann. § 70-207 (a).
(f) Appellants contend that it was error for the trial judge to overrule a question asked appellee's daughter on cross examination. Any answer given in response to the question would have been hearsay testimony and, therefore, inadmissible. See Code § 38-301. This enumeration of error is without merit.
4. The appellants allege that the trial judge committed error when he discussed opposing counsel's objections to the depositions of certain medical witnesses outside the presence of the court reporter.
The burden for securing a transcript in a civil case rests on the attorney as no transcript is required by law. See Code Ann. § 6-805 (c). Nevertheless, appellants' counsel failed to enter any objection to this out-of-court conference and to ask that a transcript of these matters be made and included as part of the record.
On June 8, 1977, appellants' counsel filed a document showing which portions of the depositions had been ruled inadmissible in order to perfect the record for appeal. However, the document was never signed by the trial judge. See Code Ann. § 6-805 (i).
We are unable to review this enumeration of error in the absence of an objection at trial or of a record or proper stipulation of the proceedings complained of. See Herring v. Herring, 228 Ga. 492 (186 SE2d 538) (1971); Nixdorf *447 Enterprises, Inc. v. Bell, 127 Ga. App. 617 (1) (194 SE2d 486) (1972).
5. Appellants contend in their final enumeration of error that "[t]he trial judge erred in each recharge requested by jury and given [in that it] resulted in an overemphasis in favor of the defendant's contentions and did not completely and adequately cover the matter requested by the jury. . ." Counsel's sole argument on appeal is that the "enumeration of error . . . speaks, for itself."
The instructions given the jury here on signal lights and passing on the left side were correct statements of the law. The judge charged that a turn signal could be given by hand or arm or by a mechanical signal device. He explained the law regarding mechanical signal devices. He also charged the express language of Code Ann. § 68A-303 regarding "Overtaking a Vehicle on the Left." A trial judge is not required to repeat his entire charge upon request by the jury for recharge on specific issues (see O'Shields v. State, 55 Ga. 696 (4) (1876)), and we find the charges given here were adequate. This enumeration of error is without merit.
For the reasons stated above, the judgment for appellant Lonnie Burnett is affirmed. The judgment against appellant Mildred Burnett is reversed for a new trial on the issue of damages, appellee's liability having been established by the verdict for her husband.
Judgment affirmed in part and reversed in part. Shulman and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333315/ | 505 S.E.2d 576 (1998)
234 Ga. App. 148
DANIEL
v.
CORPORATE PROPERTY INVESTORS.
No. A98A1635.
Court of Appeals of Georgia.
August 31, 1998.
*577 C. Samuel Rael, Atlanta, for appellant.
Duncan & Mangiafico, Royce F. Morris, Atlanta, for appellee.
BLACKBURN, Judge.
Plaintiff Leonard Dale Daniel appeals from the trial court's order granting the defendant Corporate Property Investors' (CPI), motion to compel discovery and to dismiss plaintiff's complaint as a sanction. We affirm.
Daniel contends: (1) that the motion to compel discovery was defective as it did not contain the certification of a good faith effort required by Uniform Superior Court Rule 6.4(B); (2) that the trial court failed to make the required finding of wilfulness prior to the imposition of the sanctions; and (3) that he was denied due process because he was not provided a hearing.
"Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court's decision on such matters unless there has been a clear abuse of discretion." (Citation omitted.) Fidelity Enterprises v. Heyman & Sizemore, 206 Ga.App. 602, 603, 426 S.E.2d 177 (1992).
Daniel filed the instant action on January 3, 1997, for injuries allegedly sustained as a result of an accident which occurred while he was riding an escalator at Lenox Square Mall. On January 24, 1997, CPI answered the complaint and served interrogatories and requests for production of documents on Daniel. Daniel failed to respond to the discovery requests. In a letter dated May 5, 1997, CPI requested that Daniel provide responses to discovery. The record contains no indication of a response to this letter.
On July 21, 1997, CPI filed a motion to compel and for sanctions resulting from Daniel's failure to respond to discovery requests. Thereafter, CPI amended its motion for sanctions to include Daniel's failure to appear for his properly noticed deposition. Daniel failed to respond to either motion to compel. No request for a formal hearing was made by either party, and the trial court entered an order dismissing Daniel's case with prejudice on November 10, 1997.
1. In his first enumeration of error, Daniel contends that CPI failed to certify to the court that a good faith effort to resolve the discovery dispute was made, as required by USCR 6.4(B).[1] However, we *578 have addressed this issue previously and decided it adversely to Daniel. See Fisher v. Bd. of Commrs. of Douglas County, 200 Ga. App. 353, 354(2)(c), 408 S.E.2d 120 (1991). Therein, we determined that defense counsel's letter requesting discovery responses satisfied USCR 6.4 where the plaintiff had failed to make any response to the defendant's motion to compel. Id. We determined that USCR 6.4 "applie[d] more directly to the situation in which the parties disagree[d] over what [was] required by the discovery request or, for example, whether certain matters requested by discovery [were] privileged than to the total failure to respond to discovery." Id. Therefore, Daniel's enumeration is without merit.
2. Daniel's contention that the trial court erred in entering an order without a prior finding of wilfulness also fails. "Willfulness is implied by the total failure to respond to discovery when no reason or excuse is offered in response to a motion to compel. Schrembs v. Atlanta Classic Cars, 197 Ga. App. 450, 398 S.E.2d 712 (1990)[, aff'd, 261 Ga. 182, 402 S.E.2d 723 (1991) ]; see also Bells Ferry Landing v. Wirtz, 188 Ga.App. 344, 373 S.E.2d 50 (1988)." Fisher, supra at 354(2)(b), 408 S.E.2d 120.
Daniel's reliance on Gen. Motors Corp. v. Conkle, 226 Ga.App. 34, 40, 486 S.E.2d 180 (1997) is misplaced, as that case is physical precedent because only two judges supported the majority opinion and it is therefore not binding authority. The special concurrence disagreed that an explicit finding of wilfulness was required and noted that such finding could be implied from the trial court's order. Id. at 49, 486 S.E.2d 180. Additionally, the facts in Conkle, supra, are distinguishable from those in the present case. Therein, General Motors had partially complied with the trial court's discovery orders and had responded to Conkle's motion to compel discovery. In the present case, Daniel failed to make any effort to respond to discovery requests and also failed to respond to CPI's motion to compel. Under such a situation, an express finding of wilfulness is unnecessary. See Fisher, supra at 354, 408 S.E.2d 120.
3. In his third enumeration of error, Daniel contends that he was denied due process because the trial court dismissed his complaint without a hearing on CPI's motion to compel. However, a hearing is not always required. The Supreme Court of Georgia has held that "the trial court need not conduct a hearing on the issue of wilfulness in every case. Such a requirement serves no purpose where the trial court can otherwise determine wilfulness on the part of the party against whom the sanctions are sought." Schrembs, 261 Ga. at 182-183, 402 S.E.2d 723.
In the present case, Daniel failed to respond to CPI's motion to compel and for sanctions for the four months it remained pending prior to the trial court's order. Daniel also failed to request a hearing on such motion, nor did he comply with the discovery request. Based upon these facts, the trial court was authorized to enter its order without a hearing. Schrembs, 261 Ga. 182, 402 S.E.2d 723
Judgment affirmed.
McMURRAY, P.J., and ELDRIDGE, J., concur.
NOTES
[1] USCR 6.4(B) requires that "[p]rior to filing any motion seeking resolution of a discovery dispute, counsel for the moving party shall confer with counsel for the opposing party in a good faith effort to resolve the matters involved [and] shall also file a statement certifying that such conference has occurred and that the effort to resolve by agreement the issues raised failed." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333351/ | 505 S.E.2d 801 (1998)
233 Ga. App. 825
DAVIS
v.
The STATE.
No. A98A1340.
Court of Appeals of Georgia.
August 11, 1998.
*802 Genelle Jennings & Associates, Nicholas E. White, Hawkinsville, for appellant.
Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.
McMURRAY, Presiding Judge.
Defendant was tried before a jury and convicted of robbery and theft by taking on December 11, 1996. On March 20, 1997, defendant, acting pro se, filed a document entitled, "MOTION FOR OUT OF TIME APPEAL AND/OR EXTRAORDINARY MOTION FOR NEW TRIAL." Defendant pertinently alleges in this motion that his trial attorney was ineffective because he did not file a timely notice of appeal from defendant's judgment of conviction and sentence.
Appellate counsel, representing himself as the Pulaski County public defender, entered an appearance for defendant on December 16, 1997, declaring that he was appointed to represent defendant "in his Motion for New Trial...." On January 26, 1998, the trial court entered an order denying defendant's motion for out-of-time appeal and/or extraordinary motion for new trial, finding that defendant was advised of his appeal rights and that "defendant elected to discharge [his trial attorney], rather than have him file a motion for new trial or an appeal."
On February 11, 1998, defendant filed a notice of appeal designating that he "does hereby appeal ... from the judgment and sentence entered on December 11, 1996...." Defendant later filed an enumeration of errors and brief in the Court of Appeals of Georgia, contending the evidence adduced at trial does not support his conviction. Defendant also enumerates ineffective assistance of counsel, arguing that his trial attorney did not call any witness to corroborate defendant's trial testimony and that his trial attorney did not attempt to impeach or diminish the credibility of the State's witnesses. Defendant did not enumerate error relating to the trial court's denial of his motion for out-of-time appeal and/or extraordinary motion for new trial. Held:
Under OCGA § 5-6-38(a), a notice of appeal must be filed within 30 days after the entry of the appealable judgment, unless a motion for new trial, motion in arrest of judgment, or motion for judgment notwithstanding the verdict has been filed within that time period. This 30-day time requirement is jurisdictional and the failure to comply with it mandates dismissal of an appeal. Watson v. State, 202 Ga.App. 667, 415 S.E.2d 306. In the case sub judice, defendant did not file a motion for new trial, motion in arrest of judgment, or motion for judgment notwithstanding the verdict within 30 days after entry of his judgment of conviction and sentence. Defendant waited over three months after his conviction to file, pro se, a motion for out-of-time appeal and/or extraordinary motion for new trial. Although the order denying this motion appears to be directly appealable (Bohannon v. State, 262 Ga. 697, 425 S.E.2d 653), defendant did not designate in his notice of appeal that he was *803 appealing the denial of his motion for out-of-time appeal and/or extraordinary motion for new trial. Nor does he enumerate error relating to the trial court's reasons for denying this motion. Defendant instead enumerates error which would only have been appropriate for this Court's consideration in a timely appeal. This Court held in Balkcom v. State, 227 Ga.App. 327, 489 S.E.2d 129, that such "bootstrapping" cannot vest this Court with jurisdiction to consider potential errors which could or should have been part of a direct appeal or timely motion for new trial. Id. at 331-332, 489 S.E.2d 129, supra. Accordingly, defendant's February 11, 1998, appeal from "the judgment and sentence entered on December 11, 1996[,]" must be dismissed as untimely.
Since an attorney other than defendant's trial attorney was appointed to represent defendant before the hearing on defendant's motion for out-of-time appeal and/or extraordinary motion for new trial, it appears unnecessary for this Court to follow the Supreme Court's directives in Rowland v. State, 264 Ga. 872, 874(2), 452 S.E.2d 756.
Appeal dismissed.
BLACKBURN and ELDRIDGE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333364/ | 332 S.C. 575 (1998)
505 S.E.2d 925
Larry G. BRANCH, II and James P. Phalen, Appellants,
v.
CITY OF MYRTLE BEACH, South Carolina, Lynwood Womack (in his capacity as Fire Chief of the City of Myrtle Beach), and Charles Molony Condon, ex rel. Attorney General of the State of South Carolina, Respondents.
No. 2882.
Court of Appeals of South Carolina.
Heard June 4, 1997.
Decided August 31, 1998.
Rehearing Denied October 22, 1998.
*576 K. Douglas Thornton, of Thornton Law Firm, Georgetown; and Erick J. Genser and Kurt T. Rumsfeld, both of Mulholland & Hickey, Washington, DC, for appellants.
Julian H. Gignilliat and M. Richbourg Roberson, both of Gignilliat, Savitz & Bettis; and C. Havird Jones, Jr., Assistant Attorney General, Columbia, for respondents.
STILWELL, Judge:
Larry G. Branch, II and James P. Phalen, firefighters with the City of Myrtle Beach, brought this action for declarative and injunctive relief against the City and Fire Chief Lynwood Womack. Branch and Phalen claimed that a policy preventing supervisory firefighters from joining a labor organization whose membership includes lower-ranking employees violated South Carolina's right-to-work statute, S.C.Code Ann. §§ 41-7-10 *577 to -90 (1986). The trial court disagreed and granted the City's motion for summary judgment. We reverse and remand.
Branch and Phalen are employed as lieutenants of the City's fire department and are considered supervisory firefighters. They were members of the International Association of Fire Fighters, Local 2345, an organization which seeks to promote the interests of firefighters. They ended their membership after Womack issued the following memorandum:
1. Non-supervisory firefighters have the right to join and form any organization they wish.
2. Supervisory firefighters (those holding the rank of Lieutenant and above) may join, affiliate with[,] support, or form any organization they wish except a labor organization or union which seeks to represent the interests of non-supervisory firefighters of the City of Myrtle Beach. Such membership or affiliation or support would be a conflict of interest on the part of the supervisory firefighter.
The trial court held that the right-to-work statute did not apply to public sector employees. The court determined that, despite the use of the phrase "any employer," the legislative intent at the time the statute was enacted leads to the inescapable conclusion that it intended to exclude the state and its political subdivisions.
I.
South Carolina is one of twenty-one states that has enacted broad right-to-work guarantees by legislation or by constitutional mandate or both.[1] The South Carolina legislature *578 has declared it to be the public policy of this state "that the right of persons to work shall not be denied or abridged on account of membership or nonmembership in any labor union or labor organization." S.C.Code Ann. § 41-7-10 (1986). The specific section of the right-to-work statute at issue here provides in pertinent part:
It shall be unlawful for any employer:
(1) To require any employee, as a condition of employment, or of continuance of employment, to be or become or remain a member or affiliate of any labor organization or agency;
(2) To require any employee, as a condition of employment, or of continuance of employment, to abstain or refrain from membership in any labor organization[.]
S.C.Code Ann. § 41-7-30 (1986) (emphasis added).
Branch and Phalen contend that the plain meaning of the words "any employer" and "any employee" requires that the statute be applied to the public sector. We agree.
South Carolina courts generally have been reluctant to construe a statute where its terms are clear and unambiguous. "If a statute is clear and explicit in its language, then there is no need to resort to statutory interpretation or legislative intent to determine its meaning." Timmons v. South Carolina Tricentennial Comm'n, 254 S.C. 378, 401, 175 S.E.2d 805, 817 (1970).
The South Carolina statute states that it applies to "any employer." It does not, however, define "employer" and does not specifically state whether it applies to the state and its political subdivisions.[2] In fact, we have located only one state, Georgia, where the right-to-work law unequivocally provides that it does not apply to the state or its political subdivisions. *579 See Ga.Code Ann. § 34-6-20(2) (1998) (defining "employer" as "any person ... but shall not include the United States, a state or any political subdivision ..."); cf. Fla. Const. art. 1, § 6 (stating a person's right to work shall not be denied because of membership or nonmembership in a labor organization); Fla.Stat.Ann. § 447.201 (1997) (declaring constitutional provision applicable to public employees); Fla.Stat.Ann. § 447.17 (1997) (providing that civil remedy available to any person who may be denied employment because of membership or nonmembership in any labor union is not available to public employees). Other state right-to-work laws apply to the public sector. See Ariz.Rev.Stat. § 23-1302; Idaho Code § 44-2011; Kan. Const. art. 15, § 12; Nev.Rev.Stat. § 613.250; Utah Code Ann. § 34-34-2; Va.Code Ann. § 40.1-58.1.
Branch and Phalen also argue that if the Legislature intended to rely upon common-law sovereign immunity to exempt the state from the statute's provisions, it would have acted to make sure the state was excluded after sovereign immunity was abolished.
South Carolina's right-to-work statute was enacted in 1954 after the 1947 Taft-Hartley amendments to the National Labor Relations Act (NLRA) expressly granted states the power to legislate in the labor relations arena. See Act. No. 652, 1954 S.C. Acts 1692; see also 29 U.S.C § 164(b) (1994). The NLRA specifically excludes the state or its political subdivisions from its definition of employer. 29 U.S.C. § 152(2) (1994). In 1954, South Carolina enjoyed sovereign immunity and could not be subject to suit unless expressly allowed by statute. See Tucker v. Kershaw County Sch. Dist., 276 S.C. 401, 279 S.E.2d 378 (1981); Brooks v. One Motor Bus, 190 S.C. 379, 3 S.E.2d 42 (1939). The doctrine of sovereign immunity was abolished, in large measure, in 1985. McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985).
In determining that the right-to-work statute did not apply to the City, the trial court relied in part upon a 1964 Attorney General opinion that determined the right-to-work statute did not apply to public school teachers. See 1964 Op. S.C. Att'y Gen. 298. While an attorney general opinion may be persuasive, it is not binding precedent. See Anders v. *580 South Carolina Parole & Community Corrections Bd., 279 S.C. 206, 305 S.E.2d 229 (1983).
Once sovereign immunity was abolished in 1985, the General Assembly could have amended the right-to-work statute to exclude the state if it had so desired. In our view, it is more reasonable to assume the legislature would have done so at that time than to assume its failure to act was due to its reliance on an attorney general's opinion published twenty-one years prior to sovereign immunity's abolition. Indeed, it seems the General Assembly would have had serious reservations concerning the viability of that opinion in light of the abolition of sovereign immunity. See Berkebile v. Outen, 311 S.C. 50, 53, 426 S.E.2d 760, 762 (1993) ("A basic presumption exists that the legislature has knowledge of previous legislation when later statutes are passed on a related subject.").
Giving the words of the statute their plain meaning would be consistent with the overall intent behind South Carolina's right-to-work statute, particularly in view of the abolition of sovereign immunity. There would be no absurd result if public employers were expected to follow the same rules as private employers. Therefore, absent an absurd result flowing from the statute's plain language, we must follow the plain meaning of the statute. See City of Columbia v. Niagara Fire Ins. Co., 249 S.C. 388, 154 S.E.2d 674 (1967) (holding a strict construction of the licensing ordinance under consideration would have yielded a result completely inconsistent with the true intent and meaning of the ordinance).
II.
The City contends this case should be affirmed even if we find the right-to-work statute applicable to public employment because the policy only prohibits supervisory firefighters from belonging to the same union as their subordinates and that this does not violate the policy.
The trial court's order stated:
Because I today hold the right-to-work statute inapplicable to the State of South Carolina and its political subdivisions, this decision does not reach the questions of the Act's *581 applicability to supervisors in the public sector, nor the supervisory status of the plaintiffs in this action.
Inasmuch as we reverse the court's ruling and find that the right-to-work statute applies to the public sector, we must remand to the trial court for a determination regarding the remaining issues not ruled on, specifically whether the City's policy of preventing supervisory employees from being members of the same labor organization or union as non-supervisory employees is a permissible public policy within the context of the right-to-work law.
REVERSED AND REMANDED.
HEARN, J., concurs.
CURETON, J., concurs in separate opinion.
CURETON, Judge (Concurring):
I agree with the majority that South Carolina's Right to Work Act (Act), S.C.Code Ann. §§ 41-7-10 to -90 (1986), applies to the City of Myrtle Beach.
In general, statutes governing labor relations between employers and employees are construed to apply only to private industry and not to public employment. School Committee of the Town of Easton v. Easton Teachers Association, 398 A.2d 1220 (Maine 1979); Retail Clerks Local 187 AFL-CIO v. University of Wyoming, 531 P.2d 884 (Wyo.1975); 51 C.J.S. Labor Relations, § 33 (1967). Public employees have neither the right to strike nor the right to collectively bargain unless such rights are specifically provided by statutory law. State Board of Regents v. United Packing House Food and Allied Workers, Local No. 1258, 175 N.W.2d 110 (Iowa 1970); Retail Clerks Local 187, 531 P.2d 884; see also Bateman v. South Carolina State Ports Authority, 298 F. Supp. 999 (D.S.C.1969). South Carolina has no statute authorizing public employees to bargain collectively or to strike. See 1989 Op. S.C. Att'y Gen. No. 121; see also Dennis R. Nolan, Public Employee Unionism in the Southeast: The Legal Parameters, 29 S.C. L.Rev. 235, 287 (1978).
The cases make a distinction between the right of public employees to collectively bargain and strike on the one hand, and their right to organize for their mutual interest on the *582 other hand. State Board of Regents, 175 N.W.2d 110. This distinction is amply made in N.J. Turnpike Auth. v. American Federation of State Employees, 83 N.J.Super. 389, 200 A.2d 134, 138 (N.J.Super.Ct. Ch. Div., 1964), wherein the court, with approval quoted from an opinion of the New Jersey Attorney General:
The concept of collective bargaining, as generally understood and applied in the field of private industry, implies bargaining sanctions and weapons not admissible to public employees, such as the right to strike and other incidents of the private employment relationship not appropriate in the public employment field. It also implies two bargaining entities of co-equal status, each with unlimited power to enter into binding commitments. This does not apply in the case of the state in relation to its employees.
Although the Turnpike is not obliged to engage in collective bargaining, it is under an affirmative duty to meet with its employees or their chosen representatives and consider in good faith the grievances and proposals. However, any decision reached must be the result of the independent judgment of Turnpike, taking into consideration, inter alia, the grievances and proposals of its employees.
South Carolina's Right to Work Act has as its basic purpose the preservation of the state's employees' right to exercise freedom in choosing employment without regard to union membership. 14 S.C.Juris. Labor Relations, § 16 (1992). Encompassed within that right is the right of a public employee to belong[1] to a labor organization. See 29 S.C.L.Rev. 235, 239. This right stems from the first amendment's protection of the freedom of association, made applicable to the states by the fourteenth amendment. Id. I see no compelling reason why the Act, which as to the provision in issue, codifies this right of association, should not apply to public employees.
The city argues it is obvious the legislature did not intend the Act to apply to the state and its political subdivisions at the time of its adoption in 1954 because the Act includes provisions inconsistent with the public policy and law of this *583 state in 1954. Included among these provisions are provisions for actual damages, punitive damages and criminal sanctions enforceable against the culpable employer. It is true that punitive damages are not recoverable against a state or its political subdivisions. Macmurphy v. S.C. Dep't of Highways & Pub. Transp., 295 S.C. 49, 367 S.E.2d 150 (1988). It is also true that criminal sanctions are inapplicable to municipalities. Nevertheless, the Act does contain remedies, such as injunctive relief, restraining orders and actual damages awards which may be appropriate against the state and its political subdivisions.
The Right to Work Act contains a savings clause which validates the remainder of the Act should certain provisions be found invalid. I would therefore respond to the city's argument regarding the inconsistent provisions of the Act, such as the provision for criminal sanctions and punitive damages, by noting that if these provisions are unenforceable against a municipality, then they may simply be disregarded as unenforceable. In any event, they should not provide a complete shield to the applicability of the Act to public employers.
NOTES
[1] See Ala.Code § 25-7-33 (1992); Ariz. Const. art. XXV (1982); Ariz. Rev.Stat.Ann. § 23-1302 (1995); Ark. Const. art. 34, § 1 (1944); Ark. Code Ann. § 11-3-303 (1996); Fla. Const. art. 1 (1991), § 6; Ga.Code Ann. § 34-6-21 (1998); Idaho Code § 44-2001 (1997); Iowa Code § 731.1 to 731.2 (1993); Kan. Const. art. 15, § 12 (1988); La.Rev.Stat. Ann. § 23:981 (1985); Miss. Const. art. 7, § 198-A (1960); Miss.Code Ann. § 71-1-47(b), (c) (1995); Neb. Const. art. XV, § 13 (1946); Neb. Rev.Stat. § 48-217 (1995); Nev.Rev.Stat. § 613.250 (1996); N.C.Gen. Stat. § 95-78 to -81 (1997); N.D.Cent.Code § 34-1-14 (1987); S.C.Code Ann. § 41-7-30 (1986); S.D. Const. art. VI, § 2 (1946); S.D. Codified Laws Ann. § 60-8-3 (1993); Tenn.Code Ann. § 50-1-201 (1991); Tex.Code Ann. § 101-052 (1996); Utah Code Ann. § 34-34-2 (1997); Va.Code Ann. § 40.1-58 to -58.1 (1994); Wyo.Stat. § 27-7-110 (1997).
[2] In the majority of states the right-to-work laws do not address the issue of whether the laws apply to the state. These states include Alabama, Arkansas, Iowa, Louisiana, Mississippi, Nebraska, North Carolina, North Dakota, South Carolina, South Dakota, Tennessee, Texas and Wyoming.
[1] I do not suggest in any way that a municipality may not legally prohibit its supervisory employees from joining the same labor organization as its non supervisory employees. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750599/ | 861 S.W.2d 925 (1993)
Michael Andrea RICE, Appellant,
v.
The STATE of Texas, Appellee.
No. 962-92.
Court of Criminal Appeals of Texas, En Banc.
September 29, 1993.
Steve Hebert, Baytown, for appellant.
Michael R. Little, Dist. Atty., Anne Streit, Asst. Dist. Atty., Liberty, Robert Huttash, State's Atty., and Matthew W. Paul, Asst. State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
McCORMICK, Presiding Judge.
A jury convicted appellant of burglary of a building with intent to commit theft and assessed punishment at confinement for ninety-nine years. See V.T.C.A., Penal Code, Section 30.02(a)(1). Appellant previously was convicted of theft. See V.T.C.A., Penal Code, Section 31.03. The State subsequently prosecuted appellant for the present offense. Both offenses arose out of the same transaction. In a direct appeal to the Beaumont Court of Appeals, appellant claimed in a single point of error that his conviction for the present offense violates the double jeopardy clause of the Fifth Amendment to the United States Constitution, and Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990). The Court of Appeals disagreed, and affirmed the conviction. Rice v. State, 831 S.W.2d 599 (Tex.App.-Beaumont 1992). We granted appellant's petition for discretionary review to address the double jeopardy question. We will affirm.
The Supreme Court recently overruled Grady in United States v. Dixon, 509 U.S. ___, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993). In successive prosecution contexts, we apply the "same-elements" test set out in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932); see also Dixon, 509 U.S. at ___, 113 S.Ct. at ___. This test inquires whether each offense contains an element not contained in the other; if not, double jeopardy bars a successive prosecution. See id.
Appellant's conviction on the burglary charge following his conviction on the theft *926 charge is not barred under Blockburger because the burglary and the theft offenses contain an element the other does not contain. The theft charge requires the State to prove appropriation of property without the owner's effective consent; the burglary charge does not. Compare Section 31.03 with Section 30.02(a)(1). The burglary charge requires the State to prove entry into a building not open to the public without effective consent of the owner; the theft charge does not. Compare Section 30.02(a)(2) with Section 31.03.
The Court of Appeals' judgment is affirmed.
CLINTON, MILLER and MALONEY, JJ., concur.
WHITE, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3080309/ | NO. 12-10-00167-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JOSEPH P. PRITCHETT,
§ APPEAL FROM THE 87TH
APPELLANT
V.
§ JUDICIAL
DISTRICT COURT
MIKE GAINES AND JANET
GAINES,
AS NEXT FRIENDS FOR MARTHA
MICHELLE GAINES, NON COMPOS
MENTIS, APPELLEES
§ ANDERSON COUNTY, TEXAS
MEMORANDUM
OPINION
Joseph
P. Pritchett appeals the trial court’s judgment in favor of Martha Michelle
Gaines, non compos mentis. In two issues, Pritchett challenges the
legal and factual sufficiency of the evidence and the trial court’s charge. Gaines
raises one cross-issue related to the trial court’s charge. We reverse and
render.
Background
Michelle
Gaines was stopped at an intersection in Palestine, Texas. When her light
turned green, she entered the intersection. Unfortunately, Kenneth Woodworth
ran through a red light into the same intersection and plowed into Gaines’s
vehicle. Gaines was driving a car, and Woodworth was driving a tractor-trailer.
The trailer portion was an old oil rig. Gaines suffered serious injuries.
Benny
Joe Adkinson, Woodworth’s employer, owned the tractor-trailer that Woodworth
was driving. The trailer should not have been on the road because it had no
brakes, and Woodworth should not have been driving the tractor-trailer because
he had no commercial driver’s license. Nevertheless, Adkinson told Woodworth
to drive the tractor-trailer from White Oak, Texas, to Corpus Christi, Texas.
Gaines’s parents, Mike and Janet, individually and as next
friends of Gaines, sued Woodworth, Adkinson, and Joseph Pritchett, claiming
that all were liable: Woodworth because he was negligent in driving the
vehicle, Adkinson because he was negligent in allowing Woodworth to drive the
vehicle, and Pritchett because he had entered into a joint enterprise with
Adkinson related to the oil rig.[1]
According to Adkinson and Pritchett, Pritchett had no
connection to the oil rig. But the Gaineses did not believe them. The Gaineses
discovered that Adkinson was taking the oil rig to Pritchett’s yard, and
believed the two had agreed to work together to either blueprint or sell the
rig.[2] The oil rig eventually made
its way to Pritchett’s yard, and many months after the accident, it was
destroyed.
The case proceeded to trial. After the conclusion of the
evidence, the trial court found that Gaines had proved her case against
Woodworth and Adkinson as a matter of law. The trial court asked the jury to
determine the damages sustained by Gaines and whether Pritchett should be held
liable for those damages based on a joint enterprise with Adkinson. The jury
awarded damages to Gaines and found that a joint enterprise did exist between
Adkinson and Pritchett. The trial court rendered judgment in accordance with
the jury’s verdict. Pritchett appealed.[3]
Joint Enterprise
In
his first issue, Pritchett argues that there is no evidence to support the
jury’s finding of a joint enterprise between him and Adkinson related to the
oil rig.
Standard
of Review
When
reviewing a jury’s verdict for legal sufficiency, we may set aside the verdict
only if the evidence at trial would not enable reasonable and fair-minded
people to reach the verdict under review. City of Keller v. Wilson,
168 S.W.3d 802, 827 (Tex. 2005). In making this determination, we must credit
favorable evidence if reasonable jurors could, and disregard contrary evidence
unless reasonable jurors could not. Id. Jurors are the
sole judges of the credibility of the witnesses and the weight to give their
testimony. Id. at 819. They may choose to believe
one witness and disbelieve another, and reviewing courts may not impose their
own opinions to the contrary. Id. Most credibility
questions are implicit rather than explicit in a jury’s verdict. Id.
Accordingly, reviewing courts must assume jurors decided all of them in favor
of the verdict if reasonable human beings could do so. Id.
It
is not necessary to have testimony from both parties before jurors may
disbelieve either. Id. at 819-20. Jurors may
disregard even uncontradicted and unimpeached testimony from disinterested
witnesses. Id. at 820. Jurors are not free to
believe testimony that is conclusively negated by undisputed facts. Id.
But whenever reasonable jurors could decide what testimony to discard, a
reviewing court must assume they did so in favor of their verdict, and
disregard it in the course of legal sufficiency review. Id.
In
addition, it is the province of the jury to resolve conflicts in the evidence. Id.
Consequently, we must assume that, where reasonable, the jury resolved
all conflicts in the evidence in a manner consistent with its verdict. Id.
If reasonable jurors could resolve conflicting evidence either way, reviewing
courts must presume they did so in favor of the prevailing party, and disregard
the conflicting evidence in their legal sufficiency review. Id.
at 821.
However,
evidence cannot be taken out of context so that it seems to support a finding
when it actually does not. See id. at 812. For instance,
if a witness testifies, “I did not do that,” a jury can disregard the whole
statement but cannot disregard the middle word alone. See id.
Findings must be based on more than speculation to be legally sufficient. See
id. at 827. Finally, under the equal inference rule,
evidence of circumstances equally consistent with two facts is legally
insufficient of either. See id. at 813.
Regarding
factual sufficiency challenges, where a party who did not have the burden of
proof on an issue asserts that a jury’s verdict is contrary to the evidence, we
must overrule the complaint unless the verdict is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and manifestly
unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). In conducting
our review, we must consider all of the evidence that supports and that which
is contrary to the verdict. Sosa v. City of Balch Springs, 772
S.W.2d 71, 72 (Tex. 1989). We must remember that the jury is the sole judge of
the credibility of the witnesses. See Santa Fe Petroleum, L.L.C. v. Star
Canyon Corp., 156 S.W.3d 630, 638 (Tex. App.–Tyler 2004, no pet.) The
jury may take into consideration all of the facts and surrounding circumstances
in connection with the testimony of each witness and accept or reject all or
any part of that testimony. See id. Where enough evidence is
before the jury so that reasonable minds could differ on the meaning of the
evidence, or the inferences and conclusions to be drawn from the evidence, we
may not substitute our judgment for that of the jury. See id.
Applicable
Law
Parties
to a joint enterprise are agents of each other, and thus, liable for the
negligent acts of each other. Tex. Dep’t of Transp. v. Able, 35
S.W.3d 608, 613 (Tex. 2000). Parties form a joint enterprise when they (1)
enter into an express or implied agreement, (2) with a common purpose, (3) a
community of pecuniary interest in that purpose, and (4) an equal right to a
voice in the direction of the enterprise giving each an equal right of control.
Id.
The elements necessary to form a binding contract are (1) an
offer, (2) acceptance of the offer, (3) a meeting of the minds, (4) the
parties’ consent to the terms, (5) execution and delivery with the intent that
it be mutual and binding, and (6) consideration. Advantage Physical
Therapy, Inc. v. Cruse, 165 S.W.3d 21, 24 (Tex. App.–Houston [14th
Dist.] 2005, no pet.). Whether an agreement was reached is a question of
fact. Id. A common pecuniary interest is a monetary interest shared
without special or distinguishing characteristics among the members of the
group. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 531
(Tex. 2002). An equal right to a voice in the direction of the enterprise
giving each an equal right of control means an authoritative voice, some right
to do more than make suggestions that could be adopted or rejected. Triplex
Commc’ns, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex. 1995).
The loss or destruction of evidence may seriously impair a
party’s ability to present its case. Tex. Elec. Coop. v. Dillard,
171 S.W.3d 201, 208 (Tex. App.–Tyler 2005, no pet.) (citing Wal-Mart
Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003)).
Evidence spoliation is not a new concept. For years
courts have struggled with the problem and devised possible solutions.
Probably the earliest and most enduring solution was the spoliation inference
or omnia praesumuntur contra spoliatorem: all things are presumed
against a wrongdoer. In other words, within the context of the original
lawsuit, the factfinder deduces guilt from the destruction of presumably
incriminating evidence.
Trevino
v. Ortega, 969 S.W.2d 950, 952 (Tex. 1998) (internal citations
omitted).
“[W]hen
spoliation occurs, there must be adequate measures to ensure that it does not
improperly impair a litigant’s rights . . . .” Id. at
953. It is simple, practical, and logical to rectify any improper conduct
within the context of the lawsuit in which it is relevant. Id.
“As with any discovery abuse or evidentiary issue, there is no one remedy that
is appropriate for every incidence of spoliation; the trial court must respond
appropriately based upon the particular facts of each individual case.”[4] Id.
Discussion
Pritchett argues that the evidence is legally and factually
insufficient as to every element of joint enterprise. Because our
determination of the fourth element (i.e., the equal right to control the joint
enterprise) is dispositive of the appeal, we focus our analysis there.
Adkinson purchased the oil rig from B.I. Owens. According to
the sales receipt, Adkinson was the sole owner, and Pritchett owned no part of
the rig. But Adkinson told Owens that he was buying the rig to blueprint it. Adkinson
also spoke to Pritchett about blueprinting the oil rig. However, Adkinson denied
that he and Pritchett ever agreed to blueprint the rig. And Pritchett likewise
denied any plan with Adkinson to blueprint the rig. Pritchett testified that
he could not decide whether he wanted an interest in the rig until after he had
the opportunity to inspect the rig.
Pritchett saw a photograph of the rig before the accident.
He also was on Adkinson’s property just four days before the accident, but he
claimed that he did not see the rig then. Also, Pritchett knew that Adkinson
was taking the rig to Pritchett’s yard near Corpus Christi. After the
accident, Adkinson called Pritchett to tell him about the accident.
Gaines argues that other events after the accident evidence
the joint enterprise between Adkinson and Pritchett. Pritchett lent Adkinson a
substantial amount of money, and there was significant evidence that Adkinson
was not creditworthy. Gaines believes this money led Adkinson to lie for
Pritchett. She also argues that it shows a willingness on the part of
Pritchett to be dishonest. And Gaines presented evidence that Pritchett and
Adkinson were not honest to the jury.
Finally, Gaines argues that Pritchett was guilty of
spoliation of evidence and that the relevant inferences from this conduct
support the finding of joint enterprise. Months after the accident, the oil
rig was delivered to Pritchett’s yard. Many months later, and after an initial
inspection by the Gaineses’ attorney, Adkinson told Pritchett that he was
taking the oil rig from Pritchett’s yard to cut it up into scrap. Pritchett
knew that the oil rig was evidence, and so he told his attorney about
Adkinson’s intentions to take the rig, but he did not tell him that Adkinson
planned to destroy the rig. Pritchett’s attorney told the Gaineses’ attorney
what he knew, but he did not convey that Adkinson planned to destroy the rig
because Pritchett had not told him. Of course, Pritchett points out that Adkinson
owned the rig, and thus he could not keep Adkinson from taking it.
Gaines
argues that this evidence is similar to the evidence in Able. See
generally Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608
(Tex. 2000). We disagree. In that case, the Ables collided with another
vehicle traveling the wrong way in an HOV lane. Id. at
610. The Ables sued several entities, including the Texas Department of
Transportation (TxDOT) and the Houston Metropolitan Transit Authority (Metro).
Id. One of the Ables’ theories for liability on the part of
TxDOT was that Metro was negligent in its operation and maintenance of the HOV
lane and TxDOT was in a joint enterprise with Metro. Id. The
jury agreed with this theory, and TxDOT appealed. Id.
The Texas Supreme Court found legally sufficient evidence of
a joint enterprise. Id. at 616. However, TxDOT had a
contractual right under its Master Agreement with Metro to participate in the
operation and maintenance of the HOV lane. Id. at
615. TxDOT and Metro had agreed to work together to promulgate an “Operations
Plan” for the roadways subject to the agreement. Id. at
616. And amendments to the Operations Plan could only be made with the consent
of both TxDOT and Metro. Id. These contractual rights gave
TxDOT “a voice and right to be heard regarding matters affecting the day-to-day
operations of the [HOV lane].” Id. Here, however, there is no
evidence describing any particular provisions of the agreement, or setting out
any responsibilities under the agreement between Pritchett and Adkinson. In
fact, there is scant evidence of any agreement at all.
Instead, we believe the facts of this case are more closely
aligned with those in Triplex. See generally Triplex
Commc’ns, Inc. v. Riley, 900 S.W.2d 716 (Tex. 1995). There, as part of
a nightclub’s “ladies’ night” promotion, a radio station conducted a broadcast
from a nightclub. Id. at 717. During one such ladies’
night, Joseph Wayne Stephens was served a clearly excessive amount of alcohol.
Id. at 718. As he tried to drive home, he hit another car, and
ricocheted into Beaumont police officers James Riley and Mary Gray as they were
working another accident. Id. Riley and Gray were injured, and
they sued the nightclub, the bartender who served Stephens, and the radio
station. Id. The trial court refused to allow Riley and Gray to
proceed on a theory of joint enterprise between the radio station and the
nightclub. Id. After the intermediate appellate court reversed
the trial court, the radio station appealed to the Texas Supreme Court. Id.
The Texas Supreme Court found the evidence legally
insufficient. Id. at 719. Riley and Gray placed great
emphasis on the fact that the drink prices for ladies’ night corresponded to
the radio frequency of the radio station. Id. However, the
nightclub set the drink prices, was licensed to sell alcohol, and maintained
absolute control over the serving of all alcohol. Id. The
nightclub decided who could stay and who could be served. Id.
No evidence was presented that the radio station had a contractual right of
control or exercised any right of control over who was served or rejected. Id.
Finally, the radio station’s general participation in the event was deemed
legally insufficient evidence of a right of control. Id.
Similarly,
in this case, none of the evidence shows that Pritchett had an equal right to
control the alleged enterprise. In fact, there is less evidence here than in Triplex,
because the evidence here does not indicate that Pritchett could make
suggestions that Adkinson could adopt or reject. The evidence shows only a
conversation about potential blueprinting of the rig and that the rig was being
taken to Pritchett’s yard. Quite simply, that is legally insufficient evidence
of a joint enterprise.
Gaines’s attempts to bolster the evidence with inferences—specifically
evidence of the lack of honesty exhibited by Pritchett and Adkinson in their
testimony, and Pritchett’s assistance in the spoliation of evidence—fail to
satisfy the legally sufficient evidence threshold. First, the testimony and
evidence do nothing more than “give rise to any number of inferences, none more
probable than another.” See Blount v. Bordens, Inc., 910 S.W.2d
931, 933 (Tex. 1995) (holding no evidence of community of pecuniary interest
element of joint enterprise theory in car wreck when only evidence led to
equally plausible inferences). Second, even assuming Pritchett is partially
responsible for Adkinson’s destruction of the rig, nothing on the rig could
show whether Pritchett and Adkinson had an equal right to control the
enterprise months earlier. And third, while the jury certainly could disregard
the testimony of Pritchett and Adkinson, their testimony is not evidence of the
opposite position. City of Keller, 168 S.W.3d at 812 (If a
witness testifies, “I did not do that,” a jury can disregard the whole
statement but cannot disregard the middle word alone.).
In
light of the record before us, we conclude that Gaines presented no evidence
that Pritchett and Adkinson had an equal right to a voice in the direction of
an enterprise relating to the oil rig giving each an equal right of control. Therefore,
we hold that the evidence is not legally sufficient to support the jury’s
verdict that Pritchett and Adkinson had engaged in a joint enterprise with
respect to the oil rig.
We sustain that portion of Pritchett’s first issue related to
the legal sufficiency of the evidence.
Remaining Issues
Because we have sustained Pritchett’s first issue related to
legal sufficiency, we do not address Pritchett’s second issue. See Tex. R. App. P. 47.1. Further, Gaines,
in a cross-issue, argues that we should remand the case so that the trial court
can instruct the jury as to spoliation. However, we have considered the
evidence of spoliation and determined that it constituted no evidence that
Pritchett had an equal right to a voice in the direction of the enterprise
giving him an equal right of control. Because there is no evidence of an essential
element of Gaines’s claim of joint enterprise, the trial court should not have
submitted the case to the jury. See Triplex, 900 S.W.2d at 719.
Thus, we need not address Gaines’s argument regarding charge error in failing
to submit her requested spoliation instruction to the jury. See Tex. R. App. P. 47.1.
Disposition
Having
sustained Pritchett’s first issue, we reverse the trial court’s
judgment and render judgment in favor of Pritchett and against
Gaines such that Gaines takes nothing from Pritchett as a result of this suit.
Brian Hoyle
Justice
Opinion delivered July 13, 2011.
Panel
consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
[1] Shortly before the trial began,
Mike and Janet Gaines nonsuited their individual claims, leaving only Martha
Michelle Gaines’s claim brought through her parents as next friends against the
defendants. See Tex. R. Civ. P. 44;
see also Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d
517, 519 (Tex. 1984) (“In a suit by a ‘next friend,’ the real party plaintiff
is the child and not the next friend.”).
[2]
“Blueprinting” is a process used to copy the mechanical assemblies of the oil
rig so that the same designs can be repeated on other rigs.
[3]
Woodworth and Adkinson did not appeal the trial court’s judgment against them; therefore,
neither is a party to this appeal.
[4] The supreme court has explained
that
[e]vidence may be unavailable for
discovery and trial for a variety of reasons. Evidence may be lost, altered or
destroyed willfully and in bad faith or it may be lost for reasons completely
innocent. Sometimes, lost evidence may be easily replicated, or it may be so
marginal that it has little or no effect on the outcome of the case. On other
occasions, the loss or destruction of evidence may seriously impair a party’s
ability to present its case. A trial judge should have discretion to fashion
an appropriate remedy to restore the parties to a rough approximation of their
positions if all evidence were available. These remedies must generally be
fashioned on a case-by-case basis.
Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003)
(internal citations omitted). | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1333478/ | 241 S.E.2d 854 (1978)
STATE of North Carolina
v.
Kenny Ray WARREN.
No. 7725SC612.
Court of Appeals of North Carolina.
March 7, 1978.
*857 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Sandra M. King, Raleigh, for the State.
Patton, Starnes & Thompson, P. A., by Thomas M. Starnes, Morgantown, for defendant-appellant.
PARKER, Judge.
Defendant's first assignment of error was directed to the court's overruling of his objection to the evidence obtained by the search of the van. Defendant did not discuss this assignment of error in his brief. Accordingly, it is deemed abandoned. Rule 28(a), North Carolina Rules of Appellate Procedure.
Defendant assigns error to the denial of his motions for directed verdict made on the grounds that there was insufficient evidence to justify submission of the cases to the jury. There was ample evidence to show that the crimes with which defendant was charged were committed by some one. The only question is whether there was sufficient evidence to show that it was the defendant who committed them. We hold that there was.
"It is the general rule in this State that one found in the unexplained possession of recently stolen property is presumed to be the thief. This is a factual presumption and is strong or weak depending on circumstancesthe time between the theft and the possession, the type of property involved, and its legitimate availability in the community." State v. Raynes, 272 N.C. 488, 158 S.E.2d 351; State v. Allison, 265 N.C. 512, 144 S.E.2d 578; Strong, N.C. Index, 2d, Larceny, § 5. To give rise to this presumption, it is not necessary that the stolen property be found actually in the hands of or on the person of the accused, it being sufficient if it was found in a container or place of deposit under his exclusive personal control.
State v. Lewis, 281 N.C. 564, 567, 189 S.E.2d 216, 219 (1972). In addition, where, as in the present case, there is sufficient evidence that a building has been broken into and entered and that property has been stolen therefrom by such breaking and entering, then a presumption of fact arises that one found in the unexplained possession of the stolen property soon after the breaking and entering is guilty both of the larceny of the breaking and entering. State v. Allison, 265 N.C. 512, 144 S.E.2d 578 (1965); State v. Blackmon, 6 N.C.App. 66, 169 S.E.2d 472 (1969). Giving the State the benefit of these factual inferences and viewing the evidence in the light most favorable to the State, we find the evidence in the present case sufficient to carry the cases to the jury.
There was uncontradicted evidence that the Watson and the Hollar homes were broken into, one on 1 September and the other on 10 September 1976, and that a large and varied assortment of furnishings and other articles were stolen after each such breaking and entering. There was uncontradicted evidence that a large number of these articles were assembled in a cache in a white van. As to the goods stolen from the Hollar residence, there was evidence from which the jury could find that this occurred at some time between 6:45 a. m. on 10 September 1976, when Mr. and Mrs. Hollar left their residence to go to work, and "late in the morning" of the same day, which was when the informant stated to the SBI agent that he first saw the van with its cache of stolen goods. (Defense *858 counsel placed this latter information before the jury by his cross-examination of the State's witness, SBI Agent Suttle, the officer to whom the confidential informant gave his report; no motion to strike was made, and the jury was entitled to consider the evidence concerning the confidential informant's statements to Agent Suttle for whatever probative value it might have. Similarly, the court could properly consider this evidence in ruling on the defense motions for directed verdict.) There was evidence that the police maintained a continuous watch over the cache of stolen goods from 5:30 p. m. on the day the Hollar residence was broken into until 2:00 p. m. the next day, when defendant came to the cache, entered the van, and took possession of the van and its contents. He was the first person observed by the police to do so.
Thus, the evidence was sufficient to support a jury finding that defendant had possession of the stolen goods and exercised control over them recently after they had been stolen. Such a finding would in itself support inferences of fact, which the jury might draw, that defendant was the thief and that he had participated in the breakings and enterings by which the goods had been obtained. Evidence that the stolen goods cached in the van were not in defendant's actual possession for a portion of the time after the last breaking and entering would not destroy the inferences which the jury might legitimately draw from defendant's subsequent possession of the recently stolen goods.
In contending that the inferences should not be permitted in the present case, defendant's counsel calls attention to the following statement in State v. Patterson, 78 N.C. 470, 472-73 (1878);
The possession of stolen property recently after the theft, and under circumstances excluding the intervening agency of others, affords presumptive evidence that the person in possession is himself the thief, and the evidence is stronger or weaker, as the possession is nearer to or more distant from the time of the commission of the offense.
He stresses the portion of the quoted statement referring to "circumstances excluding the intervening agency of others," and he calls attention to similar statements in later cases. Relying on this formulation of the so-called "doctrine of recent possession," he contends that the circumstances of the present case do not exclude the intervening agency of others and for that reason the inferences should not be permitted in this case. We point out, however, that in no case in which the doctrine is invoked will the evidence completely and positively exclude the possibility of "the intervening agency of others." Evidence to that effect would make it unnecessary to invoke the doctrine. By its very nature, the doctrine is useful only when the defendant's guilt cannot be established by direct evidence of his presence at the scene of the crime and of his participation therein. Thus, where the doctrine is invoked, there must always be a slight gap in the State's evidence failing to completely account for the possession of the stolen goods at every moment between the actual commission of the crime and the discovery of the goods in a defendant's possession, thereby making it impossible to completely exclude the possibility of some intervening agency.
We think the more accurate formulation of the doctrine is that contained in State v. Jackson, 274 N.C. 594, 597, 164 S.E.2d 369, 370 (1968):
Evidence or inference of guilt arising from the unexplained possession of recently stolen property is strong, or weak, or fades out entirely, on the basis of the time interval between the theft and the possession. . . . The possession, in point of time, should be so close to the theft as to render it unlikely that the possessor could have acquired the property honestly. (Emphasis added.)
Other evidence in the present case lends support to the inferences arising from defendant's possession of the recently stolen property. There was evidence that the van had been in defendant's possession as early as 1 September 1976, the date of the break-in of the Watson residence, and that he may *859 have continued to maintain control over it to 10 September 1976, the date of the break-in of the Hollar residence. Admittedly, this evidence does not exclude the possibility of the intervening agency of others, but it tends to negate that possibility and it supports the inference that defendant was the thief. Whether the evidence showed defendant guilty beyond a reasonable doubt was for the jury to determine; all that the court was called upon to determine was whether it was sufficient to take the cases to the jury. State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956). We agree with the trial court that it was.
Defendant assigns error to the court's rulings sustaining the district attorney's objections to questions directed by defense counsel during cross-examination of the SBI agent regarding the identity of the confidential informant. The prosecution is privileged to withhold the identity of an informant unless the informant was a participant in the crime or unless the informant's identity and testimony are essential to a fair determination of the case or are material to a defendant's defense. State v. Ketchie, 286 N.C. 387, 211 S.E.2d 207 (1975); State v. Brown, 29 N.C.App. 409, 224 S.E.2d 193 (1976); State v. Parks, 28 N.C.App. 20, 220 S.E.2d 382 (1975). In the present case the court conducted a voir dire examination of the SBI agent concerning his confidential informant. During this examination the agent testified that he did not have any information that his informant participated in or witnessed either of the break-ins involved in this case nor did the agent have any reason to suspect that he did. The agent also testified that he had no reason to suspect that his informant had driven the van. On this record there is no showing of defendant's need for disclosure of the informant's identity, and we find no error in the Court's refusal to require the disclosure.
The only other assignment of error brought forward in defendant's brief relates to the Court's instructions to the jury defining and applying the "doctrine of recent possession." We have carefully examined the charge and find that the court correctly and adequately applied the law arising on the evidence in this case. In defendant's trial and in the judgments entered we find
No Error.
BRITT and VAUGHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333483/ | 144 Ga. App. 575 (1978)
241 S.E.2d 462
COLE
v.
ATLANTA GAS LIGHT COMPANY.
54774.
Court of Appeals of Georgia.
Submitted October 31, 1977.
Decided January 23, 1978.
Ridley & Nordin, John H. Ridley, for appellant.
Hansell, Post, Brandon & Dorsey, Albert G. Norman, Jr., for appellee.
SMITH, Judge.
The appellant's amended complaint alleged a slanderous publication distinct from that named in the original complaint; hence, the trial court correctly concluded that the amendment would not relate back to the date of the original complaint so as to bring the amended claim within the statute of limitation. We affirm.
The appellant, Cole, was employed by the appellee, Atlanta Gas Light Co., until his dismissal on February 11, 1975. On August 18, 1975, appellant sued appellee for slander, alleging that on the day of his dismissal, *576 February 11, appellee's agents had called him "dishonest, a liar, and disloyal to the company." For reasons immaterial here, the trial court granted summary judgment against the appellant on July 16, 1976; however, the appellant was given ten days in which to amend his complaint. On July 22, 1976, appellant filed an amended complaint which alleged the same slanderous remarks, but which changed the dates they allegedly were made to April, 1975, and which changed, in some cases, the name of appellee's agent who made the remarks. After accepting both written and oral arguments, the trial court concluded that the amendment referred to transactions distinct from the transactions alleged in the original complaint. We agree, and since the amendment therefore could not relate back to the original complaint in order to bring the action within the one year statute of limitation (Code § 3-1004), we affirm the trial court's grant of appellee's motion for judgment on the pleadings.
Civil Practice Act § 15 (c) (Code Ann. § 81A-115 (c)) allows an amendment to relate back to the date of the original pleading when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Georgia case law interpreting this section is somewhat sparse, so our courts have frequently referred to federal constructions of the identical federal rule. E.g., Gordon v. Gillespie, 135 Ga. App. 369 (217 SE2d 628) (1975); Downs v. Jones, 140 Ga. App. 752 (231 SE2d 816) (1976). In Hartmann v. Time, Inc., 64 FSupp. 671 (E.D.Pa. 1946), an amendment alleging a separate publication of the same libelous statement alleged in the original complaint did not state a claim arising "out of the conduct, transaction, or occurrence set forth" in the original pleading. See also Pendrell v. Chatham College, 386 FSupp. 341, 344 (W.D.Pa. 1974). At the very best, the amendment in issue here charged merely a reaffirmation of the slanderous statement charged in the original complaint. More likely, in the trial court's words, the amendment "seeks in reality to claim relief upon an entirely separate incident, occurring under distinctly separate circumstances, and *577 involving distinctly separate persons." Either way whether alleging republication of an old slander, or publication of a new slander altogether the amendment did not set forth claims arising out of the conduct, transaction, or occurrence set forth in the original complaint. Thus, the amendment did not relate back to the original date; the statute of limitation was an effective bar; and judgment on the pleadings was properly entered in the appellee's behalf.
Judgment affirmed. Bell, C. J., and McMurray, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3345833/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
ON DEFENDANT'S MOTION TO DISMISS PENDENTE LITE DATED OCTOBER 16, 2001
This court heard the above motion or December 19 and 20, 2000; February 9, 2001; and concluded the hearing on March 14, 2001. Both parties testified and were cross-examined, numerous exhibits were entered into evidence, and comprehensive briefs were prepared and presented by capable counsel.
The ultimate issue for this court to decide is whether Nevada or Connecticut has jurisdiction to dissolve this marriage.
By way of background, the plaintiff had served a writ, summons and complaint to dissolve his marriage by serving the defendant at their residence in Redding, Connecticut, on July 10, 2000. Since she was not there when the sheriff came to serve her, and service was made by his leaving the writ, summons and complaint at 85 Diamond Hill Road in Redding. On July 14, 2000, the plaintiff's attorney applied for and obtained an order of notice from the Superior Court at Danbury, Connecticut, to mail these documents to her residences in Carnelian Bay, California and at the condominium apartment in Las Vegas, Nevada. The defendant concedes she received the writ, summons and complaint at both of these residences.
In her testimony, she admitted having received them. She immediately brought the complaint to her attorney in Las Vegas, Nevada, who prepared a complaint to dissolve her marriage in Nevada, and personally served it on the plaintiff in Redding, Connecticut. The defendant filed the Nevada action on July 20, 2000, in CT Page 5056 the District Court of Nevada.
On August 8, 2000, the plaintiff, through his attorney, filed a motion to dismiss the Nevada divorce action claiming the defendant was not a resident of Nevada, and that her residence and usual place of abode was in Redding, Connecticut. On September 19, 2000, the Nevada District Court denied the plaintiff's motion to dismiss and found the defendant to be a resident of Las Vegas, Nevada. The defendant's case is going forward in the Nevada court with a trial date scheduled in July, 2001.
Some of the background facts are not in dispute. These parties were married on May 1, 1977 in San Francisco, California, almost twenty-four years ago. There were no children issue of this marriage. The defendant has two adult sons from a prior marriage who were raised by both of them. Throughout this marriage, the parties were able to afford a number of expensive homes in a number of different states. From 1993 to July, 2000, these parties have owned and lived in five residences in three different states. They own two mansions in California, one at Lake Tahoe, and the other on Carmelian Bay. They own two 2000 square foot condominiums in the same building in Las Vegas, Nevada, one was used as a residence apartment, and the other was used as an office-residence. In 1996, the defendant bought a large estate in Redding, Connecticut, for about $1.1 million. Then in the following year, they made extensive renovations and improvements on this estate which cost them about another $1 million. The principal assets are owned by Zimmerman Properties and consist of commercial real estate on or near the harbor in San Francisco, California. The substantial part of this real estate was inherited from the estate of the defendant's father valued to be worth $62 million as of his date of death in 1992. The plaintiff had worked with the defendant's father in developing these commercial properties prior to their marriage and until he filed his dissolution action in Connecticut in July, 2000.
The present fair market value of all these properties is estimated to be between $140 to $180 million. The defendant's average annual income is estimated to be about $6 million, and the plaintiff has been earning about $2 million annually from commissions he receives from leases he negotiates for Zimmerman Properties. There are over sixty parcels of real estate owned by Zimmerman Properties.
The residency requirements to bring a divorce complaint in Connecticut are set forth in § 46b-44 of the Connecticut General Statutes which provides in relevant part as follows: "(a) A complaint for dissolution of marriage . . . maybe filed after either party has established residence in this state." "(c) A decree dissolving a marriage . . . may be entered if: (1) One of the parties to the marriage has been a resident of this CT Page 5057 state for at least the twelve months next preceding the date of filing the complaint or next preceding the date of the decree. . . ." The court finds the plaintiff has been a resident of Redding, Connecticut, for at least the past three years.
The statutory authority for serving a complaint in any civil action in Connecticut is found in Connecticut General Statutes § 52-57 (a) which states that "[p]rocess in any civil action shall be served by leaving a true and attested copy of it, including the declaration or complaint, with the defendant, or at his [or her] usual place of abode,in this state." (Emphasis added.) This section provides for service by (1) manual delivery of the process to the defendant within the state which is referred to as personal service, or (2) by leaving a copy of the process at the defendant's usual place of abode, within the state. (Emphasis added.) Either mode of service is adequate to confer in personam jurisdiction over the defendant (Smith v. Smith, 150 Conn. 15, 20
(1962)); and personal jurisdiction over the parties, in turn, confers subject matter jurisdiction over the marital res. (Ivey v. Ivey,183 Conn. 490, 493 (1981).)
Whether or not the Redding residence is her principal residence and her usual place of abode, must be tested by this court's findings of facts.Collins v. Scholz, 34 Conn. Sup. 501, 503 (1976).
After listening to the testimony of both the parties and reviewing the exhibits entered into evidence, the court finds the residence at 85 Diamond Hill Road, Redding, Connecticut, was the principal residence and the usual place of abode of both the parties. The plaintiff established by clear and convincing evidence that between 1996 to July, 2000, they lived the majority of the time as residents of Redding, Connecticut. By residing in Redding, they both met the residency requirements in §46b-44 (a) and (c)(1) of the Connecticut General Statutes.
The abode service of the plaintiff's divorce complaint by a deputy sheriff at the Redding residence, and her admissions that she received it in California and Nevada on or about July 14, 2000, also complied with § 52-57 (a) of the Connecticut General Statutes, thereby giving Connecticut in personam jurisdiction over the defendant and subject matter jurisdiction over the marriage. The court found the plaintiff's testimony credible and probative to establish the following facts:
1. The Redding estate was purchased in defendant's name in 1996 for $1.1 million and during the following year, the parties made extensive renovations to the buildings and the grounds of about another $1 million, which were completed in 1997. From that time to when the defendant left the home in July, 2000, the parties spent an average of CT Page 5058 one hundred forty-seven days for the next three years in the Redding residence. During these same three years, they spent an average of thirty days in the condominium in Las Vegas, Nevada.
2. The Redding estate and residence met their needs a great deal more than the Las Vegas, Nevada condominium. They remodeled the large residence. They also had a new office built for the plaintiff, and had other space remodeled into an office for the defendant, with an art studio and exercise room on the second floor.
They remodeled a five car garage, built a tennis court and a greenhouse, and made improvements to other outbuildings, and improved the grounds. In 1998, servants came from Nevada to live in a cottage on the estate and are still residing there.
3. Between 1997 to the time she was served on July 10, 2000, they moved much of their personal and business records and affairs from Las Vegas, Nevada, to the Redding residence.
4. They developed many social friends in Connecticut during this period. The majority of their thirty or more bank statements from banks in numerous states were sent to the Redding residence. During this period, they became active in the Westport chapter of the United Jewish Appeal. They became directors and were active in raising substantial funds for this Westport, Connecticut, chapter.
5. The plaintiff was made a Connecticut voter on August 16, 2000, indicating his intention to become a domiciliary of Connecticut as well as being a resident here. (Defendant's Exhibit J.)
6. The plaintiff filed his 1999 federal and state income tax returns from his Redding address. (Defendant's Exhibit L.)
7. They used the Las Vegas, Nevada, and other addresses for filing their state and federal tax returns in the state where the tax liability was least. They followed the advice of their accountants as to which state they would file their federal and state tax returns.
8. In a California Tax Board Resident Status Report, there was listed over fifty parcels of commercial real estate. The plaintiff certified that they spent over five and one-half months at the Redding residence, the majority of the time in relationship to their four other residences.
9. The defendant left her clothes and other personal property in the Redding home indicating an intent to return there. CT Page 5059
10. In 1998, they brought their household pets from Las Vegas, Nevada, to their estate in Redding, Connecticut.
11. Between the years 1997 and 2000, they spent an average of one hundred forty-seven days at their residence in Redding, and only thirty days each year in their residence-apartment in Nevada.
12. In February, 2000, they listed for sale the Nevada condominiums.
From these facts, the court finds that both the plaintiff and defendant were residents of Redding, Connecticut, and were in compliance with the residency requirements in § 46b-44 (c)(1) of the Connecticut General Statutes. These facts prove a clear intent committing themselves to make the Redding residence their usual place of abode.
The abode service of the complaint on the defendant at the Redding residence on July 10, 2000, conferred in personam jurisdiction pursuant to § 52-57 of the Connecticut General Statutes. Connecticut has in personam jurisdiction of these parties and of the marriage. The same issue was addressed by the Connecticut Supreme Court in the case of Clegg v.Bishop, 105 Conn. 564, 569 (1927). In denying a defendant's motion to dismiss, pendente lite, the Connecticut court held as follows:
Under General Statutes, § 5591, service of process may be made by leaving an attested copy with a defendant, or at his usual place of abode. "The most prominent purpose of the law in prescribing the modes of serving civil process was to ensure actual notice to defendants." Grant v. Dalliber, 11 Conn. 233, 237. The place where one would be most likely to have knowledge of a service by copy would be at his usual place of abode. What, then, does "usual place of" signify as used in this statute? One may have two or more places of residence within a State, or in two or more States, and each may be a "usual place of abode." Dorus v. Lyon, 92 Conn. 55, 57, 101 A. 490. Service of process will be valid if made in either of the usual places of abode. It will reach him in one as well as the other. Dorus v. Lyon, supra, is decisive that one may have a home and residence outside this State and yet have a usual place of abode in this State for service of process and sufficient to permit the statute of limitations to run. Grant v. Dalliber, supra; Dunn's Appeal, 35 Conn. 82.
"Residence" does not necessarily import domicil. CT Page 5060 Easterly v. Goodwin, 35 Conn. 279, 286." Hewitt v. Wheeler School Library, 82 Conn. 188, 194, 72 A. 935. Nor does usual place of abode import domicil. There is no relation between them, though they may be concurrent. A person may have two or more places of abode while he can have only one domicil. Where one has two usual places of abode, one within and one without the State, either of these abodes will be a usual place of abode for the service of process under our statute.
By this court's findings, Redding, Connecticut, is their principal residence and usual place of abode. Therefore, it is unnecessary to address the forum non conveniens argument, as the defendant cites no case where Connecticut was found to be an inconvenient forum where both parties to a divorce action have their principal residence in this state.
For all the reasons stated herein, the defendant's motion to dismiss, pendente lite, is denied.
Romeo G. Petroni, J.T.R. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3345834/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION RE: MOTION TO VACATE (DOCKET ENTRYNO. 103 SHORT CALENDAR, SEPTEMBER 25, 1995)
The plaintiff, D.L. Ryan Companies, Ltd., filed a complaint with an application for a temporary injunction against the defendants, Sierra Communications Group, Ltd. and Michael Sussman. The plaintiff's complaint and application allege that the defendants copied data from the plaintiff's computer system in violation of General Statutes §§ 53a-251 (c), (e)(1) and (2). In addition to money damages, the plaintiff also requested a temporary and permanent injunction pursuant to General Statutes § 52-570b(a)(1).
The plaintiff's application for a temporary injunction was purportedly sworn to by David L. Ryan, an officer of the plaintiff-corporation. The application was signed "THE PLAINTIFF By s/ Jonathan A. Flatow, Esq." Furthermore, the last page of the application contained the following: "Personally appeared David L. Ryan, who declared himself to be an officer of D.L. RYAN COMPANIES, LTD., who made oath to the truth of the allegations in the above application. s/ Jonathan A. Flatow, Commissioner of the Superior Court."
On August 25, 1995, the court, Rush, J., granted a temporary injunction and order to show cause. The defendants, on September 11, 1995, filed a notice of appearance and a motion to vacate the temporary injunction and order to show cause. The defendants filed a memorandum of law in support of their motion to vacate and the plaintiff filed an objection and a memorandum of law in support of the objection.
The defendants argue that the temporary injunction and order to show cause should be vacated because (1) David L. CT Page 1414-G Ryan's signature does not appear on the application; and (2) the plaintiff's application and complaint fail to allege facts sufficient to find irreparable harm and lack of an adequate remedy at law.
A. Lack of Signature
The defendants argue that the temporary injunction should be vacated because the plaintiff failed to comply with General Statutes § 52-471 (b). The defendants contend that the absence of David L. Ryan's signature from the application renders the application legally insufficient. The plaintiff argues that the application was properly verified by the oath of the Chairman of the Board of the plaintiff as evidenced by the signature of Jonathan A. Flatow, a commissioner of the Superior Court.
Section 52-471 (b) of the General Statutes provides that "[n]o injunction may be issued unless the facts stated in the application therefor are verified by the oath of the plaintiff or of some competent witness." "It must be presumed that where the legislature prescribes that an acknowledgment be under oath, the oath should be administered in accordance with the provisions of chapter 4 [of the General Statutes]." Smith v.Smith, 40 Conn. Sup. 151, 155, 483 A.2d 629 (1984, Purtill, J.). Section 1-24 of chapter 4 provides that "[t]he following officers may administer oaths: . . . (2) . . . commissioners of the superior court. . . ." General Statutes § 1-24.
The court finds that the application for the temporary injunction was properly verified. The application contains an attestation by a commissioner of the Superior Court that David L. Ryan swore to the truth of the allegations stated therein. Furthermore, § 52-471 (b) does not require that an application be signed by a plaintiff, only verified. Thus, the lack of a signature is not dispositive as to the legal sufficiency of the application. Thus, the defendants' first argument in support of their motion to vacate is without merit.
B. Failure to Allege Irreparable Harm and Lack of Adequate Remedy at Law.
The defendants also argue that the temporary injunction should be vacated because the plaintiff's application and complaint fail to allege irreparable harm and lack of an adequate remedy at law. The plaintiff contends that it is not CT Page 1414-H required to allege these facts because it is proceeding under a statute, General Statutes § 52-570B, which provides for the remedy of temporary injunction.
Ordinarily, "[a] party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law." (Internal quotation marks omitted.)Berin v. Olson, 183 Conn. 337, 340, 439 A.2d 357 (1981). There is an exception, however, that relieves the complainant from his burden of proving irreparable harm and no adequate remedy at law "where a statute expressly provides for equitable remedies in addition to the ordinary legal ones." Burns v. Barrett,212 Conn. 176, 193, 561 A.2d 1378 (1989); see also ConservationCommission v. Price, 193 Conn. 414, 429, 479 A.2d 187 (1984). The rationale underlying this exception is that "it may be presumed that there is no adequate legal remedy, because the legislature would not have provided the additional remedies if they were not needed." Burns v. Barrett, supra, 212 Conn. 193; see also Conservation Commission v. Price, supra, 193 Conn. 429.
The plaintiff alleges a violation of General Statutes §§53a-251 (c), (e)(1) and (2) and requests injunctive relief pursuant to General Statutes § 52-570b. Section 52-570b
provides, in pertinent part, that "[a]ny aggrieved person who has reason to believe that any other person has been engaged, is engaged or is about to engage in an alleged violation of any provision of section 53a-251 may bring an action against such person and may apply to superior court for: (1) An order temporarily or permanently restraining and enjoining the commencement or continuance of such act or acts. . . ." General Statutes § 52-570b(a).
Because the plaintiff is alleging a violation of General Statutes § 53a-251, the provisions of General Statutes § 52-570b
relieve it of the burden of alleging irreparable harm and lack of an adequate remedy at law. Therefore, the defendants' second argument in support of the motion to vacate is without merit because the plaintiff was not required to allege irreparable harm and lack of an adequate remedy at law.
Because (1) the application was properly verified; and (2) the plaintiff was relieved of the burden of alleging irreparable harm and lack of an adequate remedy at law, the motion to vacate the temporary injunction is denied. CT Page 1414-I
JOHN W. MORAN, JUDGE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1333484/ | 144 Ga. App. 301 (1977)
241 S.E.2d 15
BROWN TRANSPORTATION CORPORATION
v.
ATCON, INC.
54694.
Court of Appeals of Georgia.
Submitted October 4, 1977.
Decided November 15, 1977.
Rehearing Denied December 7, 1977.
Siegel & Grude, Bennet Grude, Kenneth Forrest, for appellant.
Huie, Sterne, Brown & Ide, D. Lake Rumsey, John R. Lowery, for appellee.
McMURRAY, Judge.
Atcon, Inc., a Georgia corporation, delivered four separate shipments of carpeting materials to Brown Transportation Corporation, operator of Harper Motor Lines, Inc., to be shipped collect to the consignee, Idaho Shippers Association, Salt Lake City, Utah. The carrier *302 delivered the goods without receiving payment for the freight charges, even though shipped collect. The carrier subsequently billed the consignee on open account but failed to give the shipper any notice whatsoever of this conduct. The carrier failed to collect the freight charges from the consignee. Some seven months later, after extension of credit to the consignee, the carrier realized that the consignee was in serious financial difficulty and the carrier presented the freight bill to the shipper and demanded payment. When Atcon, Inc. refused to pay Brown Transportation Corporation, operator of Harper Motor Lines, Inc., the carrier, sued Atcon, Inc. to recover the shipping charges invoking section 7 of the bill of lading contract. The defendant answered, denying any indebtedness was due and in addition to pleading the defense of failure to state a claim it also raised the affirmative defense of estoppel, fraud, laches and waiver.
After discovery the case came on for trial before the court without a jury. The court held that the plaintiff was in violation of 49 CFR, § 1322.3 in that it failed to bill the defendant shipper as required within seven days of delivery and failed to bill defendant shipper for at least seven months after said discovery. Hence, the plaintiff was entitled to nothing. Plaintiff appeals. Held:
1. Generally, the carrier may collect the shipping charges from the shipper or consignee absent a special contract under which the carrier agrees to relieve one or the other. Aero Mayflower Transit Co. v. Harbin, 126 Ga. App. 72, 73 (190 SE2d 91); Allied Van Lines v. Hanson, 131 Ga. App. 506 (2) (206 SE2d 108). Here the carrier had inserted the following information on the bill of lading, "Subject to Section 7 of Conditions of applicable bill of lading, if this shipment is to be delivered to the consignee without recourse on the consignor, the consignor shall sign the following statement: The carrier shall not make delivery of this shipment without payment of freight and all other lawful charges." This statement was not signed, although the goods were shipped collect. Section 7 of the contract terms and conditions had reference to the fact that the owner or consignee shall pay the freight except in certain instances. But under the authority of Aero *303 Mayflower Transit Co. v. Harbin, 126 Ga. App. 72, supra, and Allied Van Lines v. Hanson, 131 Ga. App. 506, supra, the trial court held that the plaintiff failed to bill the defendant shipper within seven days of delivery as required by 49 CFR § 1322.3, but instead had waited seven months to do so. Hence, the plaintiff had extended credit to the consignee for a period longer than that authorized by the ICC regulations. This case is controlled by the two cases cited. The trial court did not err in rendering judgment for the defendant against the plaintiff.
2. Having properly granted the motion for directed verdict (considered by judge without a jury), it was not necessary to render separate findings of fact and conclusions of law, although the judgment contained both.
Judgment affirmed. Bell, C. J., and Smith, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333487/ | 144 Ga. App. 441 (1978)
241 S.E.2d 62
LANIER PETROLEUM, INC.
v.
HYDE.
54473.
Court of Appeals of Georgia.
Argued September 7, 1977.
Decided January 4, 1978.
Robinson, Harben, Armstrong & Millikan, Edmund A. Waller, for appellant.
Boling & Rice, Larry H. Boling, for appellee.
BIRDSONG, Judge.
Appellant, Lanier Petroleum, Inc. (Lanier), brought suit against Hyde as endorser of a check, and moved for summary judgment, which was denied. Lanier then amended its complaint to allege that Hyde was also liable on account, and a jury verdict was rendered in favor of Hyde. Following denial of Lanier's motion for judgment notwithstanding the verdict, this appeal was brought. Held:
1. Lanier contends that the trial court erred in denying its motion for summary judgment. "[A]fter verdict and judgment, it is too late to review a judgment denying summary judgment." Pascoe Steel Corp. v. Turner County Bd. of Ed., 142 Ga. App. 88, 89 (235 SE2d 554). This contention is without merit.
2. Lanier argues that the trial court erred in allowing Hyde to amend his answer, during trial, to reflect the defense of accord and satisfaction. Code Ann. § 81A-115 (a) provides that a pleading may be amended "as a matter of course . . . at any time before the entry of a pre-trial order," and thereafter "only by leave of court or *442 by written consent of the adverse party . . ." Having obtained leave of court, the responsive pleadings were properly amended to reflect the affirmative defense of accord and satisfaction. Leslie v. Solomon, 141 Ga. App. 673 (234 SE2d 104); Security Ins. Co. v. Gill, 141 Ga. App. 324 (233 SE2d 278). See Gauker v. Eubanks, 230 Ga. 893 (4) (199 SE2d 771). Furthermore, no pre-trial order appears in the record, and amendment is proper as a matter of course where there has been no entry of a pre-trial order (Altamaha Convalescent Center v. Godwin, 137 Ga. App. 394 (224 SE2d 76)), and such amendment is not subject to the discretion of the trial court. Downs v. Jones, 140 Ga. App. 752 (231 SE2d 816). Lanier's failure to allege surprise or move for a continuance at trial, pursuant to Code Ann. § 81A-115 (b), precludes us from considering this argument, particularly in the absence of a pre-trial order. There was no error.
3. Lanier asserts as error the trial court's admission, over objection, of evidence pertaining to the defense of accord and satisfaction. As the responsive pleadings were properly amended to reflect this defense, there was no error.
4. Appellant complains of the trial court's denial of its motion for directed verdict. "The direction of a verdict is proper only where 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." State Farm Mut. Auto Ins. Co. v. Snyder, 125 Ga. App. 352 (187 SE2d 878). "Furthermore, evidence in cases of directed verdict must be construed most favorably toward the party opposing the motion." Nationwide Mut. Ins. Co. v. Ware, 140 Ga. App. 660, 664 (231 SE2d 556). Under these rules, there was sufficient conflict in the evidence as to the material issues to justify the trial court's denial of the motion to direct a verdict.
5. Appellant contends that the trial court erred in denying its motion for judgment notwithstanding the verdict. The appropriate rule is that ". . . if there is any evidence to support the verdict, it must be affirmed." Smith v. Hornbuckle, 140 Ga. App. 871, 879 (232 SE2d 149); Johnson v. State, 231 Ga. 138 (1) (200 SE2d 734); Talley v. State, 137 Ga. App. 548, 549 (224 SE2d 455). *443 That standard is satisfied by the evidence presented in this case, and denial of appellant's motion for judgment notwithstanding the verdict was not error.
Judgment affirmed. Deen, P. J., and Webb, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333491/ | 241 S.E.2d 110 (1978)
35 N.C. App. 235
Ginny SIDES
v.
Robert REID.
No. 7718DC227.
Court of Appeals of North Carolina.
February 7, 1978.
*111 Morgan, Byerly, Post, Herring & Keziah, by Charles L. Cromer, High Point, for the plaintiff.
No counsel contra.
MARTIN, Judge.
The only question posed by this appeal is whether there was sufficient evidence from which the trial court could find that defendant was entitled as a matter of law to have the default judgment set aside.
Motions to set aside a final judgment are governed by Rule 60(b) of the Rules of Civil Procedure. This rule provides, in pertinent part, that:
"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
"(1) Mistake, inadvertence, surprise, or excusable neglect;
* * * * * *
"(6) Any other reason justifying relief from the operation of the judgment."
If a movant is uncertain whether to proceed under clause (1) or (6) of Rule 60(b), he need not specify if his motion is timely and the reason justifies relief. Brady v. Town of Chapel Hill, 277 N.C. 720, 178 S.E.2d 446 (1971). Under either clause the movant must show that he has a meritorious defense. Doxol Gas v. Barefoot, 10 N.C.App. 703, 179 S.E.2d 890 (1971).
In the instant case, defendant alleged in his motion and the trial court found as fact a meritorious defense. This finding of fact is supported by competent evidence and thus, binding on appeal. *112 Moore v. Deal, 239 N.C. 224, 79 S.E.2d 507 (1954). However, defendant did not assert excusable neglect as grounds for relief nor did the trial court find the same as fact in its order setting aside the judgment. Therefore, we must presume that the trial court based its authority to set aside the judgment upon clause (6) of Rule 60(b).
Allowing a trial court to set aside a final judgment for "any other reason" justifying such relief, Rule 60(b)(6) has been described as "a grand reservoir of equitable power to do justice in a particular case." 7 Moore's Federal Practice § 60.27(2) (2d ed. 1970). Our Supreme Court has stated that the "broad language of clause (6) `gives the court ample power to vacate judgments whenever such action is appropriate to accomplish justice.'" Brady v. Town of Chapel Hill, supra. In light of these principles, we must determine whether, based upon the evidence presented, a compelling reason has been shown which warrants the exercise of such broad equitable power. See Standard Equipment Co., Inc. v. Albertson, N.C.App., 240 S.E.2d 499 (filed January 24, 1978). We find no such reason in the evidence presented by defendant in support of his motion.
Defendant presented no evidence of any unusual or extraordinary circumstances which might explain his failure to file answer; nor was there any finding of the same by the trial court. The trial court found only that defendant had mailed a handwritten note to the court denying liability and that plaintiff's own affidavit established this lack of liability and thus, constituted a meritorious defense. We note that defendant was able to offer no proof of, and the court's records were devoid of evidence of, the existence of the handwritten note. Moreover, this is not a case where the movant employed and relied upon an attorney who failed to take action. In the instant case, although defendant owned and managed three corporations and admitted reading and generally understanding the summons and complaint, he made no effort to consult an attorney until after the supplemental proceeding. In fact, defendant took no actionother than the handwritten note for which he cannot accountuntil this time, some thirteen months after he was personally served with process.
In view of defendant's failure to use proper diligence in the case at bar, we cannot say that equity should act to relieve him from the judgment by default. See Brady v. Town of Chapel Hill, supra. Notwithstanding the broad equitable power of a trial court to vacate judgments pursuant to Rule 60(b)(6), it should not grant such relief absent a showing based on competent evidence that justice requires it. Norton v. Sawyer, 30 N.C.App. 420, 227 S.E.2d 148, cert. denied, 291 N.C. 176, 229 S.E.2d 689 (1976). This showing simply does not appear from the evidence presented in the instant case.
Accordingly, the trial court erred in concluding, as a matter of law, that defendant was entitled to have the default judgment set aside. The order vacating said judgment is reversed.
Reversed.
PARKER and ARNOLD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333496/ | 241 S.E.2d 360 (1978)
35 N.C. App. 404
NORTH CAROLINA NATIONAL BANK, a National Banking Association
v.
Charles F. SHARPE and wife, Betty R. Sharpe.
No. 7722SC220.
Court of Appeals of North Carolina.
February 21, 1978.
*361 Chamblee & Gourley by Robert H. Gourley, Statesville, for plaintiff-appellee.
West, Groome, Tuttle & Thomas by Carroll D. Tuttle, Lenoir, for defendants-appellees.
CLARK, Judge.
This appeal raises a single issue: Is the secured party under an obligation to take possession of the collateral after default upon request or demand of the debtor? In the case before us the evidence relating the debtor's demand that the secured party take possession is conflicting, raising a question of fact. Thus, in determining whether plaintiff's motion for summary judgment was properly granted, we assume as a fact that such demand was made.
If the plaintiff secured party had an obligation to take possession after default upon demand of the defendant debtors, there would be merit to the defendants' argument that plaintiff was liable for any loss caused by his failure to meet this obligation. G.S. 25-1-106(1) provides that the remedies "shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed . . . ." Subsection (2) of the same section states: "Any right or obligation declared by this chapter is enforceable by action" unless expressly otherwise provided or limited in the provision itself.
The answer to the issue before us is determined primarily by G.S. 25-9-501(1):
"When a debtor is in default under a security agreement, a secured party has the rights and remedies provided in this part and except as limited by subsection (3) those provided in the security agreement. He may reduce his claim to judgment, foreclose or otherwise enforce the security interest by any available judicial procedure. If the collateral is documents the secured party may proceed either as to the documents or as to the goods covered thereby. A secured party in possession has the rights, remedies and duties provided in § 25-9-207. The rights and remedies referred to in this subsection are cumulative."
Under this statute, on default the secured party may reduce his claim to judgment or otherwise enforce the security interest by any available judicial procedure.
The secured party may reduce his claim to judgment and levy execution on the collateral based on the judgment, and the lien relates back to the dates of the perfection of the security interest. A judicial sale pursuant to the execution is a foreclosure by judicial procedure, and the secured party may purchase at the sale. G.S. 25-9-501(5).
On default the secured party has the right to take possession of the collateral unless otherwise agreed. G.S. 25-9-503. The obligation of the secured party while in possession is specified by G.S. 25-9-207. But the right of the secured party to take possession does not impose an obligation to take possession upon demand of the debtor. If so, the alternative remedies provided the secured party by G.S. 25-9-501(1) would be meaningless. And the obligations of the secured party to secure and protect the collateral as required by G.S. 25-9-207 are not applicable unless and until the party has exercised his right of possession.
We find that plaintiff had no duty to take possession of the collateral upon demand of defendant, and that plaintiff was not liable in damages for failure to do so. The summary judgment for plaintiff is
Affirmed.
MORRIS and MITCHELL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333501/ | 144 Ga. App. 373 (1977)
241 S.E.2d 295
DENHAM
v.
THE STATE.
54633.
Court of Appeals of Georgia.
Argued October 11, 1977.
Decided December 1, 1977.
Rehearing Denied December 16, 1977.
Martin, Kilpatrick & Davidson, Frank K. Martin, for appellant.
E. Mullins Whisnant, District Attorney, J. Gray Conger, Assistant District Attorney, for appellee.
SHULMAN, Judge.
Appellant was convicted of possession of heroin. The state's evidence presented to the jury was that an experienced narcotics officer, driving through a *374 predominantly black neighborhood, saw a young white man sitting in the driver's seat of a parked car. Because the driver seemed nervous, the officer called for other officers to maintain surveillance on the car he had seen. Shortly thereafter, he received a call informing him that the car was moving in his direction. He got behind it and turned on his siren to stop the car and check the identities of the occupants, having noticed that there was now a passenger in the car. The police car he drove was unmarked and had no flashing lights. The witness testified that when he turned on the siren and motioned for the car in front to pull over, it accelerated. The passenger turned around, looked at the officer, turned toward the door window and began to stuff something into the car door through the opening for the window. The car ahead continued for some four blocks, then made a right turn, without stopping for a stop sign, and pulled over to the curb. The witness, assisted by other officers who arrived after the car had stopped, took the occupants out of their vehicle and looked into the space into which he had seen the passenger stuffing something. He saw some plastic bags and removed the door panel to get out the twelve small bags he found there. It was stipulated that the contents were heroin and that the appellant was the driver. At the close of the state's evidence, appellant made a motion for a directed verdict of acquittal. He enumerates as error the denial of that motion and we agree.
1. The evidence of appellant's guilt is circumstantial. There is no direct evidence that he had any control (possession) or even knowledge (constructive possession) of the contraband. The only direct evidence was that he looked nervous, was present when another committed a crime, and fled from the police. "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." Code Ann. § 38-109. Presence at the scene of a crime and flight from authority, together, are not sufficient to support a conviction. Griffin v. State, 2 Ga. App. 534 (58 SE 781); Hodges v. State, 103 Ga. App. 284 (118 SE2d 858) (connection with persons committing crime, suspicious behavior, and flight not *375 sufficient to support conviction). See also Greeson v. State, 138 Ga. App. 572 (4) (226 SE2d 769), affd., State v. Greeson, 237 Ga. 193 (2) (227 SE2d 324) (proof that defendant transported co-defendant who was in possession of drugs to place where drug transaction occurred not sufficient to support conviction; error to deny directed verdict for defendant).
2. The state argues that Neal v. State, 130 Ga. App. 708 (204 SE2d 451) controls and requires us to hold that the evidence here was sufficient. However, the defendant there was arrested while alone in the front seat of a car where drugs were in plain view. Here the evidence shows only that appellant was driving a car in which a person who possessed heroin rode. The officer testified that the passenger "... turned around in the seat ... toward the outside of the car, toward the street ..." and had his back to the driver. That testimony is not sufficient to establish appellant's knowledge of the presence of the heroin.
The evidence presented to the jury, though consistent with the hypothesis of guilt, was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. It was, therefore, error to deny appellant's motion for a directed verdict of acquittal.
Judgment reversed. Bell, C. J., Webb, Smith and Birdsong, JJ., concur. Deen, P. J., McMurray and Banke, JJ., dissent. Quillian, P. J., not participating.
BANKE, Judge, dissenting.
I cannot agree that the evidence in this case did not authorize the inference that the appellant knew that heroin was present in his automobile. He was, after all, sitting next to his companion as the latter stuffed the 12 plastic bags into the car window. It defies reason to *376 imagine that the appellant was oblivious to this activity. Furthermore, it appears from the officer's testimony that the appellant took evasive action only long enough for the process of hiding the heroin to be completed, whereupon he stopped the car. Viewed in their totality, these circumstances evidence more than mere presence at the scene of a crime and subsequent flight. They also evidence a direct connection between the appellant and the crime being committed in his vehicle. For this reason, Greeson v. State, supra, and the other cases cited by the majority are inapposite.
I find that the evidence, when construed in support of the jury's verdict, as we are required to do on appeal, excludes every reasonable hypothesis other than the accused's guilt. Consequently, the jury's verdict was fully authorized and should be upheld.
I am authorized to state that Presiding Judge Deen and Judge McMurray join in the dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263085/ | 31 Cal.App.4th 1778 (1995)
37 Cal. Rptr.2d 803
THE PEOPLE, Plaintiff and Respondent,
v.
JOHN FIELD, Defendant and Appellant.
Docket No. D018084.
Court of Appeals of California, Fourth District, Division One.
February 2, 1995.
*1780 COUNSEL
John Field, in pro. per., Paul Bell and Diana L. Cuomo, under appointments by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary Schons, Assistant Attorney General, Garrett Beaumont and Janelle B. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[1]]
OPINION
HALLER, J.[*]
Following a mistrial declared because of a hung jury, the jury in John Field's second trial found him guilty of first degree murder (Pen. Code,[2] § 187). The jury also found true allegations Field personally used a firearm in the commission of the offense within the meaning of sections 1203.06, subdivision (a)(1), and 12022.5. The trial court sentenced Field to the indeterminate term of 25 years to life on the murder count and imposed a consecutive 2-year term for the section 12022.5 firearm allegation.
Field appeals. His main assignments of error are the trial court erred by (1) prohibiting the defense from impeaching a key prosecution witness with *1781 a prior Oklahoma felony conviction; (2) allowing evidence that Field had claimed he had shot a policeman; and (3) allowing evidence of prior consistent statements by prosecution witnesses. By leave of this court, Field himself has filed supplemental briefs in propria persona, contending (1) he was denied effective assistance of counsel at trial; (2) the trial court erred by allowing evidence of his claim he had shot a policeman and also erred by not sufficiently dealing with juror misconduct; (3) there was misconduct by the prosecutor who failed to provide discovery in a timely fashion and misled the court on why she offered evidence of Field's claim of shooting a policeman; (4) there was jury misconduct in failing to follow instructions from the court and not disclosing information sought by the court; and (5) the bailiff failed to perform his duties.
FACTUAL AND PROCEDURAL BACKGROUND
On July 7, 1989, William Donald "Billy" Richardson was shot and killed while he was in the cab of Russ Wilson's (Wilson) pickup truck parked outside the Oceanside apartment complex where Wilson lived. At 4 a.m., police found Richardson's body lying on Farel Street. There were seven casings on the street near the body.
An autopsy disclosed Richardson was shot six times at close range; each of the bullet wounds would have been fatal.
Police never recovered the murder weapon or the pickup truck, and the case remained unsolved for more than a year. In September 1990, Oceanside police detectives interviewed Wilson and his wife, Buffy Jo Wilson (Buffy), in Oklahoma. Each identified Field as the killer of Richardson. Also during the interviews with the Wilsons, the name of Teresa Marandola, Field's girlfriend at the time of the homicide, was mentioned. Upon their return to Oceanside, the police detectives interviewed Marandola, who also identified Field as the killer of Richardson. After obtaining an arrest warrant, police arrested Field in Massachusetts.
In 1989, Field, Richardson and Wilson were associated in the business of manufacturing and selling methamphetamine in the Oceanside area. In addition to dealing methamphetamine, the trio, as well as Buffy and Marandola, regularly used methamphetamine and did so on the day of the Richardson homicide. Regular users of methamphetamine, also known as "tweekers," often develop bizarre thinking patterns and/or paranoia, believing there is a conspiracy out to get them.
Several weeks before Richardson was killed, Wilson invested $1,500 with Richardson and Field to participate in a "cook," a single session of manufacturing methamphetamine. Richardson was supposed to return the money *1782 to Wilson within 96 hours, but he never did. Richardson told Wilson the manufacturing session was moved and delayed. For the next two months, Wilson tried unsuccessfully to get his money back from Richardson; the two often argued over the matter.
On July 4, 1989, Richardson was at Wilson's apartment and wanted to visit a woman who lived in Escondido. Although Wilson and Buffy, who were then engaged to be married, were planning to go to Tijuana with their friend Earl Rojillo, Wilson told Buffy to drive Richardson to Escondido. Wilson and Rojillo were to wait for Buffy to return before proceeding to Tijuana. Buffy did not return for several hours because Richardson raped her after they arrived in Escondido.
Wilson and Rojillo eventually left for Tijuana without Buffy and did not return until 4 a.m. the next day. When they returned, Buffy had "a big knot[] on her head, a big ole bruise on her face," and the apartment was in a state of disarray. Buffy, who had blackened her own eye, falsely told Wilson the apartment had been burglarized and the burglars had beaten her. She did not tell Wilson that Richardson had raped her. To explain why she had not immediately returned to the apartment from Escondido, Buffy concocted a story about Hell's Angels pulling her over on the highway and detaining her while they demanded to know where Richardson was. Upon hearing this story, Wilson became enraged and, armed with an AK-47 rifle and a .45-caliber automatic pistol, left to find Richardson; he believed Richardson was "directly responsible" for Buffy's injuries. When Wilson found Richardson, they engaged in a 10-minute "knock down, drag out fist fight" that lasted until they "beat the crap out of each other." Then the two of them decided to look for the people who supposedly roughed up Buffy.
Before July 6, 1989, Richardson had borrowed Wilson's pickup truck and departed from the area; he left a couple of duffel bags in Wilson's apartment. At 8 or 9 p.m. on July 6, 1989, Field and Marandola went to Wilson's apartment. According to Buffy, Field was looking for Richardson. According to Wilson, Field said Richardson had sent him over to pick up his duffel bags. According to Buffy, Field was "very uptight," and "very, very upset." According to Wilson, Field was acting normally. Field and Marandola stayed a short time and left with Richardson's bags.
Between 2 and 3 a.m. on July 7, 1989, Field and Marandola returned to Wilson's apartment and woke them up. According to Wilson, this time Field was "ranting and raving and raising hell about how he has got [Richardson] down in the truck." Field also said he had come to take away Buffy because Wilson was beating her up. Field, who was waving a .22-caliber automatic *1783 pistol, said he was tired of Wilson and Richardson lying to him and was "going to get to the bottom of what was going on ... tonight." Field told Wilson: "[S]omebody is going to get their ass shot tonight. Somebody is going to die. I am going to get to the bottom of this shit. I am going to find out who has been lying to me, who is going behind my back. One of you two is going to be it."
Wilson suggested they "get this settled" by talking to Richardson and finding out what was wrong. Field then walked outside and returned in three or four minutes and said Richardson was asleep in the truck. Field said: "Now is the time we can go down there and get him." After arguing some more with Field, Wilson suggested they all go outside. Field, Wilson, Marandola and Buffy left the apartment. Field approached the truck by himself. Wilson heard a shot and started running toward the truck; he heard three or four more shots as he ran. When Wilson was near the truck, he saw Field dragging Richardson out of the truck. Richardson fell onto the street and was left there.
Field ordered Wilson at gunpoint to get into the truck; Wilson complied and Field drove the truck away. While driving, Field told Wilson to get rid of the gun; Wilson took it, cleaned off the blood and fingerprints and threw it out the window. Buffy and Marandola followed in Buffy's car. After stopping at a gasoline station, the two vehicles were driven to the Escondido Auto Park, where a car belonging to Marandola's mother was parked. Field, Wilson, Marandola and Buffy got out of the vehicles. An extremely excited Field was talking about having just killed a guy and what the group needed to do next. Eventually, Field drove Buffy's car, Buffy rode with Marandola in her mother's car and Wilson drove the truck; all of them arrived at the apartment of Marandola's mother in Mira Mesa.
The four of them entered the apartment quietly as Marandola's mother slept and went into Marandola's room, where Field told the others they were accessories to murder and threatened to turn them in if they told the police what had happened. Field showed them a notebook containing newspaper clippings of crimes and accidents and claimed to have something to do with them. Over a defense objection, Wilson testified one of the clippings was about a policeman who was shot and Field said, "I shot this policeman" and threatened to do the same to his three companions if they did not "play along, get our alibis straight."[3]
On their way home, Wilson and Buffy stopped at a convenience store and purchased vinegar to clean the blood from the truck. At their apartment *1784 complex, they parked the truck in visitor parking so it would not be associated with them. A few days later, they sold the truck. Shortly thereafter, Wilson and Buffy moved out of their apartment and stayed with friends in San Marcos until they moved back to Oklahoma around Labor Day of 1989. Wilson and Buffy were married in Oklahoma at the end of September 1989.
In September 1990, Buffy was interviewed by Oceanside police detectives in Oklahoma. Buffy initially told the police she and Wilson were in Tijuana when Richardson was killed; she testified she lied to the police because she was scared. However, after several hours of interrogation, Buffy discerned the detectives knew she was lying, "broke down," cried and told the truth.
Next, the detectives interviewed Wilson and told him there was no point in lying since Buffy had told the entire story. Wilson testified "at that point the cat is out of the bag, so I told them like it was."
Marandola testified under a grant of immunity. She related that she, Field and Richardson had driven to the Wilsons' apartment on July 7, 1989, in Wilson's pickup truck. She and Field had consumed a good deal of methamphetamine; she was not sure whether Richardson had consumed any. Richardson, who had a .44 magnum in his possession, and Field were arguing about tapes that had been removed from a telephone recorder; the tapes contained conversations about drug traffic. Marandola and Field went to the Wilsons' apartment while Richardson waited in the parked truck. While they were in the apartment, Field said he was going to kill Richardson. After about 10 or 15 minutes, Field left the apartment, but returned shortly and said Richardson was asleep in the truck. Field left the apartment a second time and returned to the truck; Marandola heard three or four shots. She did not report the homicide to the police because she believed Field when he said she and the Wilsons were accessories.
Field did not present a defense. His counsel argued the evidence raised a doubt about Field's responsibility and pointed to Wilson as the likely killer.
DISCUSSION
I. Arguments Raised by Appellate Counsel
A. Impeachment With Expunged Oklahoma Conviction
(1a) Field contends the trial court erred in prohibiting the defense from impeaching Wilson with his prior Oklahoma conviction for pointing a firearm at another. The contention is without merit.
*1785 Evidence Code section 788 provides in pertinent part:
"For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless:
".... .... .... .... .... .... ....
"(b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code.
"(c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense.
"(d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c)."
Here, the trial court ruled that Wilson could not be impeached with his prior Oklahoma conviction because as of the date of Field's second trial the conviction had been expunged pursuant to Oklahoma Statutes, title 22, section 991c, which provides in pertinent part: "Upon completion of the probation term, which probation term under this procedure shall not exceed five (5) years, the defendant shall be discharged without a court judgment of guilt, and the verdict or plea of guilty or plea of nolo contendere shall be expunged from the record and said charge shall be dismissed with prejudice to any further action."
Field argues this was error because (1) insufficient evidence of expungement was presented to the court; (2) the Oklahoma expungement provision was not substantially equivalent to section 1203.4; and (3) under Proposition 8, the expungement limitation on the admissibility of prior felony convictions has been abrogated. We disagree on all three points.
The issue of using Wilson's prior Oklahoma conviction arose when the prosecution moved in limine to bar use of the expunged conviction for impeachment purposes. The court was informed of the date and nature of the conviction and the fact that it was used to impeach Wilson during Field's first trial because it had not yet been expunged as of the first trial. Neither *1786 party had a copy of the Oklahoma expungement statute for the trial court's review, but the prosecutor did provide an oral summary of the provision. The prosecutor also made an offer of proof that Wilson currently had no criminal record in Oklahoma because the conviction had been expunged. The trial court found the Oklahoma expungement statute tantamount to section 1203.4 and therefore concluded Evidence Code section 788, subdivision (d), was applicable. At the same time that the trial court ruled the Oklahoma conviction was not usable for impeachment purposes, the court also left open the door for the defense to show the conviction had not in fact been expunged.
In contending that there was insufficient evidence of the expungement, Field argues the prosecution did not meet its burden of proof of the preliminary fact of expungement. (See Evid. Code, § 405; Cal. Law Revision Com. com., Deering's Ann. Evid. Code, § 405 (1986) pp. 150-151.) There is no merit to this argument. The prosecutor made an offer of proof that the Oklahoma conviction had been expunged, and the defense did not contest the offer, arguing instead that it did not matter whether there had been an expungement. Further, despite the trial court's open invitation to refute the Oklahoma expungement, the defense did not subsequently attempt to do so. Indeed, the expungement itself never has been a disputed factual issue in this case. In light of the uncontested offer of proof, and the subsequent lack of any dispute of over whether there had been an expungement of the Oklahoma conviction, there was no error.
Field next argues that the Oklahoma expungement statute is not "substantially equivalent" to section 1203.4; this is the core of the assignment of error.
(2) Generally speaking, "Expungement is a legislative provision, as opposed to executive, for the `eradication of a record of conviction or adjudication upon the fulfillment of prescribed conditions.... It is not simply the lifting of disabilities attendant upon conviction and a restoration of civil rights, though this is a significant part of its effect. It is rather a redefinition of status, a process of erasing the legal event of conviction or adjudication and thereby restoring to the regenerative offender his status quo ante.'" (United States v. Fryer (N.D.Ohio 1975) 402 F. Supp. 831, 834, quoting Grough, Expungement of Adjudication Records, 1966 Wash. U.L.Q. 147, 149.)
Section 1203.4 provides that a successful probationer "shall thereafter be released from all penalties and disabilities resulting from the offense...." (§ 1203.4, subd. (a).) In People v. Butler (1980) 105 Cal. App.3d 585, 587 [164 Cal. Rptr. 475], this court addressed the workings of section 1203.4 as follows:
*1787 "Section 1203.4 allows any convicted felon or misdemeanant who has been granted probation to petition to have his record expunged, after the period of probation has terminated. If the relief is granted, the probationer is relieved from some of the disabilities and penalties associated with being convicted.
"With exceptions not applicable here, petitioner is entitled to relief if he comes within any one of three fact situations: (a) he has fulfilled the conditions of his probation for the entire period; (b) he has been discharged before the termination of the period of probation; or (c) in any case in which a court, in its discretion and the interests of justice, determines he should be granted relief (§ 1203.4, subd. (a)). If the petitioner comes within either of the first two fact situations, the court is required to grant the requested relief [citation]. A grant of relief in the third situation is clearly discretionary."
This court also has observed: "A grant of relief under section 1203.4 is intended to reward an individual who successfully completes probation by mitigating some of the consequences of his conviction and, with a few exceptions, to restore him to his former status in society to the extent the Legislature has power to do so [citations]." (Selby v. Department of Motor Vehicles (1980) 110 Cal. App.3d 470, 473 [168 Cal. Rptr. 36].)
The California Legislature has seen fit to render convictions expunged pursuant to section 1203.4 as incompetent impeachment evidence for ordinary witnesses in civil or criminal trials. (See Evid. Code, § 788, subd. (c); see also People v. Mackey (1922) 58 Cal. App. 123 [208 P. 135].)[4] Expungement under section 1203.4, of course, does not obliterate a conviction for all purposes. For example, such an expunged conviction must be disclosed in applying for public office or license and may be considered by licensing authorities. (See § 1203.4, subd. (a); In re Phillips (1941) 17 Cal.2d 55, 59 [109 P.2d 344, 132 A.L.R. 644].) Also, records of a conviction expunged under section 1203.4 are accessible to the public. (See People v. Sharman (1971) 17 Cal. App.3d 550, 552 [95 Cal. Rptr. 134]; see also 3 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) § 1718, pp. 2031-2034 [remaining effects of conviction dismissed pursuant to § 1203.4].) (1b) Similarly, our review of Oklahoma case law indicates the obliterative effects of Oklahoma Statutes, title 22, section 991c are not absolute. Under Oklahoma law, once a conviction has been expunged pursuant to Oklahoma Statutes, title 22, section 991c the conviction is not a proper subject for impeachment *1788 (Belle v. State (Okla. Crim. App. 1973) 516 P.2d 551), but the Oklahoma statute does not authorize the trial court to expunge arrest records (see State ex rel. Hicks v. Freeman (Okla. Crim. App. 1990) 795 P.2d 110, 112.)
The main thrust of Field's attempts to show that the Oklahoma expungement statute is not substantially equivalent to section 1203.4 is that the two statutes differ procedurally. Under section 1203.4, the defendant applies to the court to withdraw his plea of guilty or plea of nolo contendere and enter a not guilty plea, or if convicted under a not guilty plea, to set aside the guilty verdict. (§ 1203.4, subd. (a).) Notice must be given to the prosecutor in the case. (§ 1203.4, subd. (d).) The Oklahoma statute, on the other hand, provides for expungement of the conviction upon completion of probation for those probationers who have not previously been convicted of a felony (Okla. Stat., tit. 22, § 991c); in other words, the statute does not contemplate an application process as does section 1203.4.
Field argues unpersuasively this procedural difference is substantive because in California expungement is not automatic and a California judge can review the probationer's overall record on probation before granting relief under section 1203.4. This distinction is de minimis. While section 1203.4 requires an application be made, the statute also provides that the probationer who fulfills the conditions of probation for the entire period of probation or who has been discharged before the termination of the probationary term is entitled as a matter of right to expungement of the conviction. (People v. Butler, supra, 105 Cal. App.3d at p. 587; see also People v. Hawley (1991) 228 Cal. App.3d 247, 249-250 [278 Cal. Rptr. 389]; but cf. People v. Chandler (1988) 203 Cal. App.3d 782, 788-789 [250 Cal. Rptr. 730] [expungement could be denied a probationer who did not pay restitution even though the trial court had not revoked probation].) The differences between the expungement statutes are not substantive in nature because in both states expungement is a matter of right except where the probationer has not successfully completed probation. In California, under such circumstances, expungement is within the court's discretion. (People v. Butler, supra, 105 Cal. App.3d at p. 587.) Moreover, Field's argument that Wilson would not have been able to have his conviction expunged under section 1203.4 because of probation violations is largely speculative because it assumes Wilson's purported probation violations would have come to the attention of authorities and those authorities would have moved to contest Wilson's right to expungement.
We are convinced, notwithstanding their procedural differences, that the respective expungement statutes of California and Oklahoma are substantially equivalent in that both were enacted to eradicate the record of conviction for certain purposes when a probationer has successfully completed *1789 probation. (Accord, People v. Wright (Colo.Ct.App. 1984) 678 P.2d 1072, 1074.) It is unrealistic to expect the legislatures of every state to adopt identical provisions for such procedures as expungement of convictions. (See, e.g., 21A Am.Jur.2d, Criminal Law, § 1021, p. 562 [return, destruction, or expungement of records or identification materials].) Furthermore, the classification of a foreign conviction is controlled by foreign law. (Truman v. Thomas (1980) 27 Cal.3d 285, 296, fn. 6 [165 Cal. Rptr. 308, 611 P.2d 902].) Under the law of Oklahoma, Wilson's Oklahoma conviction has been expunged and it is no longer a viable felony conviction. Under the law of California, the Oklahoma expunged conviction is not admissible for purposes of impeachment. (Ibid. [admissibility of a foreign conviction "is always governed by the law of this state"]; Evid. Code, § 788, subds. (c), (d).)
Finally, with respect to Wilson's Oklahoma conviction, appellate counsel argues that the expungement limitation on the admissibility of prior felony convictions under Evidence Code section 788 has been abrogated by Proposition 8.[5] We reject this argument.
In People v. Wheeler (1992) 4 Cal.4th 284, 288 [14 Cal. Rptr.2d 418, 841 P.2d 938], our Supreme Court reviewed Proposition 8's "Truth-in-Evidence" amendment to the state Constitution (see fn. 5, ante) and concluded it abrogated the rule that a felony conviction is the only form of conduct evidence admissible to impeach a witness's credibility. The Wheeler court also noted that the "Truth-in-Evidence" provision "supersedes all California restrictions on the admission of relevant evidence except those preserved or permitted by the express words of [the provision] itself." (4 Cal.4th at p. 291.)
Appellate counsel would have us conclude that under this constitutional provision expungement is no longer a viable ground for exclusion. We *1790 decline to reach that conclusion for the very fact of expungement prevents a prior conviction from being relevant evidence on the issue of one's credibility. "`Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) (3) A prior conviction is relevant to one's credibility if the conviction involves moral turpitude. (See People v. Castro (1985) 38 Cal.3d 301, 313-315 [211 Cal. Rptr. 719, 696 P.2d 111].) The legislative purpose behind expungement is that "no convicted person discharged after probation thenceforth should be regarded as one possessed of the degree of turpitude likely to affect his credibility as a witness." (People v. Mackey, supra, 58 Cal. App. at p. 131; see also People v. Jackson (1986) 177 Cal. App.3d 708, 712 [222 Cal. Rptr. 470].) Accordingly, we conclude the Truth-in-Evidence provision has no effect on the expungement limitation of Evidence Code section 788.
We also find it of no moment that the Proposition 8 provision calling for unlimited use of prior felony convictions (see fn. 5, ante) does not provide for expungement. A felony conviction is inadmissible hearsay except under Evidence Code section 788, which permits it for purposes of impeachment. Once a conviction has been expunged, it no longer is a viable conviction for impeachment purposes. (See Evid. Code, § 788, subd. (c).) In other words, by virtue of expungement, there no longer is a prior conviction.
B., C.[*]
.... .... .... .... .... .... .... .
II. Arguments Raised by Field in Propria Persona[*]
.... .... .... .... .... .... .... .
DISPOSITION
Affirmed.
Huffman, Acting P.J., and Froehlich, J., concurred.
A petition for a rehearing was denied February 24, 1995, and appellant's petition for review by the Supreme Court was denied May 10, 1995.
NOTES
[1] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts IB through II inclusive.
[*] Judge of the San Diego Superior Court sitting under assignment by the Chairperson of the Judicial Council.
[2] All statutory references are to the Penal Code unless otherwise specified.
[3] The trial court instructed the jury (1) the testimony about the police shooting was admitted for the limited purpose of understanding why Wilson acted in a particular way and (2) "[f]urther investigation has indicated the defendant had no connection to the shooting of any police officer."
[4] This rule does not apply to a criminal defendant who takes the stand in his own trial; such a defendant may be impeached with a conviction that had been expunged pursuant to section 1203.4. (See Evid. Code, § 788, subd. (c); People v. James (1940) 40 Cal. App.2d 740, 746 [105 P.2d 947].)
[5] Appellate counsel refers to the following two provisions of Proposition 8:
"Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press." (Cal. Const., art. I, § 28, subd. (d).)
"Use of Prior Convictions. Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding. When a prior felony conviction is an element of any felony offense, it shall be proven to the trier of fact in open court." (Cal. Const., art. I, § 28, subd. (f).)
[*] See footnote 1, ante, p. 1778. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263139/ | 27 F.Supp. 556 (1939)
UNION CENTRAL LIFE INS. CO.
v.
BURGER et al.
District Court, S. D. New York.
April 4, 1939.
House, Grossman, Vorhaus & Hemley, of New York City (David Vorhaus, of New York City, of counsel), for plaintiff.
Joseph Burger, of New York City, for defendants.
LEIBELL, District Judge.
Plaintiff brought this action to rescind and cancel an insurance policy issued by it on the life of one Dewey D. Burger, now deceased, on the ground that the statements and warranties made by the insured in his application for the policy were false. The defendants are the beneficiaries named in the policy.
On or about March 8th, 1939, after issue had been joined in this action, plaintiff served notice under Rule 30(a), 28 U.S.C.A. following section 723c, upon Phoebe Burger and Mildred Burger that their oral testimony would be taken pursuant to the deposition and discovery procedure under Rule 26 et seq. of the Federal Rules of Civil Procedure. The notices are identical in every respect. The defendants then made this motion under Rule 30(b) to vacate and modify the said notices as to items Nos. 2, 5 and 6 thereof. These items of the notice provide that testimony is to be taken in regard to:
"(2) The physical condition, habits and activities of Dewey D. Burger subsequent to September 30th, 1936, in so far as they have any bearing upon or are evidence of his physical condition on September 30th, 1936;"
"(5) The circumstances, facts and particulars of Dewey D. Burger's last illness in so far as they have any bearing upon, or are evidence of his physical condition on September 30th, 1936;
*557 "(6) The events, incidents and occurrences on the date of Dewey D. Burger's death, including conversations had by the deceased or by the defendants and conversations in the presence of the deceased and the defendants;"
Under Rule 26(b), Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the scope of an examination is very broad and the deponent may be examined on any matter, not privileged, which is relevant to the subject matter involved in the action. But any party or the person to be examined may challenge the right to the examination or seek to limit its scope under Rule 30(b). The defendants contend that the three aforementioned items are not proper subjects of examination because the information sought to be elicited by these items would not be admissible as evidence at the trial of this action.
Ordinarily examinations under Rule 26(b) should conform to general rules of admissibility of evidence as tested by Rule 43(a). However, in view of the liberality and freedom of action which were intended to be achieved under the new Rules (See, Laverett v. Continental Briar Pipe Co. Inc., D.C., 25 F.Supp. 80), I do not think that the Court should limit an examination on a motion of this type unless the information sought upon the examination is clearly privileged or irrelevant.
When a motion, such as this one, is made pursuant to Rule 30(b) before the examination, it may at times be difficult for the Court to pass upon the admissibility of evidence solely upon the pleadings and the affidavits submitted. In such a case the better procedure would be for the objecting party to raise the question of admissibility at the examination and by a motion under Rule 30(d) or when the deposition is used at the time of the trial pursuant to Rule 26(e).
Now, with respect to the items to which objection is made on the present motion; I think Nos. 2 and 5 are relevant to the subject matter of the action. I cannot now decide the question of the admissibility of the evidence that may be developed through an examination under these items. The limits of time over which such evidence may range must depend on the circumstances of the case and should be left to the discretion of the trial judge. See, Wigmore on Evidence, 2d Ed., § 225. I find no valid objection to these items at this time.
However, the relevancy and admissibility of all the information sought by item No. 6 are not apparent. Any matters that might at the trial be relevant under this item seem to be included under the other items of the notice.
Objection is made to the examination of Phoebe Burger on the ground that she is an infant, sixteen years of age. I do not think that this fact, in and of itself, is sufficient to vacate the notice of examination served upon her. However, if she is busy at school or otherwise engaged, I will direct that her deposition be taken at some convenient time and place.
Submit an order in accordance with this memorandum on two days' notice. Unless the parties agree upon a date, I will fix the date for the examinations when the order is submitted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743554/ | 289 Wis. 2d 550 (2006)
710 N.W.2d 725
2006 WI App 31
STATE v. McCREE.[]
No. 2005AP000591 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/2263200/ | 893 A.2d 1 (2006)
383 N.J. Super. 562
FIRST UNION NATIONAL BANK, as Indenture Trustee, Plaintiff-Respondent,
v.
PENN SALEM MARINA, INC., Marvin K. Hitchner, Jr., Defendants-Appellants, and
Marvin K. Hitchner, III, Defendant.
Superior Court of New Jersey, Appellate Division.
Argued February 1, 2006.
Decided February 17, 2006.
*2 Todd W. Heck, Vineland, argued the cause for appellants (Basile & Testa, attorneys; Mr. Heck, on the brief).
James B. Daniels, argued the cause for respondent (Budd Larner, attorneys; Mr. Daniels, Christopher P. Anton, Short Hills, and Josh M. Mann, Morristown, on the brief).
*3 Before Judges CONLEY, WEISSBARD[1] and WINKELSTEIN.
The opinion of the court was delivered by
WINKELSTEIN, J.A.D.
In this mortgage foreclosure action, we are called upon to decide whether the amount of a previously adjudicated Law Division judgment obtained on the note evidencing the underlying debt limits the amount of the foreclosure judgment. We conclude that it does not, and affirm the January 13, 2005 final judgment in foreclosure.
The material facts are not in dispute. On May 4, 2001, defendants Marvin Hitchner, Jr. (Hitchner) and Penn Salem Marina (collectively, defendants), executed and delivered to Interbay Funding a promissory note (the note) in the sum of $750,000. The note was secured by a mortgage executed that same date and guaranteed by defendant Marvin Hitchner, III.[2] The mortgage was a lien against defendants' commercial real property, a marina, in Pennsville. Interbay assigned the note and mortgage to plaintiff, First Union National Bank.
The note called for defendants to pay interest at the rate of 13.5 percent per year, with monthly installments commencing July 1, 2001, and the entire principal and all accrued and unpaid interest payable on June 1, 2016. Additional relevant portions of the note include:
4. DEFAULT AND ACCELERATION. If any payment required in this Note is not paid (a) prior to the fifth (5th) day after a Payment Date,... or (c) on the happening of any other default ... or under the terms of ... any of the Other Security Documents... at the option of Lender (i) the whole of the principal sum of this Note, (ii) interest, default interest, late charges and other sums, as provided in this Note, the Security Instrument or the Other Security Documents, (iii) all other monies agreed or provided to be paid by Borrower in this Note, the Security Instrument or the Other Security Documents, (iv) all sums advanced pursuant to the Security Instrument to protect and preserve the Property and any lien and security interest created thereby, and (v) all sums advanced and costs and expenses incurred by Lender in connection with the Debt (defined below) or any part thereof ... shall without notice become immediately due and payable.
(Emphasis added).
. . . .
8. WAIVERS. [A]nd no ... waiver of any provision of this Note, ... or the Other Security Documents made by agreement between Lender or any other person or party shall release, modify, amend, waive, extend, change, discharge, terminate or affect the liability of Borrower, ... under this Note, ... or the Other Security Documents. No notice to or demand on Borrower shall be deemed to be a waiver of the obligation of Borrower or of the right of Lender to take further action ... as provided for in this Note ... or the Other Security Documents.
. . . .
*4 12. INCORPORATION BY REFERENCE. All of the terms, covenants and conditions contained in the Security Instrument and the Other Security Documents are hereby made part of this Note....
The mortgage instrument, like the note, reflected a principal amount of $750,000, and secured the performance of the obligations under the note. Among its terms, it listed the mortgagee's remedies in the event the borrowers defaulted.
Section 9.1 REMEDIES. Upon the occurrence of any Event of Default, to the extent permitted by applicable law, Borrower agrees that Lender may take any action available at law, in equity, and as otherwise provided in this Security Instrument, without notice or demand, as it deems advisable to protect and enforce its rights against Borrower in and to the Property, including, but not limited to the following actions, each of which may be pursued concurrently or otherwise, at such time and in such order as Lender may determine, in its sole discretion, without impairing or otherwise affecting the other rights and remedies of Lender:
. . . .
(b) institute proceedings, judicial or otherwise, for the complete foreclosure of this Security Instrument ...;
. . . .
(f) recover judgment on the Note either before, during or after any proceedings for the enforcement of this Security Instrument or the Other Security Documents[.]
The remedies were cumulative. Section 9.7, OTHER RIGHTS. ETC., permitted the lender to:
(c) [R]esort for the payment of the Debt to any other security held by or guaranties given to Lender in such order and manner as Lender, in its discretion, may elect. Lender may take action to recover the Debt, or any portion thereof, or to enforce any covenant hereof without prejudice to the right of Lender thereafter to foreclose this Security Instrument. The rights of Lender under this Security Instrument shall be separate, distinct and cumulative and none shall be given effect to the exclusion of the others. No act of Lender shall be construed as an election to proceed under any one provision herein to the exclusion of any other provision. Lender shall not be limited exclusively to the rights and remedies herein stated but shall be entitled to every right and remedy now or hereafter afforded at law or in equity.
Defendants defaulted in their monthly payments. Consequently, on January 13, 2003, plaintiff filed a complaint in the Law Division seeking to collect the balance due on the note. Defendants failed to answer and on August 8, 2003, a final judgment by default was entered for $845,779.72.
While the Law Division action was pending, on February 4, 2003, plaintiff commenced a foreclosure action, to which defendants filed an answer and counterclaim. The court subsequently granted plaintiff's summary judgment motion; the court dismissed defendants' counterclaim, and remanded the complaint to the Office of Foreclosure of the Administrative Office of the Courts (Foreclosure Unit) to proceed as an uncontested matter.
In June 2004, plaintiff moved for entry of final judgment in the Foreclosure Unit. Accompanying the motion was a certification of amount due of $1,043,085.10. The primary difference between the amount of the judgment on the note ($845,779.72) entered in August 2003 and the amount requested in the 2004 foreclosure action represented additional accrued interest; advances made by the bank, which were *5 authorized under the terms of the mortgage for real estate taxes, forced placement of insurance, and property preservation; and for prepayment penalties. Plaintiff did not seek to recover those damages in the Law Division action.
In a letter to the Foreclosure Unit on November 1, 2004, defendants claimed that because the Law Division judgment was based on the same underlying indebtedness as the foreclosure action the May 4, 2001 promissory note the foreclosure judgment should not exceed $845,779.72, the amount of the final judgment entered in the Law Division.[3] Defendants frame their argument on appeal as follows: "[t]he earlier, final Law Division judgment operates as res judicata to affix the amount of the appellants' indebtedness to the plaintiff-respondent." Plaintiff responds that neither the doctrine of res judicata nor collateral estoppel acts as a limitation upon the amount of the foreclosure judgment. We agree with plaintiff.
"[R]es judicata and collateral estoppel serve to insulate courts from the relitigation of claims and issues, and to prevent harassment to parties...." Culver v. Ins. Co. of N. Am., 115 N.J. 451, 468, 559 A.2d 400 (1989). To determine whether two causes of action are the same for purposes of res judicata, we examine the similarity of the acts complained of, the demand for relief, the theory of recovery, the witnesses and documents necessary at trial, and the material facts. Id. at 461-62, 559 A.2d 400. Collateral estoppel, considered "a branch of res judicata, bars a party from relitigating issues which were actually litigated and determined in a prior case involving a different claim or action." N.M. v. J.G., 255 N.J.Super. 423, 431, 605 A.2d 709 (App.Div.1992).
As applied to the collection of a debt secured by a mortgage, neither res judicata nor collateral estoppel limit the amount of the foreclosure judgment to the amount of the judgment on the note.
A note, or bond, is a contract by the obligor to pay a debt. Colton v. Depew, 60 N.J. Eq. 454, 458, 46 A. 728 (E. & A.1900). The mortgage, "which is a conveyance of an estate in the mortgaged premises," is security for the payment of the underlying debt. Ibid.; 29 N.J. Practice, Law of Mortgages, § 4.1 at 196-204 (Myron C. Weinstein) (2001). To enforce the terms of a note and a mortgage requires discrete actions. A suit on a note is in personam, that is, against an individual involving personal rights, see Black's Law Dictionary, 711 (5th ed. 1979), while an action in foreclosure is quasi in rem, providing relief only against the property subject to the mortgage lien. Bache-Wiig v. Fournier, 299 B.R. 245, 249 (Bankr. D.Me.2003); Montclair Savs. Bank v. Sylvester, 122 N.J.Eq. 518, 521, 194 A. 811 (E. & A.1937); Resolution Trust Corp. v. Berman Indus., Inc., 271 N.J.Super. 56, 62, 637 A.2d 1297 (Law Div.1993); Central Penn Nat'l Bank v. Stonebridge Ltd., 185 N.J.Super. 289, 302-03, 448 A.2d 498 (Ch. Div.1982).
Though a judgment arising out of a suit on a note constitutes a lien *6 against all of a defendant's real property, a mortgage foreclosure suit gives the creditor the right to collect the amount due only from the land subject to the mortgage lien. Montclair, supra, 122 N.J.Eq. at 521, 194 A. 811; Mann v. Bugbee, 113 N.J.Eq. 434, 439, 167 A. 202 (Ch.Div.1933). Nevertheless, the foreclosure suit does not preclude a creditor from seeking a deficiency against a debtor's assets other than that subject to the lien of the mortgage. Montclair, supra, at 521, 194 A. 811; Mann, supra, 113 N.J.Eq. at 439-440, 167 A. 202.
When a debt is secured for a business or commercial purpose, as here, it is not necessary that the mortgage be foreclosed before an action on the note is brought; the creditor may bring an action on the note alone. N.J.S.A. 2A:50-2.3; N.J.S.A. 2A:50-2; Summit Trust Co. v. Willow Bus. Park, L.P., 269 N.J.Super. 439, 446, 635 A.2d 992 (App.Div.) (where mortgage loans involve commercial transaction, lenders not required to foreclose mortgage before seeking judgment on note), certif. denied, 136 N.J. 30, 641 A.2d 1041 (1994).
A mortgage lien survives after a judgment is entered on the underlying note. In re Duback, 330 B.R. 337, 339 (Bankr.D.R.I.2005); Bache-Wiig, supra, 299 B.R. at 249; Colton, supra, 60 N.J. Eq. at 458, 46 A. 728. Until the mortgage debt is actually satisfied, "the recovery of a judgment on the obligation secured by a mortgage, without the foreclosure of the mortgage, although merging the debt in the judgment, has no effect upon the mortgage or its lien, does not merge it, and does not preclude its foreclosure in a subsequent suit instituted for that purpose...." 55 Am.Jur.2d Mortgages § 524 (1996). And, even while the underlying obligation may become unenforceable by reason of the expiration of the statute of limitations, or a bankruptcy by the maker of the obligation, a mortgagee may nevertheless enforce the mortgage through a foreclosure action. 29 N.J. Practice, supra, § 4.1 at 200-02.
Thus, it is clear that our jurisprudence has traditionally treated a lawsuit to enforce the terms of a note as distinct from a mortgage foreclosure action. While the lawsuits are connected in the sense that they arise from a default by the debtor on one or more terms of the note and/or mortgage, each action presents a creditor with different remedies, each independent of the other. In a Law Division action, the lender seeks a money judgment. In a foreclosure action, the lender seeks not only to fix the amount due on the note and mortgage, but possession of the mortgaged premises; that the debtors be foreclosed of all equity of redemption in the mortgaged property; and the property be sold to satisfy the debt.
As an additional indication of the difference between the two actions, it is notable that a suit on the underlying indebtedness is specifically precluded by court rule from being joined in a foreclosure action. See R. 4:64-5 (precluding non-germane claims, which encompasses claims on the underlying obligation, from being joined in a mortgage foreclosure proceeding); Family First Fed. Savs. Bank v. DeVincentis, 284 N.J.Super. 503, 512, 665 A.2d 1119 (App.Div.1995) (same); see also Prevratil v. Mohr, 145 N.J. 180, 195, 678 A.2d 243 (1996) (entire controversy doctrine does not require that judgment on underlying indebtedness be joined in foreclosure action, or vice versa) (citing R. 4:64-5).
Facing a similar but not identical issue, a bankruptcy court in Maine found that because an action on a promissory note and a foreclosure action on a securing mortgage are distinct, res judicata, or *7 claim preclusion, "will not bar recovery on a mortgage after judgment on the underlying debt." Bache-Wiig, supra, 299 B.R. at 249. The court grounded its decision on the difference between the actionsthat the lawsuit to enforce the note was in personam, while the mortgage foreclosure was quasi in rem. Ibid.; cf. Resolution Trust Corp., supra, 271 N.J.Super. at 62, 637 A.2d 1297; Mann, supra, 113 N.J. Eq. at 439-40, 167 A. 202 (right to require a defendant to be personally responsible for debt not part of foreclosure suit, but must abide "suit for personal judgment for deficiency"); see also Summit Trust Co., supra, 269 N.J.Super. at 448-49, 635 A.2d 992 (emphasizing different rights afforded to lender by the note as opposed to the mortgage instrument).
Given the differences between actions to collect a debt under a note and to foreclose a mortgage, to limit the foreclosure judgment to the amount recovered in the Law Division action would not foster the principles of either res judicata or collateral estoppel "to insulate courts from the relitigation of claims and issues. and to prevent harassment to parties." See Culver, supra, 115 N.J. at 468, 559 A.2d 400. Simply put, the actions reflect different claims with different issues. Fairness to defendants does not require the process to end after the first lawsuit, which is a primary justification for the application of either res judicata or collateral estoppel. See Restatement (Second) of Judgments § 19 comment a (1982) ("The rule that a defendant's judgment acts as a bar to a second action on the same claim is based largely on the ground that fairness to the defendant, and sound judicial administration, require that at some point litigation over the particular controversy come to an end.").
Defendants also contend that because at the time plaintiff filed suit on the note it was in a position to seek, in that suit, reimbursement for advances made under the mortgage through that date, it waived the right to seek those advances in the subsequent foreclosure proceeding. We disagree. Paragraph four of the note recited that in the event defendants defaulted, "at the option of Lender ... all other monies agreed or provided to be paid by [defendants] in this Note, [and] the [mortgage] ... shall ... become immediately due and payable." This language did not require the lender to seek those additional charges in a suit on the note, but simply gave the lender the option to do so. And too, the note provided that plaintiff could waive the note's provisions without affecting defendant's liability.
The mortgage instrument also afforded plaintiff the option of how and in what manner to collect the debt in the event defendants defaulted. It allowed plaintiff to
take action to recover the Debt, or any portion thereof, or to enforce any covenant hereof without prejudice to the right of [plaintiff] thereafter to foreclose this [mortgage]. The rights of [plaintiff] under this [mortgage] shall be separate, distinct and cumulative and none shall be given effect to the exclusion of the others.
Plaintiff was permitted to seek judgment either under the note or mortgage, or both, and in no particular order. Hence, defendants' argument that plaintiff is collaterally estopped from collecting sums not demanded in its suit on the note is belied by defendants' specific agreement to the contrary in both the note and the mortgage.
As authority for their position, defendants rely upon In re Mitchell, 281 B.R. 90 (Bankr.S.D.Ala.2001). In Mitchell, the issue was whether the mortgage lien survived after the note was reduced to judgment, *8 or if by electing to sue on the note, the lender gave up its security status and waived its rights under the mortgage. Id. at 91. Defendants point to the language in Mitchell that states: "[a]s to all issues concerning the note, including the amount owed, the judgment is a final determination of those issues and res judicata applies. Although the judgment does not destroy the lien of the mortgage, it judicially determines the amount thereof." Id. at 93.
For two reasons, we respectfully disagree with the court's conclusion that the judgment on the note judicially determines the amount of the mortgage. First, both by contract the note and mortgage and by established legal precedent, plaintiff had the option to seek redress either from the note or mortgage; and, seeking a judgment under one does not bar, or limit, a judgment under the other. Second, the Mitchell court relied on In re Clark, 738 F.2d 869 (7th Cir.1984), for its conclusion that the judgment arising out of the suit on the note determines the amount due under the mortgage. See Mitchell, supra, 281 B.R. at 93. In Clark, however, the "judgment" that determined the amount of the mortgage was not a separate judgment on a note, but the foreclosure judgment itself. Id. at 871. The Mitchell court's reliance on Clark, therefore, to conclude that the suit on the note judicially determined the amount of the mortgage, was, in our opinion, misplaced.
In sum, plaintiff's remedies under the mortgage remained, despite the previously obtained judgment on the note. Defendants' position would blur the lines between the two proceedings, and disturb over one hundred years of legal precedent. Actions to enforce a mortgage and its underlying promissory instruments are separate, and should be so treated.
We affirm the judgment of foreclosure.
NOTES
[1] Judge Weissbard did not participate in oral argument. With the consent of counsel, he has joined in this opinion.
[2] Defendant Marvin Hitchner, III is not a party to this appeal.
[3] The record does not reveal whether this letter was considered by the Foreclosure Unit. While in an uncontested foreclosure proceeding a debtor is entitled to notice of the proposed amount of the judgment, see R. 4:64-1(b), the New Jersey Court Rules do not provide a procedure to address a debtor's objections to the amount requested. Nor does the rule governing the Office of Foreclosure give it the authority to resolve this type of disputed issue. See R. 1:34-6. While receipt of an objection would suggest that the case is no longer uncontested, and should be returned to the general equity judge in the vicinage in which the complaint was filed, that did not occur here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333676/ | 281 S.C. 522 (1984)
316 S.E.2d 404
The STATE, Respondent,
v.
James Haskell SULLIVAN, Appellant.
22113
Supreme Court of South Carolina.
Heard April 2, 1984.
Decided May 23, 1984.
*523 O.W. Bannister, Jr., of Hill, Wyatt & Bannister, Greenville, for appellant.
Atty. Gen. T. Travis Medlock, and Asst. Attys. Gen. Harold M. Coombs, Jr., and Carolyn M. Adams, Columbia, and Sol. William T. Jones, Greenwood, for respondent.
Heard April 2, 1984.
Decided May 23, 1984.
LITTLEJOHN, Chief Justice:
A jury convicted James Haskell Sullivan, Appellant, of forgery. Before the trial, Sullivan moved to suppress certain items of evidence seized by agents of the South Carolina Tax Commission (Commission) from his premises. The trial judge denied this motion. Sullivan has appealed alleging that the search warrant authorized a general search and, therefore, failed to meet state and federal constitutional requirements. We affirm.
From information supplied to it by H & R Block, an income tax returns agency, the Commission discovered that a number of tax returns had been altered to show higher deductions and different addresses of taxpayers from those returns initially prepared by H & R Block. One of those addresses was that of Sullivan, who also prepares tax returns. With the higher deductions, the taxpayers were entitled to a refund. Some of those refund checks were mailed to Sullivan's address.
From this information and affidavits from six taxpayers, agents for the Commission obtained a warrant to search Sullivan's home where he operated an office. The warrant authorized the agents to seize: (1) "copies of income tax returns and documents relating thereto" and (2) "books and records reflecting income and expenses relating to the preparation of income tax returns." The agents searched Sullivan's home and seized five file cabinets, three trash cans and their contents, and items from Sullivan's desk.
Sullivan contends that the trial judge erred by refusing to suppress this evidence because the description of the items to be seized was not sufficiently specific. Sullivan admits that probable cause existed but argues that it existed only for the agents to seize the books and records relating to the specific taxpayers who were interviewed or whose returns were examined. *524 Because the search warrant did not limit the search to the books and records of those individuals, Sullivan argues that it was unconstitutionally vague.
The accompanying affidavit stated that over two hundred returns prepared by Sullivan, or under his supervision, contained addresses that were not those of the taxpayers. The warrant itself restricted the search to evidence having to do strictly with income tax returns and the preparation thereof.
The Fourth Amendment to the Constitution of the United States and the corresponding provision in the South Carolina Constitution prohibiting unreasonable searches are not to be construed too technically especially where business enterprises are concerned. Here, we have an individual operating "Sullivan's Tax Service." The business operation was from his home. There is no contention that any of the building used as a residence was searched. The affidavits presented to the magistrate stated: "A computer listing of 1981 state tax returns prepared by Sullivan or under his supervision and reflecting addresses on returns other than the taxpayers exceeds two hundred."
A search warrant too technical might require law enforcement officers to sift through the records for an extended period of time. There is no contention that the search was not reasonable. The sole contention is that the search was too broad. Rules relative to the search of an automobile are somewhat relaxed in contrast to the search of a home. By a similar token, in determining whether an office has been searched unreasonably depends upon the nature of business enterprises and the nature of the objects sought. Not all searches are prohibited; only those which are unreasonable are not permitted.
In the case of United States v. Wuagneux, 683 F. (2d) 1343 (11th Cir.1982), the court made an observation relative to searches which has appeal and we think applicable here. It said:
It is universally recognized that the particularity requirement must be applied with a practical margin of flexibility, depending on the type of property to be seized, and that a description of property will be acceptable if it is as specific as the circumstances and nature of activity under investigation permit.
*525 We agree with the trial judge who obviously thought that the search which took place in Sullivan's office was reasonable.
Affirmed.
NESS, GREGORY and HARWELL, JJ., and J. WOODROW LEWIS, Acting Associate Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333503/ | 144 Ga. App. 383 (1977)
241 S.E.2d 273
FORD MOTOR CREDIT COMPANY
v.
SPICER.
53798.
Court of Appeals of Georgia.
Argued April 5, 1977.
Decided November 29, 1977.
Rehearing Denied December 19, 1977.
Levine, D'Alessio & Cohn, Sam F. Lowe, Jr., Morton P. Levine, for appellant.
Reeves & Collier, Rex T. Reeves, Merrell Collier, for appellee.
McMURRAY, Judge.
Edward A. Spicer sued Ford Motor Credit Company and Leader Lincoln-Mercury, Inc. for the conversion of a certain Lincoln automobile of the value of $8,695.50 claiming title or a valuable interest therein and the right *384 of possession. In Count 1 plaintiff seeks the value of the hire of the automobile at the rate of $20 per day from October 29, 1969, up to July 2, 1970, in the amount of $4,920, and further hire at that rate per day until trial and final judgment. In Count 2 he alleges conversion of his property in the amount of the value of the automobile, the sum of $475 personal property located in said automobile (money: nickels, dimes and quarters) and aggravating circumstances in said conversion, and alleges defendants are guilty of aggravating circumstances in said conversion to which he is entitled to additional punitive damages to deter the wrongdoers from repeating the trespass in the amount of $100,000, as well as the hire shown above. He also seeks attorney fees in the amount of $5,000 contending the defendants have acted in bad faith, have been unduly litigious and have caused the plaintiff unnecessary trouble and expense. In Count 3 he alleges other facts and circumstances surrounding the transaction in regards to the sale and purchase, communications between the plaintiff and defendants as to the deferred payments, payments made; and with reference to the seizure of the automobile, the illegal taking of the automobile by the defendants on October 29, 1969, the demand for the automobile from the defendants and their refusal to return the automobile, and the wrongful acts in taking the automobile compounded by wrongful and untruthful false information made to the Credit Bureau of Atlanta with reference to his credit. He sought the value of the automobile, hire as shown above, $150,000 punitive damages to deter the defendants as wrongdoers from repeating the trespass and $5,000 attorney fees for bad faith and for being unduly litigious.
During the trial Leader Lincoln-Mercury, Inc. was dismissed on motion for directed verdict and is no longer a party to this litigation. Separate motions for directed verdict were made by the other defendant at the conclusion of plaintiff's case (1) as to actual damages and hire; (2) the right to recover punitive damages; and (3) the right to recover attorney fees. These motions were denied. Plaintiff made a motion for directed verdict in his favor on the issue of liability, which was granted. Plaintiff *385 amended each count of his complaint during trial to conform to the evidence and also sought as a part of his damages expenses for attorney fees in the amount of $16,240. A verdict was returned by the jury in favor of the plaintiff in the amount of $8,758.77 actual damages, $38,500 punitive damages; and $16,240 in attorney fees.
Defendant Ford Motor Credit Company thereafter moved for judgment notwithstanding the verdict or in the alternative for a new trial, which motion, as later amended, was denied. Defendant appeals. Held:
1. The uncontroverted evidence shows that the plaintiff received no notice of Ford Motor Credit's decision to declare the balance of the loan immediately due and to repossess the automobile. Substantially similar language as that in the contract at bar has been construed to require that the creditor take affirmative action to notify the debtor of its election to declare the contract in default and to accelerate it to maturity. The peremptory taking of the automobile without any such notice constituted a tort which entitles plaintiff to sue. Some affirmative action must be taken by the creditor evidencing his intention to take advantage of the acceleration clause. Lee v. O'Quinn, 184 Ga. 44, 45 (2) (190 SE 564). The UCC (Code Ann. § 109A-9-503; Ga. L. 1962, pp. 156, 422) does authorize a secured party upon default to take possession of the collateral "unless otherwise agreed." Here the parties entered into a lengthy agreement whereby seller (in the event of default) had the right to declare all amounts "due or to become due" to be immediately due and payable and then seller would have all the rights of a secured party under the UCC. See in this connection Ford Motor Credit Co. v. Hunt, 144 Ga. App. 281. See also in this connection Chrysler Credit Corp. v. Barnes, 126 Ga. App. 444, 451 (191 SE2d 121). Compare Fulton Nat. Bank v. Horn, 239 Ga. 648. The trial court did not err in directing the verdict on the liability issue in favor of the plaintiff.
2. Defendant's position in the matter, as disclosed by the evidence, is that plaintiff purchased the automobile from defendant Leader (no longer a party) on August 6, 1969, paying for same with a Georgia retail installment contract which was assigned to Ford Motor Credit, account number CFA 408CX92 (not shown on contract *386 but later assigned on or about October 25, 1969). The unpaid balance was $6,256 plus finance charge of $1,098.42 and other itemized charges of $794.80, that is, $8,149.22, to be paid by a balloon interest free payment of $2,172.50 due in 29 days (shown to be due 9-4-69), with deferred payments for 36 monthly installment payments of $166.02, commencing one month after date (shown to be due 9-20-69).
Defendant contends that plaintiff had another account with it on an Econoline van (No. CFA 133BK48); that its collection and bookkeeping was handled by the First National Bank of Atlanta; that when plaintiff deposited a check for $2,167 (this amount rather than $2,172.50 is admitted to be the correct amount of the balloon payment due to a $5 overcharge) on or about September 25, 1969, an employee of the bank wrote on this check CFA 133BK48 (although the check does show the manufacturer's serial number of the Lincoln automobile). This was the Econoline van account, and this money was credited to that account (September 30, 1969, when cashed) instead of on the new account number CFA408CX92 (Note: Plaintiff did not have the account number on that date.) Defendant contends the evidence establishes the Econoline van number had to be furnished by plaintiff mailed to the post office box, contending this was done as per plaintiff's instructions (which plaintiff denies), and that it had a right, having made several demands upon plaintiff, to apply it to the claims it directs. Defendant cites Code § 20-1006; Hatcher & Baldwin v. Comer & Co., 75 Ga. 728, 732; Johnson v. Johnson, 30 Ga. 857; and Milford v. Shackelford, 17 Ga. App. 436 (87 SE 603); that since it was not applied as plaintiff contends but as it had a right to direct, plaintiff was in default on the Lincoln contract, and it had a right to repossess the automobile on October 29, 1969. As to liability, this question is settled by Division 1 above. But as to bad faith in the transaction, this was for jury determination as to these questions of fact as to what actually occurred.
Defendant also contends the September 20, 1969, and October 20, 1969, payments of $166.02, that is, $332.04 paid by check dated 10/27/69, by plaintiff was not payment since he later stopped payment. It cites Code § *387 20-1004; Code Ann. § 109A-2-511 (Ga. L. 1962, pp. 156, 209) and Pichulik v. Simpson, 123 Ga. App. 604, 606 (181 SE2d 925), contending plaintiff was in default as to these payments on the date of repossession. But the stop payment order on this payment check was placed after the automobile had been repossessed on October 29, 1969. Thus, there was an issue of fact for jury determination as to whether or not plaintiff was in default on October 29, 1969, when defendant repossessed the automobile, and as to defendant's good or bad faith in the repossession. The jury elected to believe plaintiff was not in default, that there was a conversion of the automobile of the value of $8,788.77; that the conversion was attended with aggravating circumstances in the act (wilful, and wanton conduct) so as to justify punitive or exemplary damages including bad faith, unnecessary expense and trouble to plaintiff so as to also award attorney fees. Ford Motor Credit's right hand does not seem to have known what its left was doing at the time advising plaintiff of a billing error and how to make payment on October 25, 1969, yet proceeding to repossess the automobile four days later by purchasing a duplicate key and surreptitiously taking possession of it. Defendant thereafter refused to acknowledge its mistake but proceeded to notify plaintiff of its intention to sell and seek a deficiency judgment (11-7-69). The evidence authorized the verdict, and it has not been shown to be based upon any bias or prejudice toward defendant.
3. "To authorize the imposition of punitive damages, there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Southern Ry. Co. v. O'Bryan, 119 Ga. 148 (45 SE 1000)." Central of Ga. R. Co. v. Sowell, 3 Ga. App. 142 (59 SE 323). See also Ford Motor Credit Co. v. Hitchcock, 116 Ga. App. 563, 565 (4) (158 SE2d 468).
The deposition of Gravitt, a credit coordinator with Ford Motor Credit Company, who was formerly a collection coordinator, was read into the record. He testified as to plaintiff's account which had been assigned to him for handling, that the day after the repossession *388 the records of Ford Motor Credit Company showed that all sums due from plaintiff had been paid, but that he made no offer to return plaintiff's automobile or inform him of the error made in repossessing plaintiff's automobile. From the fact that Ford Motor Credit Company continued to withhold plaintiff's automobile after learning of its error in crediting payment of $2,167 to the wrong account and receiving the two monthly payments totaling $332.04, the jury was authorized to infer that the repossession was malicious from the time it was carried out on October 29, 1969. Compare Johnson v. Monumental Properties, Inc., 141 Ga. App. 151 (1) (232 SE2d 644).
4. "Attorney's fees as expenses of litigation are not punitive or vindictive damages, but stand alone, are regulated by Code § 20-1404, and the jury may allow them if the defendant has acted in bad faith in the transaction out of which the cause of action arose. Mosely v. Sanders, 76 Ga. 293; Traders Insurance Co. v. Mann, 118 Ga. 381 (45 SE 426); O'Neal v. Spivey, 167 Ga. 176 (145 SE 71); Grant v. Hart, 197 Ga. 662, 671 (30 SE2d 271), and the cases there cited." Williams v. Harris, 207 Ga. 576, 579 (3) (63 SE2d 386). See also Bowman v. Poole, 212 Ga. 261, 262 (3) (91 SE2d 770); Standard Oil Co. v. Mt. Bethel United Methodist Church, 230 Ga. 341, 343 (3) (196 SE2d 869).
Although Ford Motor Credit Company contends that the evidence in the case sub judice does not show the existence of any bad faith on their part, there was evidence from which the jury could have concluded that plaintiff was not in default at the time of the repossession of his car. Consequently, the jury was authorized to conclude that the refusal of Ford Motor Credit Company to return plaintiff's automobile, except under terms which would have been authorized only if there had in fact been a default by plaintiff, was an act declaring bad faith and wanton disregard for the property rights of the plaintiff.
Ford Motor Credit Company also contends that the award of attorney fees was improper and should be stricken on the ground that the jury did not award the plaintiff an amount which closely approximated the amount claimed by plaintiff in his complaint. As *389 previously noted herein plaintiff amended each count of his complaint during trial to conform to the evidence and also sought as a part of his damages expenses for attorney fees in the amount of $16,240. This contention urged by Ford Motor Credit Company would be applicable if this action were based on contract, but this action sounds in tort, and therefore the cases relied upon by Ford Motor Credit Company are inapposite. Buffalo Cab Co. v. Williams, 126 Ga. App. 522, 525 (191 SE2d 317). The evidence here supports the amount of attorney fees awarded.
5. All of the enumerations of error raised by defendant are considered and ruled upon in the preceding divisions, and none has been found to be meritorious.
Judgment affirmed. Bell, C. J., and Smith, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/520936/ | 871 F.2d 1096
10 U.S.P.Q.2d 2036
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.BENCHCRAFT, INC., Riverside Furniture Corp., and HickoryHill Furniture Co., a/k/a Crestline Furniture Co.,Plaintiffs-Appellees,v.BROYHILL FURNITURE INDUSTRIES, INC., Defendant-Appellant.
No. 88-1345.
United States Court of Appeals, Federal Circuit.
March 8, 1989.
Before FRIEDMAN, Circuit Judge, NICHOLS, Senior Circuit Judge, and NIES, Circuit Judge.
FRIEDMAN, Circuit Judge.
DECISION
1
The declaratory judgment of the United States District Court for the Northern District of Mississippi that U.S. Design Patent No. 274,485 ('485 patent) is unenforceable because the patentee had engaged in inequitable conduct during the prosecution of the patent application is vacated, and the case is remanded to the district court for further proceedings in accordance with our opinion.
OPINION
2
After a lengthy bench trial, the district court held that the appellant, Broyhill Furniture Industries, Inc. (Broyhill), had engaged in inequitable conduct by failing to disclose to the Patent and Trademark Office two items that the court described as "highly material prior art." BenchCraft, Inc. v. Broyhill Furniture Indus., Inc., 681 F.Supp. 1190, 1219, 7 USPQ2d 1257, 1279 (N.D.Miss.1988). These items were (1) photographs that Gunter, the president of Broyhill, had taken of a sofa he saw at a London furniture store, and upon which the designer relied in making the design claimed in the '485 patent, and (2) a sofa made by a competitor of Broyhill, the BenchCraft 4540. The court further ruled that Broyhill's "failure to disclose this prior art either to Fitzpatrick [the patent attorney who prosecuted the application for the '485 patent] or to the PTO leads the court to conclude that the plaintiffs have proven an intent to mislead the PTO." Id. at 1210, 7 USPQ2d at 1272.
3
It is unclear whether the district court's finding of intent was (a) an inference the court drew from its conclusion that Broyhill and its personnel were grossly negligent in failing to disclose the Gunter photographs and the BenchCraft 4540 sofa or, (b) an independent conclusion based upon the evidence of intent in the record.
4
The court twice stated that "gross negligence is sufficient" to show intent. Id. at 1209, 1219, 7 USPQ2d at 1271, 1280. The court further stated that "Broyhill's conduct exhibits gross negligence, if not a deliberate course of conduct indicating an intent to mislead the PTO or to conceal relevant information," and that Fitzpatrick was "grossly negligent in failing to discuss with [Broyhill personnel] their knowledge of relevant prior art." Id. at 1209, 7 USPQ2d at 1272.
5
In a recent decision, rendered after the district court's decision in this case, this court held in banc that
6
a finding that particular conduct amounts to "gross negligence" does not of itself justify an inference of intent to deceive; the involved conduct, viewed in light of all the evidence, including evidence indicative of good faith, must indicate sufficient culpability to require a finding of intent to deceive.
7
Kingsdown Medical Consultants, Ltd. v. Hollister, Inc., 863 F.2d 867, 876, 9 USPQ2d 1384, 1392 (Fed.Cir.1988).
8
In light of Kingsdown, the judgment of the district court must be vacated and the case remanded for the court to reconsider its finding of intent.
COSTS
9
No costs. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/712160/ | 75 F.3d 592
106 Ed. Law Rep. 1043
Todd WALKER, Plaintiff-Appellant,v.Arthur ELBERT, Jerry Farley, Don Flegal, Earl Whitman, RoyceClark, Caralyn Bullock, and Pat McAlister,Defendants-Appellees.
No. 94-6395.
United States Court of Appeals,Tenth Circuit.
Jan. 31, 1996.
1
Steven Langer, Norman, Oklahoma, for Plaintiff-Appellant Todd Walker.
2
Fred A. Gipson, (Lisa Millington, and Jill Bush Raines with him on the brief), Norman, Oklahoma, for Defendants-Appellees.
3
Before KELLY, Circuit Judge, SETH, Senior Circuit Judge, and BROWN, Senior District Judge.*
4
WESLEY E. BROWN, Senior District Judge.
5
When plaintiff-appellant was terminated from his job as a delivery person in the purchasing department of the University of Oklahoma, he filed this action claiming, among other things, that the defendants, individually and/or as officials of the university, deprived him of property without due process of law in violation of the Fourteenth Amendment, and that a dress code adopted by the university violated his First Amendment right to free speech. In addition to these claims under 42 U.S.C. § 1983, plaintiff also alleged state law claims for wrongful discharge.1
6
The district court granted summary judgment in favor of defendants on all claims except for plaintiff's First Amendment "dress code" allegation, which was submitted to a jury. Although the university "dress code" violated plaintiff's First Amendment rights, the jury found that defendant Clark was entitled to qualified immunity.
7
In this appeal, plaintiff contends that the district court abused its discretion in denying his motion to amend the complaint, that the court improperly submitted the issue of qualified immunity to the jury, and erred in granting summary judgment to defendants on all other claims.
8
The district court granted summary judgment on the majority of plaintiff's claims upon these undisputed facts:
9
Plaintiff Todd Walker was employed by the University of Oklahoma as a delivery person in the storeroom of the purchasing department from September 4, 1984 to April 1, 1992. He had no written contract of employment.
10
The board of regents of the university is an "at will" employer. The university handbook contains a disclaimer stating that nothing therein should be interpreted to create any express or implied contract right.
11
The handbook sets out a "Positive Discipline Procedure" involving three steps of discipline: first, an oral reminder from a supervisor; second, a written reminder if there has been no correction; and third, a disciplinary leave with or without pay for up to five days. Discharge is not considered a final step in the procedure, since that step is taken only when the foregoing steps have been used and failed. Discharge is also appropriate if the employee commits a major offense which involves willful misconduct, dishonesty, or threatens the safety of the university.
12
The university also has a grievance process available to employees who seek to resolve employment conflicts. This process includes procedural safeguards such as a right to assistance, to call witnesses, and to an impartial hearing before a grievance committee. The committee hears the matter and makes a non-binding recommendation which is then reviewed by a vice president or provost and finally by the president of the university.
13
Plaintiff's termination was preceded by several attempts to discipline him. He was given an oral reminder by his supervisor, defendant Caralyn Bullock, on April 10, 1991, regarding his refusal to follow instructions and his insubordinate work attitude. A written reminder was sent on June 7, 1991, concerning plaintiff's continuing insubordination, and a meeting was held on June 13, 1991, regarding plaintiff's poor attitude while working under Bullock's supervision. Present at this meeting were plaintiff, Bullock and Bullock's supervisors, defendants Clark and Whitman. Plaintiff was placed on a one-day decision making leave on June 14, 1991; and, upon his return to work, he agreed that in the future there would be no absences from work without authorization; that he would give full attention to the supervisor providing instructions or seeking information; that he would follow all instructions; and that he would refrain from demonstrating disdain and insubordination toward supervision.
14
Plaintiff filed grievances over his treatment and working conditions numerous times over the course of a year--on May 22, May 31, June 10, June 28, 1991, and on February 11 and February 21, 1992.
15
The defendant Clark instituted a dress code for all personnel in the operations department on August 13, 1991. Employees were not permitted to display slogans, political signs or statements, or obscene statements or pictures on their clothing.2
16
As a result of unsatisfactory performance reviews and several informal discussions with his supervisors, plaintiff was finally terminated on April 1, 1992. Plaintiff was not terminated because of any violation of the university dress code. Plaintiff instituted a grievance procedure on April 10, 1992, at which time he was suspended without pay. On June 10, 1992, a grievance committee heard the grievance; and, on June 17, the committee recommended that plaintiff be reinstated with full back pay and that Bullock and plaintiff undertake counseling sessions to improve their working relationship.
17
Pursuant to grievance procedures, the recommendation was reviewed by defendant Elbert, then vice president of administrative affairs. Elbert requested additional information from defendant Don Flegal, director of personnel, who recommended that Elbert not follow the committee recommendation. On September 3, 1992, Elbert notified plaintiff that he was upholding the original termination decision, and Elbert's action was affirmed by the president of the university, Richard Van Horn, on September 21, 1992.
18
Although plaintiff had been injured on the job in October, 1988, he did not file a claim for benefits under worker's compensation until after his termination.
19
After plaintiff was terminated, defendant Bullock completed a personnel form indicating that he would not be eligible for rehire; this form, approved by Whitman and Elbert, was filed in plaintiff's personnel folder.
20
In his complaint, plaintiff alleged that defendants were responsible for his termination in violation of a property right to job security; that defendants, through the dress code, deprived him of his right to freedom of expression; and that they deprived him of a liberty interest in obtaining other employment by stigmatizing and blacklisting him from further employment opportunities. In addition, plaintiff claimed that defendants breached an implied duty to provide a fair hearing and review and that he was terminated in retaliation for filing a worker's compensation claim.
21
After our review of the record, we conclude that the trial court properly sustained defendants' motions for summary judgment upon all but one of plaintiff's claims and properly entered judgment for defendant Clark on the dress code issue.3
22
In the first instance, there was an absence of evidence that plaintiff possessed any property interest in his continued employment by the university. As noted by the trial court, a tenured public employee may acquire a property interest in continued employment, but this interest must be created by an independent source such as state law, whereby the public employee has a " 'legitimate claim of entitlement' to--not merely a 'unilateral expectation' of--continued employment." Carnes v. Parker, 922 F.2d 1506, 1510 (10th Cir.1991), applying Oklahoma law. In Carnes, the plaintiff, who was employed by a public hospital as a "permanent" radiology technician, had a dispute with her supervisor and was terminated for insubordination and failure to appear for work. The hospital personnel manual established formal three-level post-termination grievance procedures to implement a "Fair Treatment Policy" designed to resolve employment problems.
23
In ruling that Carnes was only entitled to the grievance procedures contained in the employees' handbook, and was not entitled to continued employment, this circuit reviewed the applicable Oklahoma employment law in this manner:
24
Carnes' federal constitutional claim depends on her having a property right in continued employment. Board of Regents v. Roth, 408 U.S. 564, 576-78, 92 S.Ct. 2701, 2708-10, 33 L.Ed.2d 548 (1972). If she in fact has such a right, then the government cannot deprive her of continued employment without procedural due process....
25
Property interests are not created by the due process clause of the Constitution ... Rather, they are created by independent sources such as a state or federal statute, a municipal charter or ordinance, or an implied or express contract....
26
* * * * * *
27
A public employee has a property interest in continued employment if under state law that employee has a "legitimate claim of entitlement" to--not merely a "unilateral expectation" of--continued employment ... To ascertain whether Carnes is entitled to procedural due process we must determine whether the Oklahoma Supreme Court would find Carnes could rely on the policies and procedures contained in her employer's personnel manual to create a legitimate claim of entitlement to continued employment.
28
Initially we note Oklahoma recognizes the employment at-will doctrine. In the absence of an implied or express agreement between the employer and its employees, the employer may terminate an employee at any time with or without cause ... The Oklahoma Supreme Court has refused to recognize an implied covenant of good faith and fair dealing in employment at-will contracts.... (922 F.2d at 1509-1510)
29
In the Carnes case, this court, in recognizing that the language of an employer's personnel manual may alter the employment at-will relationship, found that Carnes was entitled to the grievance procedures outlined in the personnel manual as a part of her employment contract although the procedural protections themselves were not sufficient to create a property interest in continued employment. In so ruling, this court noted that even though the handbook provided some specific grounds for termination (insubordination, refusing to obey orders, etc.), this factor did not establish any contractual right promising continued employment. 922 F.2d at 1511.
30
While Walker contends that defendants assured him orally that he would not be terminated except for "cause," we note the express disclaimer language contained in the handbook as clear evidence that he could not possibly have possessed a contract right to continued employment by the university. See Johnson v. Nasca, 802 P.2d 1294 (Okla.App.1990). In addition, the trial court found that there was no dispute that insubordination, the stated reason for plaintiff's termination, constituted "cause" although Walker continued to assert that he was not insubordinate. In any event, there was no need to resolve any presumed factual dispute over "cause" since plaintiff clearly received complete procedural due process in accordance with the employment manual.
31
The evidence, as recited by the trial court and fully supported by the record, sets out the events leading to plaintiff's termination: (Vol. III Record at p. 603)
32
In plaintiff's case, before termination, plaintiff received numerous warnings from his immediate supervisor, defendant Bullock, both orally and in writing. Several meetings with his supervisors were held to discuss the conditions of his continued employment at which Walker had the opportunity to present his perspective and suggest potential courses of action. He was placed on decision-making leave for one day and agreed to meet certain employment standards. Nothing in this process suggests that plaintiff received anything less than what he was entitled to under the Fourteenth Amendment.
33
Post-termination, plaintiff availed himself of the grievance procedures. He received a full adversarial hearing at which he had the right to assistance and to examine witnesses. Although ultimately the grievance was not resolved to plaintiff's satisfaction, again nothing presented to the Court at this time suggests that there was a constitutional infirmity in the process as provided by the University. As the Tenth Circuit observed regarding a similar due process claim in Carnes, plaintiff received "all the process to which (she) was entitled ... plus much more." 922 F.2d at 1512 (emphasis in original).
34
Under the law, due process requires only that the university provide an adequate opportunity to challenge the deprivation of any protected interest Walker might have had in his employment. See Seibert v. U. of Okl. Health Sciences Center, 867 F.2d 591, 598 (10th Cir.1989), approving the university's disciplinary procedures. Under the undisputed facts set out above, the trial court properly found that defendants were entitled to summary judgment upon plaintiff's claim that he had been denied procedural due process under the Fourteenth Amendment.
35
Plaintiff's third cause of action alleged that he was deprived of a Fourteenth Amendment liberty interest in obtaining future employment by defendants Elbert, Whitman, Bullock, Flegal and McAlister in that they, by checking "no rehire" on his termination report, "blackballed" his future opportunities for employment. In order to prevail on this claim, plaintiff was required to prove that there was a publication of a defamatory statement which would tend to jeopardize employment opportunities. Charges of insubordination or poor work habits are not considered to be stigmatizing. See Hicks v. City of Watonga, Okl., 942 F.2d 737 (10th Cir.1991). In Hicks, a police officer was terminated because he refused to take a polygraph exam and was therefore found to be insubordinate. In finding that defendants were entitled to summary judgment on a liberty interest claim, this circuit ruled that:
36
In order to state a constitutional claim, the charges must implicate "dishonesty or immorality" in order to deprive an employee of a liberty interest in his good name and reputation. See Melton v. City of Oklahoma City, 928 F.2d 920, 927 (10th Cir.1991). This court has held that charges implicating only insubordination or poor work habits are not stigmatizing, and therefore do not violate a liberty interest. See Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988) (charges of neglect of duties and insubordination not stigmatizing); Sipes v. United States, 744 F.2d 1418, 1422 (10th Cir.1984) (charge of lack of reliability and engaging in "horseplay" not stigmatizing). Thus, the defendants are entitled to summary judgment on the liberty interest claim. (942 F.2d at 746)
37
Here, the trial court correctly found that plaintiff failed to present evidence that stigmatizing statements were made and published, and that such statements caused a loss of employment opportunities. His speculative beliefs to the contrary are insufficient to create an issue of fact. Lane v. Town of Dover, Okl., 761 F.Supp. 768, 772 (W.D.Okl.1991), affirmed, 951 F.2d 291 (10th Cir.1991). The trial court did not err in granting summary judgment on the third count of plaintiff's complaint.
38
Summary judgment was granted against plaintiff on the fourth count of his complaint which alleged that Flegal and Elbert failed to act impartially in reviewing plaintiff's grievance. As to the claims in this count, plaintiff alleged that Elbert failed to keep to the 15-day time line prescribed in the employment manual, and that he "signed off" on the termination papers and asked for additional information from Flegal regarding plaintiff's case. Again, as noted by the trial court, plaintiff makes no claim that he was harmed in any way by Elbert's delay in reviewing the recommendation, and Elbert was entitled to seek whatever additional information was required in order to make a fair decision.
39
There was no evidence that Elbert failed to act impartially by terminating plaintiff and then by reviewing plaintiff's grievance following that termination. In the first instance, Elbert did not fire Walker--he only approved the decision of plaintiff's immediate supervisor to do so. As a vice president of the university, Elbert approved the decision of the supervisor according to university procedures. Thereafter, the grievance procedures of the university authorized Elbert to review plaintiff's case and send it on to the president of the university for further evaluation.
40
Likewise, summary judgment was properly granted to defendant Elbert on plaintiff's claim of denial of due process. Again, there was no dispute as to any material fact necessary to a decision on this issue. As previously noted, the trial court properly found that plaintiff had no property interest in continued employment with the university by reason of oral promises or formal contract. A mere subjective expectancy of continued employment is not enough. See Perry v. Sindermann, 408 U.S. 593, 601-603, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570, 580-581 (1972). The grievance procedures themselves created no affirmative duty to plaintiff on the part of any reviewer to uphold the grievance committee's recommendation. Likewise, the university procedures do not state that Elbert was ineligible to review the grievance simply because of his action in approving Walker's termination in the first instance. The trial court noted that "the procedure provided for review by the University president as a final check against any potential arbitrary action by the vice-president--a step that occurred in this case."
41
As to the First Amendment claim, plaintiff does not allege that he was discharged for any violation of the university dress code. In ruling on the motion for summary judgment, the trial court found that the dress code did violate First Amendment rights, and that Clark "is not entitled to qualified immunity and summary judgment is inappropriate at this time because material facts are in dispute." The dress code claim and the issue of qualified immunity were presented to the jury by a special question on the verdict form in the following manner:
42
As of August 1991, clearly established law precluded the publication of a dress code that absolutely prohibited employees like Mr. Walker from wearing slogans at work. Should an employee in Mr. Clark's position reasonably have been aware of this law in August 1991?
43
The jury answered "No" to this question. Appellant claims that the district court erred in referring to the jury the issue of reasonableness as it related to qualified immunity, citing Harlow v. Fitzgerald 457 U.S. 800, 817-820, 102 S.Ct. 2727, 2737-2739, 73 L.Ed.2d 396, 410-411 (1982).
44
Here the trial court, in ruling on the motion for summary judgment, determined that applicable law had been clearly defined at the time in issue. That ruling only pertained to the question of whether or not defendant would clearly be entitled to judgment as a matter of law. The trial court later clarified the pretrial ruling in this manner:
45
What was meant there, and what I should have said was: "That the Court finds that Clark is not now entitled to qualified immunity but there are questions of fact that survive summary judgment." And that's a question that we'll hash out at trial, since all I was doing in the order was deciding the summary judgment disposition. (Emphasis added) (Exhibits to Appellant Brief, p. 778)
46
In the first instance, we note that the university defendants have not cross-appealed the decision of the district court on the dress code itself, and we express no opinion on that ruling. While we do recognize that the ultimate question of a defendant's good faith immunity is frequently determined as a matter of law, a defendant may rely on special circumstances to raise an issue of fact to be determined by a jury. See Cannon v. City and County of Denver, 998 F.2d 867, 876 (10th Cir.1993); and Lutz v. Weld County School Dist. No. 6, 784 F.2d 340 (10th Cir.1986). In Cannon, this court held that police officers, who allegedly relied upon unofficial statements given by a judge, were not entitled to summary judgment as a matter of law on their defense of "exceptional circumstances" entitling them to qualified immunity, since that issue raised questions of fact. In Lutz, which involved a claim of employment discrimination against a handicapped person, a jury returned a verdict in favor of all of the defendants, and plaintiff claimed that the court had erred in its instruction to the jury on qualified immunity. On appeal, this court found that defendants had failed to allege special circumstances which would raise a factual issue to be submitted to a jury:
47
Defendants were ... entitled to an instruction on their qualified immunity defense only by raising a fact issue as to whether there were exceptional circumstances such that a reasonable person in their positions would not have known of the relevant legal standard. (784 F.2d at 343).
48
While it was noted that the issue of qualified immunity had been improperly submitted to the jury, because of the absence of factual issues, the court further held that considering the instructions as a whole there was no reversible error.4
49
During trial in the case before us, the defendant Clark presented evidence of circumstances which would entitle the jury to find that a reasonable person in his position would not have known of the relevant legal standards.5 Whether defendant Clark was entitled to immunity as a matter of law, or whether he was entitled to immunity under a finding of fact by the jury, we find there was no error on the issue of the immunity defense.
50
Finally, plaintiff contends that the trial court erred in denying his pretrial motion to amend his complaint.
51
On July 19, 1994, approximately two months before trial, plaintiff filed a motion to file a second-amended complaint containing seven claims, all but two of which were included in his first-amended complaint. The new claims were based on evidence which was allegedly discovered during depositions in May and June which would tend to establish that plaintiff's employment was terminated in part because of testimony he gave before a grievance committee, hearing a grievance filed by a co-worker Francis Whitlock. Based upon this evidence, plaintiff sought to add a claim for violation of his right of free speech and a state tort claim for wrongful discharge in violation of public policy.
52
A motion to amend is within the trial court's discretion and need not be granted if the proposed claims would not withstand a motion for judgment. Castleglen Inc., v. Resolution Trust Corp., 984 F.2d 1571, 1584-1585 (10th Cir.1993); Schepp v. Fremont County, Wyo., 900 F.2d 1448, 1451 (10th Cir.1990).
53
The district court denied the motion to amend as being out of time and, in addition, correctly found that the new claims were "tenuous at best." It should be noted that the grievance of Francis Whitlock was heard by a grievance committee on October 16, 1991, after disciplinary procedures were instituted against plaintiff (Vol. II Record, 585, Exh. D). In addition, it is undisputed that neither Elbert nor Whitman initiated the process which led to plaintiff's termination. The record establishes that plaintiff had been counseled, cautioned, and disciplined many times before the Whitlock grievance hearing; and his unacceptable and insubordinate behavior continued well into 1992, just before his termination.6 After plaintiff had been placed on the one-day decision making leave on June 14, 1991, and had agreed to follow the rules in the future, he took unscheduled absences from work on July 24, July 15, and August 27, and was counseled on his failure to follow instructions and attitude on August 28. These infractions resulted in two meetings on September 13, 1991, between plaintiff and his superiors, including defendant Elbert, the vice president of administrative affairs for the university. The first meeting between Elbert, plaintiff, and defendant Flegal, director of personnel services, resulted from Elbert's knowledge that plaintiff's supervisors had recommended that he be terminated. At this first meeting, Elbert listened to plaintiff's view of the circumstances and received assurances from him that he would change his attitude and behavior. After this first meeting, Elbert met with plaintiff's supervisor "and obtained another chance for Walker." At this time Elbert advised plaintiff "that he was on his last chance and that unless his attitude and behavior changed his employment would be terminated." (See also Exhs. E-1, E-2, Answer Brief)
54
Following the above-described meetings with Elbert, the record discloses that among other incidents, plaintiff had two further unscheduled absences (in October and December), and on February 5, 1992, he was cited for "Insubordination, disrespect toward supervisor, inattention." (Vol. III Record, p. 773)
55
Under all of these circumstances, the trial court's denial of leave to amend was not an abuse of discretion.
56
There being no error, the judgment of the district court is AFFIRMED.
*
The Honorable Wesley E. Brown, Senior United States District Judge for the District of Kansas, sitting by designation
1
Defendant Elbert was the university vice president for administrative affairs, including the department of purchasing. Defendant Farley was Elbert's successor in office. Defendant Whitman was the university director of purchasing, including material operations. Defendant Clark was the university manager of material operations, who instituted a dress code for all personnel in the operations department. Defendant Caralyn Bullock was plaintiff's immediate supervisor in the storeroom. Plaintiff also claimed that defendants Flegal, the university personnel director, and McAlister, a personnel technician, conspired with other defendants to "blackball" his future employment opportunities
2
The pertinent provisions of the dress code were as follows:
2
Apparel will be neat, clean and well mended, will display no slogans, political signs or statements, obscenity, or obscene images offensive to one's feelings or to public prevailing notions of modesty or decency
3
Plaintiff conceded that he did not have the evidence to proceed with his state public policy claim, his stigmatization claim against defendants Whitman, Clark and Bullock, and his worker's compensation discharge claim against defendant Elbert
4
"Since the statute was laid out in plain terms for the jury, we do not find that there was improper submission to the jurors of a question of law, or of the state of the law. The real issue was whether the conduct of the defendants violated the established right, defined in the instructions, and there was no reversible error in the charge in this respect." 784 F.2d at 344
5
At trial Clark testified that he had a military background and occupied only a mid-level position as senior buyer and material operations manager, where he oversaw the storeroom and delivery services, directly supervising only one person. As such, he testified that "I don't write policy, I don't establish policy," and he explained that he believed he was following university policies regarding political activities on campus with a concern that employees present a neat and clean appearance to the public
Clark testified that he was completely unaware that the dress code was unacceptable, that no one complained about it, and that plaintiff did not file any grievance concerning the policy. Clark further testified that he first learned that the dress code was "not legal" at the time the trial court issued its ruling on the motion for summary judgment shortly before trial. The dress code was then amended.
6
Plaintiff's Exhibit 16, Vol. III Record, p. 773 lists 36 occasions, from November, 1990 through March 18, 1992 relating to plaintiff's work habits, 15 of which related to insubordination, improper attitude and/or failure to follow instructions | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/712168/ | 75 F.3d 657
James B. KING, Director, Office of Personnel Management, Petitioner,v.Raymond ALSTON, Respondent,andMerit Systems Protection Board, Respondent.
No. 95-3356.
United States Court of Appeals,Federal Circuit.
Feb. 1, 1996.
Hillary A. Stern, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., argued, for petitioner. With her on the brief, were Frank W. Hunger, Assistant Attorney General and David M. Cohen, Director. Of counsel were Lorraine Lewis, General Counsel and James E. Hicks, Office of the General Counsel, Office of Personnel Management, of Washington, D.C.
Calvin M. Morrow, Office of the General Counsel, Merit Systems Protection Board, Washington, D.C., argued, for respondent. With him on the brief, were Mary L. Jennings, Acting General Counsel and David C. Kane, Assistant General Counsel.
Before PLAGER, LOURIE, and CLEVENGER, Circuit Judges.
LOURIE, Circuit Judge.
1
Pursuant to 5 U.S.C. § 7703(d), the Director of the Office of Personnel Management (OPM) petitions for review of the final decision of the Merit Systems Protection Board, Docket No. AT0752900238-R-2, 62 M.S.P.R. 19, reversing the Department of the Navy's decision to place Raymond Alston on enforced leave after suspending his access to classified information. Alston v. Department of Navy, 62 M.S.P.R. 19 (1994). Because the board erred in determining that the agency denied Alston due process when it placed him on enforced leave, we reverse.
BACKGROUND
2
Raymond Alston worked as an Instrument Mechanic for the Department of the Navy ("the agency") at the Charleston Naval Shipyard. His position required him to work in restricted areas of the shipyard and to have access to classified documents. Accordingly, the agency required him to have a security clearance.
3
The agency has a two-part personnel security policy to maintain control over access to classified information. First, employees must have personnel security clearances, which are granted by a Central Adjudication Facility (CAF) after formal, often lengthy, background investigations. 32 C.F.R. § 154.41 (1995). Second, to manage more immediate needs for security, the agency determines which of those personnel holding security clearances needs to have access to classified information. Id. § 154.49. If the agency doubts an employee's ability to properly protect classified information, it may suspend that person's access. Id. § 154.55(c). In such a case, the CAF performs an independent determination as to whether to revoke that employee's clearance. Id. § 154.41.
4
On July 5, 1989, the agency temporarily suspended Alston's access to classified information and to restricted areas.1 In a letter to Alston, the agency informed him that his access was temporarily suspended because "[he] may suffer from a medical condition which requires further investigation and evaluation." The agency did not identify any specific medical condition. Subsequently, because Alston no longer had access to his work site, the agency placed him on administrative leave.
5
On November 1, 1989, the agency proposed to place Alston on enforced leave, presumably without pay, pursuant to 5 U.S.C. §§ 7511-14 pending completion of an investigation and adjudication as to whether his security clearance should be revoked.2 In its notice of the proposed action, the agency stated as follows:
6
1. This is a notice of proposed action to place you on enforced leave for such time as you are eligible for access to classified information....
7
2. The specific circumstances supporting the proposed enforced leave are:
8
....
9
b. The position you currently hold, Instrument Mechanic, WG-11, requires that you work and perform in nuclear controlled areas and have access to classified documents. Further, your position requires that you hold a security clearance with access to the controlled industrial area and other restricted areas of the shipyard.
10
c. On 5 July 1989, you were notified by the Administrative Officer that your access to classified information, the Controlled Industrial Area, as well as other restricted areas of the shipyard was being temporarily suspended pending further investigation and adjudication insofar as your security clearance was concerned.
11
....
12
3. Eligibility for a security clearance is a condition of employment in your position at this Shipyard. Your services cannot be fully utilized without a clearance. You are not currently eligible to perform the duties for which you were hired due to the status of your security clearance. An effort has been made to locate a non-critical sensitive position in the Production Department which you could perform without a security clearance, however, none was found.
13
4. You are advised of your right to reply to this notice both orally and/or in writing, to submit affidavits and other documentary evidence in support of your reply, including medical documentation if you wish to have any medical condition considered which may have contributed to the reasons for this proposed action....
14
In response, Alston's attorney submitted medical documentation to the agency and met with them to discuss the proposed action. During this meeting, Alston's attorney discussed the possibility of placing Alston on disability or worker's compensation. Despite these discussions, the agency placed Alston on enforced leave on January 18, 1990 until such time as he became eligible for access to classified information. Alston appealed the agency decision to the board.3
15
In an initial decision, the administrative judge (AJ) reversed the agency action. The AJ held that the agency, when it placed Alston on enforced leave, did not act according to its own regulations. In particular, the AJ held that the agency failed to show that the placement of Alston on enforced leave promoted the efficiency of the service. The AJ further held that the agency failed to demonstrate that a lesser penalty could not have been imposed. The agency petitioned the board for review and the board affirmed the result of the AJ's decision, but used different reasoning. In its decision, the board held that the agency denied Alston his due process rights when it failed to provide him with an opportunity to reply to its notice concerning the suspension of his security clearance. Alston v. Department of Navy, 48 M.S.P.R. 694 (1991).
16
OPM petitioned the board for reconsideration. In a split decision on June 22, 1993, the board granted OPM's petition and reversed its previous decision. Alston v. Department of Navy, 58 M.S.P.R. 158 (1993). Relying on Jones v. Department of Navy, 978 F.2d 1223 (Fed.Cir.1992), the board held that constitutional due process rights do not attach to the suspension of an employee's access to classified information. Thus, the board found that Alston was not entitled to notice of the reasons for the agency's access determination prior to being placed on enforced leave. Accordingly, the board affirmed the agency's decision to place Alston on enforced leave pending completion of its investigation.
17
After a change in the board's composition, the board reopened and reconsidered its June 22, 1993 decision. See 5 U.S.C. § 7701(e)(1)(B) (1994) (agency decision final unless the board reopens and reconsiders a case on its own motion). In another split decision, the board reversed its June 22, 1993 decision. Alston v. Department of Navy, 62 M.S.P.R. 19 (1994). The board held that Alston was denied meaningful due process under the Constitution, as well as the procedural protections to which he was entitled pursuant to 5 U.S.C. § 7513(b). The board based its decision on the agency's failure to provide adequate notice of the reasons for the suspension such that Alston had a meaningful opportunity to respond to the agency's action placing Alston on enforced leave. OPM now appeals.4 See 5 U.S.C. § 7703(d) (1994) ("The Director of the Office of Personnel Management may obtain review of any final order or decision of the Board ... if the Director determines, in his discretion, that the Board erred interpreting a civil service law, rule or regulation affecting personnel management....").
DISCUSSION
18
Our review of board decisions is limited by statute. We may set aside a board's decision only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1994).
19
OPM argues that the board erred when it reviewed the adequacy of the Navy's notice concerning his suspended access, asserting that pursuant to Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), the board has no authority to review such suspensions. Moreover, OPM asserts that an individual has no property or liberty interest in access to classified information. Thus, OPM argues that before placing Alston on enforced leave, the agency was merely required to inform him that his placement on enforced leave was based on the agency's decision to suspend his access to classified information. Because the agency informed him that it was a "medical condition" that required suspension of his access, OPM argues that Alston was accorded all the procedural protection to which he was entitled.
20
The board counters that it did not err because 5 U.S.C. § 7513(b) (1994) entitles an employee to advance notice of the specific reasons for an adverse action. The board does not dispute that it lacks authority to review suspensions of access to classified information. Nor does it disagree that an employee does not have a property or liberty interest in access to classified information. Instead, the board argues that notice of the reasons for an agency's decision to suspend access to classified information is required in order to provide an employee with a meaningful opportunity to be heard before his placement on enforced leave. Although we agree with the board that the agency must provide some indication of the reasons for an agency's decision to suspend access to classified information before placing an employee on enforced leave, we reverse the board's decision because in this case Alston was provided with all that he was entitled to under section 7513.
21
Although it is clear that no one has a "right" to a security clearance or access to classified information, see Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), an employee, as defined by 5 U.S.C. § 7501, has a property right in his continued employment. See 5 U.S.C. § 7513(a) (1994) (agency may take an action under §§ 7511-14 against an employee only for such cause as will promote the efficiency of the service). See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985) (Ohio statute creates property interest in continued employment). An employee cannot be deprived of that interest without the procedural protections provided by 5 U.S.C. § 7513(b).5 Section 7513(b) provides as follows:
22
An employee against whom an action is proposed is entitled to--
23
(1) at least 30 days' advance written notice, unless there is reasonable cause to believe the employee has committed a crime for which a sentence of imprisonment may be imposed, stating the specific reasons for the proposed action;
24
(2) a reasonable time, but not less than 7 days, to answer orally and in writing and to furnish affidavits and other documentary evidence in support of the answer;
25
(3) be represented by an attorney or other representative; and
26
(4) a written decision and the specific reasons therefor at the earliest practicable date.
27
5 U.S.C. § 7513(b) (1994) (emphasis added).
28
The language of the statute is clear. Prior to an adverse action, the agency must provide an employee with "written notice ... stating the specific reasons for the proposed action." A notice of a proposed adverse action "is sufficient under [5 U.S.C. § 7513(b)(1) ] when it apprises the employee of the nature of the charges 'in sufficient detail to allow the employee to make an informed reply.' " Brook v. Corrado, 999 F.2d 523, 526 (Fed.Cir.1993) (quoting Brewer v. United States Postal Serv., 227 Ct.Cl. 276, 647 F.2d 1093, 1097 (1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982)).
29
Thus, section 7513(b) entitles an employee to notice of the reasons for the suspension of his access to classified information when that is the reason for placing the employee on enforced leave pending a decision on the employee's security clearance. Such notice provides the employee with an adequate opportunity to make a meaningful reply to the agency before being placed on enforced leave. Merely providing the employee with information that his access to classified information is being suspended, without more, does not provide the employee with sufficient information to make an informed reply to the agency before being placed on enforced leave.
30
Here, the agency provided Alston with sufficient notice to satisfy his statutory guarantees.6 The agency notified him in a notice of "Suspension of Access to Classified Information" that his access was being suspended because of a potential medical condition. Moreover, in the agency's "Notice of Proposed Enforced Leave," the agency informed Alston that he was being placed on enforced leave based on the suspension of his access to classified information and that he had the right to reply, including the opportunity to "submit medical documentation if you wish to have any medical condition considered." Such notice provided Alston with sufficient information to permit him to make an informed reply to the agency's proposed decision to place him on enforced leave, and Alston does not assert otherwise. Alston was thus able to focus his response on his medical status, rather than to have to guess whether the agency's action was based on disloyalty, unreliability, or other possible ground for suspension of access to classified information. In fact, Alston did meet with agency officials and offered medical evidence, which the agency considered, before it decided to place him on enforced leave. Section 7513(b) does not require more procedural protection than that which was provided by the agency.
31
OPM argues that the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), deprives this court and the board of the power to review the agency's actions in suspending Alston's access. In Egan, the Supreme Court was faced with the "narrow question ... whether the Merit Systems Protection Board (Board) has authority by statute to review the substance of an underlying decision to deny or revoke a security clearance in the course of reviewing an adverse action." Id. at 520, 108 S.Ct. at 820. The Court held that the board did not have such authority:
32
The [Civil Service Reform Act of 1978] by its terms does not confer broad authority on the Board to review a security-clearance determination.... [T]he Board does have jurisdiction to review "adverse actions," a term, however, limited to a removal, a suspension for more than 14 days, a reduction in grade or pay, and a furlough of 30 days or less. §§ 7513(d), 7512. A denial of a security clearance is not such an "adverse action," and by its own force is not subject to Board review.
33
Id. at 530, 108 S.Ct. at 825-26. We agree with OPM that Egan precludes our court and the board from reviewing the substance of an agency decision to suspend access or to revoke a security clearance. See Drumheller v. Department of Army, 49 F.3d 1566, 1571 (Fed.Cir.1995) ("To the extent Drumheller's arguments go to the sufficiency of the evidence supporting the Army's decision to revoke her security clearance, the clear answer is that the MSPB does not have jurisdiction to review the merits of such a decision.").
34
However, OPM misconstrues what is at issue in this case. Neither this court nor the board is reviewing the merits of the agency's decision to suspend Alston's access to classified information. Nor are we reviewing the procedures the agency followed in denying such access. We are only determining that the agency provided Alston with the procedural protection guaranteed by 5 U.S.C. § 7513(b) when it placed him on enforced leave. See Covington v. Department of Health and Human Servs., 750 F.2d 937, 944 (Fed.Cir.1984) ("Congress has charged the Board with the job of protecting the procedural rights of federal employees."). Egan does not foreclose board review of the procedures used by the agency in placing Alston on enforced leave. Although the action was based on the suspension of access to classified information, the agency was still required to comply with the statute, and in this case it did. See Egan, 484 U.S. at 530, 108 S.Ct. at 825-26 ("An employee who is removed for 'cause' under § 7513, when his required clearance is denied, is entitled to the several procedural protections specified in that statute.").
35
Nor is our decision inconsistent with our previous decision in Jones v. Department of Navy, 978 F.2d 1223 (Fed.Cir.1992). In Jones, we held that a federal employee has no liberty or property interest in access to classified information and therefore that no due process protection applies to a suspension of access to classified information. 978 F.2d at 1225. However, our decision in that case did not deal with the mandate of section 7513(b) when an agency places an employee on enforced leave. In Jones, the Navy informed two employees that they were being placed on enforced leave and their access to classified information suspended indefinitely pending an investigation into reports that the employees possessed and used cocaine. Id. The agency further provided the employees with an opportunity to reply. Moreover, the employees stipulated that the Navy provided them with the procedural rights required by law. Id. at 1224-25. Thus, the employees in Jones did not challenge and we did not address whether the employees were provided with the statutory procedures required by 5 U.S.C. § 7513(b).
CONCLUSION
36
Although the board may not review the substantive reasons for a suspension of access to classified information when an employee is placed on enforced leave, it still must ensure that the agency provides the statutory procedural protections guaranteed by 5 U.S.C. § 7513(b). In this case, the agency provided Alston with all the process required by law. Therefore, we hold that the board's decision to the contrary was in error.
37
REVERSED.
1
The procedures followed in suspending Alston's access, see 32 C.F.R. § 154.56, and the subsequent CAF evaluation concerning whether to revoke Alston's clearance are not at issue in this case. The only procedures at issue are those followed in placing Alston on enforced leave prior to the security clearance determination
2
The agency presumably could also have acted pursuant to 5 U.S.C. § 7532. Under this section, an agency may take immediate action to suspend an employee without pay if the agency considers the action necessary in the interest of national security. This section also permits an agency to remove a previously suspended employee, but only after the agency follows specific procedures prior to removal. See 5 U.S.C. § 7532(c) (1994) (providing an employee with notice, an opportunity to respond, a hearing, and a written decision by the head of the agency before removal)
3
The board has jurisdiction over cases in which an agency places an employee on indefinite enforced leave. Pittman v. Merit Sys. Protection Bd., 832 F.2d 598, 600 (Fed.Cir.1987) ("indefinite enforced leave is tantamount to depriving the worker of his job")
4
Alston was notified of the current appeal, but did not participate
5
Notwithstanding the board's reference to the Constitution, neither party challenges whether the procedures provided under 5 U.S.C. § 7513(b) are constitutionally adequate under the Due Process Clause of the Fifth Amendment. We therefore consider only the question of statutory compliance
6
Before the board, Alston did not raise any due process concerns. In fact, Alston stipulated that the agency complied with all applicable procedural requirements when it temporarily suspended him | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1333525/ | 241 S.E.2d 119 (1978)
35 N.C. App. 231
Lloyd HUDSPETH
v.
Robert S. BUNZEY and Elizabeth O. Bunzey.
No. 7726SC169.
Court of Appeals of North Carolina.
February 7, 1978.
Certiorari Denied and Appeal Dismissed April 4, 1978.
*121 William H. Booe, Charlotte, for plaintiff appellee.
Echols, Purser & Adams, P. A., by W. Thad Adams, III, Charlotte, for defendants appellants.
Certiorari Denied and Appeal Dismissed by Supreme Court April 4, 1978.
ARNOLD, Judge.
We first consider the appellee's argument that appellants' appeal from the denial of a motion to amend the pleadings is premature. Appellee correctly points out that the trial court's denial of appellants' motion to amend the pleadings is an interlocutory order. G.S. 7A-27(d) provides for appeals from interlocutory orders:
"From any interlocutory order or judgment of a superior court or district court in a civil action or proceeding which
(1) Affects a substantial right, or
(2) In effect determines the action and prevents a judgment from which appeal might be taken, or
(3) Discontinues the action, or
(4) Grants or refuses a new trial, appeal lies of right directly to the Court of Appeals."
See also G.S. 1-277.
In reviewing North Carolina cases dealing with appeals from interlocutory orders we find no case directly concerned with an appeal from a denial of a motion to amend the pleadings. Orders allowing amendments of pleadings are, as a rule, not appealable. See, e. g., Order of Masons v. Order of Masons, 225 N.C. 561, 35 S.E.2d 613 (1945). A case closer to the one before us, however, is Bank v. Easton, 3 N.C.App. 414, 165 S.E.2d 252 (1969), where this Court held that a trial court's striking of an entire further answer or defense was in substance a demurrer and immediately appealable.
By their motion to amend defendants are attempting to assert a second counterclaim which arises out of the same transaction and which is compulsory under G.S. 1A-1, Rule 13(a). Affirmative defenses must be specifically pleaded, G.S. 1A-1, Rule 8, and failure to assert a compulsory counterclaim will ordinarily bar future action on the claim. (See Comment, G.S. 1A-1, Rule 13.) We therefore conclude that the denial of a motion to amend the answer to allege a compulsory counterclaim affects a substantial right and is immediately appealable. Accordingly, we will review defendants' appeal from the trial court's denial of their motion to amend their answer to allege an affirmative defense and a compulsory counterclaim.
The question presented by this appeal is whether the trial court abused its discretion in denying defendants' motion to amend the pleadings. G.S. 1A-1, Rule 15(a) states:
"A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 30 days after it is served. Otherwise a party may amend his pleading only by leave *122 of court or by written consent of the adverse party; and leave shall be freely given when justice so requires . . ."
It is clear from the facts of the present case that defendants' amendment is possible only by leave of court. Our courts have consistently held that, in a motion to amend addressed to the sound discretion of the trial judge, the trial court has broad discretion in permitting or denying amendments. See, e. g., Markham v. Johnson, 15 N.C.App. 139, 189 S.E.2d 588, cert. denied, 281 N.C. 758, 191 S.E.2d 356 (1972).
While the order of the trial court is circuitously written we agree with plaintiff's argument that the court considered all attendant circumstances and concluded that justice did not require the amendment. The court found that plaintiff was in compliance with the licensing requirements of the statute; that the statutory requirements were available to both parties; and that defendants had waited too long to assert their defense and counterclaim. In view of the record in this case, which reflects that this action had been calendared for trial on previous occasions and that defendants waited sixteen months before attempting to amend their answer, we find no abuse of discretion.
The order denying defendants' motion to amend is
Affirmed.
PARKER and MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264978/ | 619 A.2d 64 (1993)
STERLING MIRROR OF MARYLAND, INC., Appellant,
v.
Daisy GORDON, Appellee.
No. 90-CV-431.
District of Columbia Court of Appeals.
Submitted March 2, 1992.
Decided January 15, 1993.
*65 Fred Arthur Thompson, II was on the brief, for appellant.
No brief was filed on behalf of appellee.
Before FERREN, WAGNER, and KING, Associate Judges.
WAGNER, Associate Judge:
Appellant, Sterling Mirror of Maryland, Inc. (Sterling), appeals from a judgment awarding appellee, Daisy Gordon (appellee), $1,000 in damages on her counterclaim which alleged that Sterling harassed her by telephone while attempting to collect the balance due on Sterling's contract with her husband, John Gordon, for the installation of mirrors at the Gordons' home. Appellant argues that the trial court erred in finding it liable because the facts do not support a claim under the Federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692a-1692k (1982) (Debt Collection Act), the D.C. Consumer Credit Protection Act, D.C.Code §§ 28-3801 to -3819 (1991) (Consumer Act), nor any common law cause of action. We agree and reverse.
I.
Appellant filed a complaint for damages for breach of contract against appellee and her husband, John Gordon, in connection with the installation of mirrors in the Gordons' home. Only Mr. Gordon signed the two contracts which precipitated the dispute, although the second contract reflected the sale of the mirrors to John and Daisy Gordon. The first contract, dated December 6, 1988, was for $4,207.50, and the second, dated January 20, 1989, was for $1,325. Appellee's telephone number was listed as the contact person on the first contract. The trial court found, and it is not challenged on appeal, that the second contract replaced the first.
A dispute arose between the parties about a mirror chipped during installation, and Mr. Gordon refused to pay the balance *66 due under the contract. In an attempt to collect the balance, Sterling's employee made numerous calls to appellee's place of employment. Sterling then filed suit for breach of contract against appellee and Mr. Gordon. Mrs. Gordon counterclaimed for damages for harassment based on telephone efforts by Sterling to collect the outstanding balance. The trial court entered judgment for Sterling and against John Gordon in the amount of $635 for breach of contract and dismissed Sterling's complaint against Daisy Gordon. The court awarded Daisy Gordon $1,000 in damages on her counterclaim and found against Mr. Gordon on his counterclaim. Sterling appeals from the judgment in favor of Mrs. Gordon on the counterclaim.
II.
Appellant argues that the trial court erred in imposing liability and awarding damages without statutory authority or a basis in common law. Specifically, Sterling contends that neither the Debt Collection Act nor the Consumer Act applies in this case, and there is no other basis for recovery. We agree.
The Debt Collection Act prohibits certain unfair debt collection practices by persons engaged in the debt collection industry. Crossley v. Lieberman, 868 F.2d 566, 570 (3rd Cir.1989).[1] It covers the activities of collection agents working on behalf of third parties, rather than those of creditors attempting to collect debts owed to them directly by debtors, as in the instant case. Id.; Kizer v. Finance America Credit Corp., 454 F. Supp. 937, 939 (N.D.Miss.1978) ("debt collectors" covered by Act are those who regularly collect debts for others and not creditors of consumers even though debt created between consumer and third person and subsequently assigned to creditor); Mendez v. Apple Bank For Sav., 143 Misc. 2d 915, 541 N.Y.S.2d 920, 923 (N.Y.City Civ.Ct.1989) (statute reflects legislature's belief that third party debt collectors are prime source of egregious collection practices). Appellant does not fall within the categories of debt collectors covered. The plain language of the statute does not include actions of a creditor taken in an effort to collect its own debts directly from its debtors. Sterling is a creditor which falls within this exclusion.
Here, Sterling was attempting to collect a debt by telephone calls made by its employee to appellee, one of the recipients of the merchandise. An employee of a creditor seeking to recover a debt on the employer's behalf likewise is not within the coverage of the Act. 15 U.S.C. § 1692a(6)(A). Even though appellant called the wife of the actual debtor, the Debt Collection Act does not prohibit such actions insofar as creditors seeking to recover debts due to them as opposed to debts due to third party creditors. Thus, the trial court's decision to award $1,000 in civil damages cannot rest upon the provision of the Debt Collection Act which allows civil damages not to exceed $1,000 to an individual aggrieved by a debt collection *67 violation under the Act.[2]
Nor can support for the trial court's decision be found in the Consumer Act. That Act is limited by its terms to "actions to enforce rights arising from a consumer credit sale or a direct installment loan." D.C.Code § 28-3801 (1991). Neither a consumer credit sale[3] nor a direct installment loan[4] was involved. The basis of appellant's claim was a contract under the terms of which the purchaser paid a deposit and agreed to pay the balance upon delivery and installation of the merchandise.
Absent a statutory basis for the trial court's decision awarding damages to appellee, we review to determine whether recovery is based properly upon some common law theory of liability.[5] Appellee contended at trial that she was subjected to telephone harassment by Sterling, and the trial court agreed, as reflected in its finding, and awarded damages. Appellee's testimony reveals no actual damages. At best, appellee's claim is for mental disturbance caused by Sterling's calls. The only possible theory of recovery for mental distress associated with the calls, but one which cannot be made on the facts presented, is one for intentional infliction of emotional distress.[6] Liability for such an action is predicated upon conduct so outrageous and extreme as to exceed the bounds of decency and to be regarded as atrocious and intolerable in a civilized society. Bown v. Hamilton, 601 A.2d 1074, 1079 (D.C. 1992); Waldon v. Covington, 415 A.2d 1070, 1076 (D.C.1980). Liability will not be imposed for mere indignities or annoyances for this cause of action. Id. A prerequisite to recovery is an intent on the part of the alleged tortfeasor to cause a disturbance in another person's emotional tranquility so acute that harmful physical consequences might result. Id. at 1077. The requisite intent may be inferred from the outrageous character of the offensive actions or circumstances which impart to a reasonable person the likelihood that emotional or physical harm will result. See id. The facts of this case do not support such a claim.
Appellee testified that she received telephone calls from someone at Sterling who said that she owed them money and *68 that they had tried to reach her husband. Appellee also testified that her supervisor informed her that Sterling's representatives called and that she suspected she was moved to another work station because of the calls. However, appellee proved no actual damages, and she did not claim that she personally suffered emotional distress as a result of Sterling's actions. Neither Sterling's conduct as described by appellee in her testimony at trial nor its consequences to her as disclosed by the evidence rises to the level required to support a claim for intentional infliction of emotional distress.
We disagree with our dissenting colleague that the record is inadequate for review. On the contrary, appellant designated as the record on appeal, inter alia, a transcript of appellee's testimony, all trial exhibits, and a transcript of the trial court's findings of facts and conclusions of law.[7] Our rules and case law do not require an appellant to provide the entire trial transcript nor all pleadings. Rather, "[t]he normal practice is to obtain a verbatim transcript of the pertinent trial proceedings...." Cobb v. Standard Drug Co., Inc., 453 A.2d 110, 111 (D.C.1982). D.C.App.R. 10(c)-(f). The rules contain explicit provisions for allowing an appellant to designate only portions of the transcript. See D.C.App.R. 10(c). Here, the record reflects that appellant designated and requested all of appellee's testimony and we have no reason to believe that all of the testimony is not before us.[8]
Our dissenting colleague suggests incorrectly that we consider it to be appellee's burden to provide an adequate record. On the contrary, we recognize that it is appellant's burden to provide this court "with a record sufficient to show affirmatively that error occurred." Cobb, 453 A.2d at 111. However, we simply conclude that appellant met that burden. Here, appellant designated a record sufficient to show that appellee failed to prove a cognizable claim entitling her to recover damages based on appellant's alleged harassing telephone calls. Id. at 111. Appellee's testimony reveals that she was claiming damages for harassment.[9] The trial court's findings and conclusions also show that it ruled for appellee on the counterclaim based on appellant's "unjustifiable harassment" by telephone calls associated with its collection efforts.[10] Therefore, we have considered *69 whether there is any statutory support or common law theory of recovery based thereon.
While it is primarily appellant's burden to provide an adequate record, our appellate rules explicitly impose upon appellees the duty of designating additional portions of the transcript which they deem to be necessary. See D.C.App.R. 10(c)(4) and (5).[11] Our case law recognizes an appellee's duty to assure that information helpful to his or her cause is not omitted. If portions of the record helpful to appellee are missing, it is incumbent upon appellee to provide it or at least to protest that appellant has not met his obligations under D.C.App.R. 10(a)(1); Parker v. Stein, 557 A.2d 1319, 1323 (D.C.1989); see Dulles v. Dulles, 302 A.2d 59, 60 (D.C.1973) ("an appellee also has a duty to insure an adequate record so the judgment in the latter's favor may be upheld and may not abdicate that responsibility"). In this case, appellant served upon appellee the required notice of its statement of portions of the transcript which it intended to include in the record. See D.C.App.R. 10(c)(3). Appellee did not file and serve on appellant a designation of additional portions to be included as required by the rule. See D.C.App.R. 10(c)(4). Where an appellee fails to furnish other portions of the record which might be helpful to him or her, we decide the case only on the record before us. Parker, 557 A.2d at 1323. The record before the court supports the decision reached by the court here.
Nor can we agree with our dissenting colleague that we cannot determine from the record available whether the trial court's decision is supportable under a statute or any common law theory without a copy of appellee's counterclaim or other pleadings. We are not reviewing here a motion to dismiss or for summary judgment where an examination of the pleadings is essential. Rather, we have before us the trial testimony of the complainant and exhibits admitted into evidence from which it can be determined readily whether the elements of any cognizable cause of action have been made out or whether any damages recoverable by statute or under common law theories have been proven. Appellee must bear the consequences of a failure to designate any other portions of the transcript. See id.
For the foregoing reasons, we conclude that the trial court erred in granting judgment for appellee, Daisy Gordon, on her counterclaim. Accordingly, the judgment for appellee hereby is reversed, and the case is remanded for the entry of judgment for appellant, Sterling Mirror of Maryland, Inc., on appellee's counterclaim.
Reversed.
FERREN, Associate Judge, dissenting:
In my judgment, this appeal should fail for want of an adequate record on appeal. *70 In Cobb v. Standard Drug Co., Inc., 453 A.2d 110 (D.C.1982), we said:
A judgment of any trial court is presumed to be valid. A losing party who notes an appeal from such a judgment bears the burden of "convincing the appellate court that the trial court erred." In meeting that burden, it is appellant's duty to present this court with a record sufficient to show affirmatively that error occurred. The responsibility of perfecting the record remains with appellant and "cannot be shifted to either the trial court or this court."
Id. at 111 (citations omitted, emphasis added). Sterling Mirror did not meet the Cobb standard requiring appellant to provide a record that assuredly reflects at least a prima facie basis for reversal, because Sterling Mirror did not even provide the pleadings or a transcript that unquestionably showed the nature and scope of the counterclaim under attack on appeal. The majority's speculation about the counterclaim impermissibly attempts to compensate for these imperfections in the record supplied by appellant.
I.
An appellee has no burden to produce any part of the record on appeal unless appellant has supplied a record showing a prima facie basis for reversal, as our caselaw development shows. The earliest decision cited by the majority, Dulles v. Dulles, 302 A.2d 59, 60 (D.C.1973), as well as similar cases coming before and after it, do not apply to this case because they concern the efforts of both parties to provide a statement of proceedings and evidence, in lieu of transcript, pursuant to D.C.App.R. 10(j) (currently D.C.App.R. 10(d)). See Cole v. United States, 478 A.2d 277, 283-85 (D.C. 1984); Voight & McMakin Air Conditioning, Inc. v. Property Redevelopment Corp., 276 A.2d 239, 241 n. 2 (D.C.1971). In a missing transcript situation, the trial court has the ultimate responsibility for constructing an adequate record for review, see Cole, 478 A.2d at 284; Dulles, 302 A.2d at 60, and thus, quite naturally, a court rule requires both parties to lend a hand.[1]
The first of our decisions bearing on this case is Parker v. Stein, 557 A.2d 1319 (D.C.1989). There, we reversed the denial of a motion for a new trial on punitive damages and emotional distress. Both claims were well pleaded and supported by the transcript included in the record. The only question of the record's adequacy arose with respect to whether there may have been trial judge rulings, omitted from the record on appeal, that would have helped the defendant-appellee if he had supplied them to this court. In Parker, therefore, appellant had provided a record adequate to sustain his appeal, in effect shifting the burden of production to appellee to show otherwisea burden he failed to meet.[2] In contrast, as elaborated in Part II below, Sterling Mirror failed to provide a record plainly reflecting a prima facie basis for reversal.
Since deciding Parker in 1989, this court has applied it twice in circumstances similar to those in this case. The first decision, Smith v. Jenkins, 562 A.2d 610 (D.C.1989), concernedas in this casea "record [that] does not include a copy of the [relevant] counterclaim." Id. at 612 n. 2. In affirming, we reiterated Cobb's rule "that the party seeking reversal bears the burden of presenting a record sufficient to show that error occurred, and if the record is insufficient for that purpose, we lack discretion to reverse." Id. (citations omitted). Two years later in Sparrow World Baptist Church v. E.M. Willis & Sons, 594 A.2d 549 (D.C.1991), we reversed and remanded because "nothing in the record on appeal supports appellee's claim," citing Parker for the proposition that "appellee *71 must provide a record on appeal to support its contentions once appellant has presented a record to support appellant's contentions on appeal," id. at 552 (emphasis added), as appellant had in Parker.
Our caselaw, thereforefrom Cobb through Sparrow World Baptist Churchmakes clear that appellee has no burden to produce any part of the record on appeal unless appellant has supplied a record showing a prima facie basis for reversal. Here appellant, Sterling Mirror, has not met this initial burden.
II.
In the case under review, Sterling Mirror did not supply this court either with a copy of its complaint or with a copy of Mrs. Gordon's counterclaim.[3] Without the counterclaim before us, it is impossibleaside from speculationto decide whether the trial court improperly awarded damages on that counterclaim.
The trial court did not specify the legal theory behind its ruling on Mrs. Gordon's counterclaim:
And as to the claim, counterclaim of Mrs. Gordon, I find that there again on that claim, her testimony is unrebutted and unaddressed by the defendantby the plaintiff, not the defendant, and that there were a large number of calls to her job with respect to a contract that she didn't sign and had not participated in in any way.
* * * * * *
[T]he counter-claimant Daisy Gordon [shall] recover of the counter-defendant Sterling Mirror of Maryland the sum of $1,000.00 with interest at the rate of 8% as provided by law, and her costs of action.
(Emphasis added). By presenting no evidence at trial in response to Mrs. Gordon's counterclaim, Sterling Mirror apparently assumed that the court would find that Mrs. Gordon had not affirmatively proved all the elements of her cause of action. Now, having lost at trial on the basis of that assumption, Sterling Mirror still wants to contend that she has not proved her case without supplying this court with the counterclaim necessary to identify her legal theory or theories and the essential elements of her cause or causes of action.
Moreover, Sterling Mirror has not even supplied a complete transcript of the proceedings; we have only Mrs. Gordon's testimony. Even though the court reporter's transcription of this testimony appears to be complete, I would fault Sterling Mirrorunder the circumstancesfor ordering only Mrs. Gordon's testimony. Between Mrs. Gordon's testimony and the trial court's findings the court reporter inserted the following entry:
[There followed further testimony and colloquy, which proceedings were reported but are not requested to be transcribed herein, and the proceedings continued further, as follows:]
This "further testimony" by some unidentified witness or witnesses for Mrs. Gordon[4] may have provided additional proof for some element of her legal theory, whatever it was. I will assume the majority's doubtful propositionsolely for the sake of argumentthat this court can comb the trial record, even without access to an appellee's pleadings, to discern whether that party did, or did not, prove some kind of claim. But surely, in that case, this court must *72 have access to the entire transcript in order to evaluate any possible cause of action. Otherwise, the court will have no justification for agreeing (as Sterling Mirror would have us say here) that "[n]o common law basis for [the trial court's] decision can be found."
Nonetheless, without the benefit of pleadings or of a complete transcript, the majority speculates as to what Mrs. Gordon's counterclaim is all about, proffering two statutes and a common law theory, and then shoots each down.[5] The trial court, however, in its findings and judgment, did not cite either statute or any common law theory. It is not for this court to say that missing pleadings and an incomplete transcript could not have justified recovery. My colleagues in the majorityacting first as Mrs. Gordon's lawyer to identify her theories, and then as appellate judges to reject themmay well be right that they have identified the only possible theories of recovery for a counterclaim,[6] and that the record, if completely revealed to us, would not support liability under any of them. But the majority may be wrong, and its approach sets a very bad precedent.
Think of the implications. There can be a multi-count complaint and counterclaim in a complex field of commercial law where certain, very specific allegations are required for each. If a losing party, in taking an appeal, does not provide us with the pleadings and all relevant portions of the transcript, I do not see how we, as judges, can properly conclude that the prevailing party and the trial judge or other trier of fact were wrong. If an appellant, in a brief, purports to state the facts and then throws out legal arguments that may or may not be dispositive, but cannot be tested against a formal complaint and a complete record, this court cannot responsibly decide the case.
I believe we have only one choice here: to affirm the judgment for lack of an adequate record on appeal to justify any other disposition.
NOTES
[1] A "debt collector" is defined in the Act, in pertinent part, as:
any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (G) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.... The term does not include
(A) any officer or employee of a creditor while in the name of the creditor, collecting debts for such creditor.
* * * * * *
(G) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.
15 U.S.C. § 1692a(6)(A), (G).
[2] The trial court did not state the basis for its decision. Where a debt collector fails to comply with the provisions of the Debt Collection Act, civil damages may be awarded not exceeding $1,000 for an aggrieved individual. 15 U.S.C. § 1692k(a)(2)(A).
[3] The term "consumer credit sale" is defined in the statute as:
a sale of goods or services in which
(A) A credit is granted by a person who regularly engages as a seller in credit transactions of the same kind;
(B) the buyer is a natural person;
(C) the goods or services are purchased primarily for a personal, family, household, or agricultural purpose;
(D) either the debt is payable in installments or a finance charge is made; and
(E) the amount financed does not exceed $25,000.
D.C.Code §§ 28-3802(2)(A)-(E). The term also covers certain bailment and lease contracts not pertinent here. See id.
[4] "`[D]irect installment loan' means a direct installment loan as the term is used in section 28-3308...", with certain exclusions irrelevant to our review. D.C.Code § 28-3802(3). Installment loans covered by D.C.Code § 28-3308 include, with certain exceptions not pertinent here, those "to be repaid in equal or substantially equal monthly or other periodic installments, including a loan obtained by using a check, credit card, or other device to access a line of credit...." D.C.Code § 28-3308(a). The cash on delivery transaction involved here does not fall within any of these categories.
[5] A correct judgment of the trial court will be affirmed on appeal even if the conclusion is based upon the wrong ground. Marinopoliski v. Irish, 445 A.2d 339, 340 (D.C.1982); Max Holtzman, Inc. v. K. & T. Co., Inc., 375 A.2d 510, 513 n. 6 (D.C.1977); Bakal v. Weare, 583 A.2d 1028, 1030 (Me.1990); Small v. Colbeth, 447 A.2d 82, 82-83 (Me.1982); see also Gov't Employees Ins. Co. v. Group Hospitalization Medical Serv. Inc., 602 A.2d 1083, 1086 (D.C.1992). For that reason, we have considered whether the trial court's decision is affirmable on any other grounds. It is our discharge of this responsibility that our dissenting colleague inaccurately characterizes as "acting ... as [appellee's] lawyer to identify her theories."
[6] Although an action for mental distress was not recognized at common law, its existence as an independent tort now is well-established. Saunders v. Nemati, 580 A.2d 660, 661 (D.C.1990).
[7] Appellant also specified in the Notice of Appeal that it requested the transcript of appellee's testimony and not just a portion of it. Appellant's "Statement Regarding Transcript" filed with the court also indicates the appellant ordered "[a]ppellee's testimony" without limitation.
[8] The trial was brief, and the record reveals the following chronology in the proceedings:
Case called before the court for non-jury trial. Plaintiff's testimony completed. Plaintiff's oral motion for directed verdict heard and denied. Defendant's testimony completed. Findings of Fact and conclusion of law made a part of the record.
The court reporter's transcript shows that appellee's only testimony was the direct and cross-examination which is a part of the record on appeal, as designated by appellant. At the conclusion of appellee's trial testimony, the trial court excused her in a customary way: "All right, thank you ma'am. You may step down." Although all of appellee's testimony is a part of the record on appeal, it fails to disclose that she suffered any cognizable injury or damages as a result of the conduct of appellant's agents or employees. Of course, if an appellee deems other portions of the transcript to be necessary, the appellee is required to take steps consistent with our rules to designate them, D.C.App.R. 10(c)(4), and if necessary, to obtain an order requiring the appellant to order it. D.C.App.R. 10(c)(5).
[9] Appellee testified:
The only thing I want to say the harassment that I went through really caused me a lot of hardship on my job, ... different people calling me constantly about this money ...
* * * * * *
I think that is really rotten that I would have to lose time off my job and possibly be in a situation where I have to deal with [my husband] getting sicker because of this ...
Appellee's testimony is devoid of evidence supporting any other theories of liability or any other claims for damages.
[10] The trial court found in pertinent part as follows:
And as to the claim, counterclaim of Mrs. Gordon, I find that there again on that claim, her testimony is unrebutted and unaddressed by the defendantby the plaintiff, not the defendant, and that there were a large number of calls to her job with respect to a contract that she didn't sign and had not participated in in any way. Itthe making of some calls under those circumstances, as the plaintiff has testified that that was a need to have a daytime phone number at work or that there was the customary practice in getting these phone numbers, that makes sense. But as to a non-party to the transaction, the real collection measures would not appropriately go to that person, and I find thatthat the line between reasonable notification and even and even reasonable collection efforts was made, and unreasonable ones or unjustifiable harassment in proceeding against a non-party was crossed in these circumstances, and I find for the counter-plaintiff in the amount of $1,000.
[11] D.C.App.R. 10(c)(4) and (5) provides respectively, in pertinent part, as follows:
(4) Designation by appellee of additional transcript. If the appellee deems a transcript of other portions of the proceedings to be necessary, the appellee shall file and serve on the appellant within five days after the service of the statement required by paragraph (3) a designation of additional portions to be included.
(5) Duty of appellee if appellant refuses to order additional transcript. If the appellant shall refuse to order a transcript pursuant to paragraph (4), the appellant shall so notify the appellee within five days after service of the appellee's designation and shall file a copy of the notice with the clerk of the court and with the Clerk of the Superior Court. The appellee within five days thereafter shall either order the designated portions, in which event a statement shall be filed with respect to the ordering of the transcript similar to the aforesaid statement required of the appellant, or shall apply to the Superior Court for an order requiring the appellant to order the transcript.
[1] In remanding for further proceedings in Dulles, we faulted the trial court for certifying the inadequate record presented; we did not ascribe that failure to appellee.
[2] Like the majority opinion in the present case, Parker cites Dulles outside the context of D.C.App.R. 10(j) (now D.C.App.R. 10(d)), but only for the proposition that responsibility for producing record support for an argument on appeal shifts to appellee after appellant has met the burden imposed by Cobb. See Parker, 557 A.2d at 1323.
[3] Sterling Mirror filed a brief but Mrs. Gordon did not. The case was assigned to our summary calendar, and neither party asked for oral argument.
[4] By ordering only Mrs. Gordon's testimony, Sterling Mirror implies that it is the only portion of the proceedings relevant to her counterclaim, but Sterling Mirror provides no proof other than Mrs. Gordon's failure to demand additional portions of the transcripton which this court can base such a conclusion. While an entry in the official record of the proceedings states "Defendant's testimony completed," perhaps suggesting that only one witness appeared, we know that both Mr. and Mrs. Gordon were defendants and that both testified. Although the trial judge mentioned only Mrs. Gordon's testimony in evaluating her counterclaim, the court reporter's notation about "further testimony" raised questions about additional evidence that Sterling Mirrornot this courthas the responsibility to resolve.
[5] After noting in its brief that the trial court "did not state the basis of the decision" and merely asserting that "[n]o common law basis for such a decision can be found," Sterling Mirror concludes that the court must have "erroneously based its decision upon either the Federal or the District of Columbia statutes regulating debt collection, neither of which are applicable to this case."
[6] Based on the portion of the transcript filed by Sterling Mirror, Mrs. Gordon testified, in part:
And before Ibefore I got to work, came back to work because I had been out for a few weeks, my supervisor had been telling me that someone had been calling me and something had to be done about it because she couldn't put up with it any longer because they were constantly calling and asking to speak to me. They were from Sterling Mirrors.
So, once I came back to work then, you know, I started getting these calls from a man, and he was telling me the same thing. He said you'll have to pay this money, and I said money, for what? And he said you and your husband had purchased some mirrors. I told him, I said, I haven't purchased any mirrors.
* * * * * *
The only thing I want to say the harassment that I went through really caused me a lot of hardship on my job, because I work in the sameI work for the same people, but I was moved, and I think the reason why I was moved is because they got tired of the harassment. And my supervisor told me even after I was moved that the calls continued to come in from Sterling Mirrors, different people calling constantly about this money, and so, I just, you know, I just told her like this. I am gone. There is nothing I can do. But on my husband's behalf, he is a very sick man. He is 100 percent disabled veteran. He doesn't have any problems with paying his bills because we have a pretty nice home and stuff like that, and I think that is really rotten that I would have to lose time off my job and possibly be in a situation where I have to deal with him getting sicker because of this, because it is hard pushing a wheelchair when you don't have to for some stuff, and you losing your leave and all this kind of stuff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263380/ | 142 F.Supp. 417 (1956)
Doris BERKMAN, Plaintiff,
v.
ANN LEWIS SHOPS, Inc., Defendant.
United States District Court S. D. New York.
June 20, 1956.
George M. Lehr, New York City, for plaintiff.
Kugel, Mezansky & Berkeley, New York City, for defendant, Samuel Mezansky, New York City, of counsel.
DAWSON, District Judge.
This action, tried by the Court without a jury, is one wherein the plaintiff sues as assignee of three judgments returned in Florida against the defendant. The action was started in the State Courts of New York and removed to this Court by reason of diversity of citizenship. The defendant admits that the judgments were rendered against it in Florida, but contends the judgments are void on the ground that the Florida Court lacked jurisdiction over it.
The action involves primarily the question as to whether jurisdiction was obtained in Florida over the defendant, a Delaware corporation with no office or agent in the State of Florida, solely because of the fact that the defendant had a wholly-owned subsidiary in that State.
The Facts
There is no controversy as to the essential facts. The defendant, Ann Lewis Shops, Inc., was organized in 1946 under the laws of the State of Delaware. Its business was described by its president as that of "a parent company operating various subsidiaries, owning various subsidiaries which operate women's retail *418 establishments." The defendant does not operate any of the establishments by itself; it does not operate any shops or selling agencies directly; it had no office or place of business in Florida.
Defendant did cause to be organized a wholly-owned subsidiary, also chartered under the laws of Delaware, under the name of "Ann Lewis Shops of Tampa, Inc." (hereafter sometimes referred to as the "subsidiary"). This was the only subsidiary of the defendant which engaged in business in the State of Florida. At the time of the organization of this subsidiary, the defendant had approximately forty-seven separate subsidiaries.
This subsidiary, Ann Lewis Shops of Tampa, Inc., was incorporated for the specific purpose of owning and operating a store in Tampa, Florida. It had $10,000 paid-in capital. The defendant invested $70,169 in the form of capital contribution and/or loans in this subsidiary, and has been the sole stockholder of the subsidiary since its inception. The parent company and the subsidiary maintained separate books of account and had separate bank accounts. The subsidiary had five or six employees in Florida, none of whom was an employee of the parent company. The officers and directors of the parent and subsidiary companies were substantially the same. The parent company maintained a buying service which made purchases, and each subsidiary was charged with the expense of maintaining such central buying service.
On or about September 10, 1946, a lease was entered into between the subsidiary and Cuesta Rey & Company, a Florida corporation which is the plaintiff's assignor. This lease was the basis of the causes which underly the Florida judgments. The lease was signed by the subsidiary, and the obligations under the lease were guaranteed by the parent corporation. Louis Silver and Ira Silver signed as president and secretary of both the parent and the subsidiary corporations in New York City on September 10, 1946. It was signed on the landlord's behalf on October 15, 1946 in Tampa, Florida. An agreement modifying the lease was signed by the same individuals on behalf of the three parties in 1951 again in New York City and Tampa, respectively.
On June 8, July 1, and July 7, 1955, Cuesta Rey & Company, the landlord, commenced actions upon the lease against both the parent and the subsidiary in the Circuit Court for the 13th Judicial Circuit in and for Hillsborough County, Florida. The attorney sent to the defendant in this action, by registered mail, notices of the institution of the suits pursuant to §§ 47.16 and 47.30 of the Florida Statutes, F.S.A., along with copies of the summons and complaint. He also filed copies in the office of the Secretary of State of Florida and apparently complied in all respects with the prescribed procedure for substituted service of process. The defendant has conceded that it received the notices at its main office in New York City. Neither the parent nor the subsidiary appeared and on motion of the plaintiff, default judgments were rendered against both the defendant and its subsidiary in the three actions as follows:
No. 30124-L for $2,273.85 on July 21, 1955;
No. 30174-L for $2,278.77 on August 2, 1955;
No. 30197-L for $6,687.74 on August 2, 1955.
The first two judgments were for rent installments for May 1, and June 1, 1955. The third was for delinquent taxes that were to be paid on April 1, 1955. All three judgments include sums for reasonable attorneys' fees claimed pursuant to a provision in the lease, and costs. It is not disputed that the Florida Court had jurisdiction over the subsidiary.
Partial payments were made on all three judgments (by whom does not appear) so that there is now owing $746.16 on the first, $730.72 on the second, and $5,734.89 on the third, and interest. On October 11, 1955, Cuesta Rey & Company, the landlord, assigned the judgments to Doris Berkman, the plaintiff. *419 Shortly afterward, the present action was commenced in the New York Supreme Court and removed by the defendant to this Court.
It is the defendant's contention that the Florida judgments are void because it was not doing business in Florida at the time of their rendition and of the substituted service of process.
The parent had no employees located in Florida, and has never done any business in that State except as may be inferred from the foregoing.
The statute under which jurisdiction was asserted in Florida provides, in part:
Section 47.16Florida Statutes. "Service of process upon nonresidents engaging in business in state. The acceptance by any person or persons, individually, or associated together as a copartnership or any other form or type of association, who are residents of any other state or country, and all foreign corporations, and any person who is a resident of the state and who subsequently becomes a nonresident of this state or conceals his whereabouts, of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture, in the state, or to have an office or agency in the state, shall be deemed equivalent to an appointment by such persons and foreign corporations of the secretary of state of the state as the agent of such persons or foreign corporations upon whom may be served all lawful process in any action, suit or proceeding against them, or either of them, arising out of any transaction or operation connected with or incidental to such business or business venture, and the acceptance of such privilege shall be signification of the agreement of such persons and foreign corporations that any such process against them or either of them, which is so served shall be of the same legal force and validity as if served personally on such persons or foreign corporations."
This statute was enacted in 1951. To establish jurisdiction, it is necessary to determine whether, based upon the foregoing facts, the defendant's activities were such as "to operate, conduct, engage in, or carry on a business or business venture, in the State of Florida".
The recitals in the three judgments, upon which the Florida Court based its jurisdiction, were as follows:
"That the guarantee of the provisions of said Lease Agreement by Ann Lewis Shops, Inc., was in connection with the business venture of Ann Lewis Shops, Inc., in the State of Florida. That Ann Lewis Shops of Tampa, Inc., is a wholly owned subsidiary of Ann Lewis Shops, Inc., and, constitutes the vehicle by which Ann Lewis Shops, Inc., sold merchandise under the trade name `Ann Lewis' in the State of Florida. That Ann Lewis Shops, Inc. is engaged in the business of selling merchandise under the trade name `Ann Lewis', either individually, or through wholly owned subsidiaries, and the president and secretary of both Ann Lewis Shops, Inc. and Ann Lewis Shops of Tampa, Inc., are the same. That said Ann Lewis Shops, Inc., was duly and properly served in accordance with the provisions of Section 47.16 of the Florida Statutes."
Discussion
Ordinarily, of course, the judgment of a court of another state is entitled to full faith and credit in every Court within the United States as it has by law or usage in the state in which it was rendered. 28 U.S.C. § 1738. However, in a suit upon the judgment of another state, the jurisdiction of the Court which rendered it is still open to judicial inquiry and when the matter of fact or law on which jurisdiction depends was not litigated in the original suit, it is a matter to be adjudicated in the suit founded upon the judgment. *420 Adam v. Saenger, 1938, 303 U.S. 59, 62, 58 S.Ct. 454, 82 L.Ed. 649.
The issues, therefore, which are presented for determination of this Court are whether the activities of the defendant were such as to give jurisdiction to the Courts of Florida under the particular statute of Florida here involved; and, if so, whether a statute so construed would be violative of the provisions of the Fourteenth Amendment to the United States Constitution as depriving a person of due process of law.
The Florida cases which have interpreted the Florida statute here involved have not passed upon the question as to whether a foreign corporation may be subjected to jurisdiction by reason of the fact that it has a wholly-owned subsidiary doing business in the state.[1]
In one case decided before the enactment of the present statute, the Florida Supreme Court intimated that a foreign corporation is not "transacting business" within the state within a statute requiring a foreign corporation to obtain a permit to "transact business" within the state merely by reason of the fact that it owned or purchased stock of a domestic corporation engaged in transacting business therein. The Court also relied on a statutory proviso that "`"no violation of this law shall affect the title to property thus acquired."'" Crockin v. Boston Store of Ft. Myers, 1939, 137 Fla. 853, 188 So. 853, 857. The Court quoted, apparently with approval, the statement at 14A. C.J. p. 1291 as follows:
"`It has generally been held that a foreign corporation is not "doing" or "transacting business" within the meaning of the statutes under consideration by reason of the fact that it owns and holds stock of a domestic corporation engaged in "doing" or "transacting business" therein. This is true, although the amount owned and held constitutes the controlling interest.'" See also 20 C.J. S., Corporations, § 1841.
The general rule is, and has been for many years, that a foreign corporation which has a wholly-owned subsidiary in a state which performs the local activities of soliciting, selling, and distributing products provided by the parent company is not amenable to suit in the local forum, provided that separate identities of the two corporations are maintained. The leading case on this subject is Cannon Mfg. Co. v. Cudahy Pkg. Co., 1925, 267 U.S. 333, 45 S.Ct. 250, 251, 69 L.Ed. 634. In that case, the defendant, a Maine corporation, marketed its products in North Carolina through a subsidiary, an Alabama corporation, which it completely dominated through stock ownership and otherwise. The Supreme Court held that the defendant corporation did not thereby do business in North Carolina so as to be present there for purposes of suit. The Court pointed out that although the parent company completely dominated the subsidiary in the same way as it did those selling branches or departments of its business which were not separately incorporated, nevertheless, the existence of the subsidiary company as a distinct corporate entity was in all respects observed. Mr. *421 Justice Brandeis, in delivering the opinion of the Court, said:
"All transactions between the two corporations are represented by appropriate entries in their respective books in the same way as if the two were wholly independent corporations. This corporate separation from the general Cudahy business was doubtless adopted solely to secure to the defendant some advantage under the local laws."
The Court said that the question was "whether the corporate separation carefully maintained must be ignored in determining the existence of jurisdiction" and held that this corporate separation could not be ignored and that the parent company was not present in North Carolina for purposes of suit in that State.
This decision is recognized by the commentators of the present as still good law.[2]
The decision has also been followed in many recent cases.[3]
Thus absolute domination through capital stock ownership and direction is not alone sufficient even though the subsidiary is the instrumentality employed by the parent for the transaction of the latter's business within the forum state.
The cases in which the corporate separation has been disregarded were cases where there was something more than complete control and direction of the subsidiary by the parent. There may be situations where the subsidiary acts not on its own behalf but acts as the agent of the parent. In such a case, of course, the parent would be deemed doing business in the forum state not by reason of the fact that it has a subsidiary in the state but by virtue of the fact that the subsidiary acted as agent for the parent in that state.[4]
So, also, jurisdiction may be established at times where the plaintiff is seeking to enforce against a subsidiary a liability of the parent corporation; or where the corporate subsidiary is used as an instrumentality or adjunct of the parent corporation for the accomplishment of some illegal or fraudulent or dishonest purpose; or where the subsidiary was nothing more than a "dummy".[5]
In the present case, plaintiff bases its claim of jurisdiction of the parent in Florida solely upon the ground that the parent owned all of the stock of the subsidiary company, that both had the same Board of Directors and substantially the same officers; that the parent *422 company had a central buying agency for all of its subsidiaries; and that the parent guaranteed a lease of the subsidiary. These facts alone would not be sufficient to establish that the parent company was operating or carrying on a business or a business venture in the State of Florida under the generally recognized principles of law. The fact that each corporation had separate bank accounts, separate employees, and separate books showed that the corporate identity of each was carefully preserved. The fact that the subsidiary had a capital of its own and substantial amounts of money put into it showed that it was not a "dummy". The plaintiff did business with the subsidiary in Florida in the sense that it leased property to the subsidiary. It secured a separate guaranty of the lease from the parent which it recognized as a foreign corporation, and which guaranty was signed in New York. If plaintiff had so desired, it could have insisted, as a provision of the lease, that it consent to suit in the State of Florida. Such a stipulation would have been effective to give the Courts of Florida jurisdiction in personam. Gilbert v. Burnstine, 1931, 255 N.Y. 348, 174 N.E. 706, 73 A.L.R. 1453. It did not insist upon such a stipulation. The plaintiff may still bring suit upon the guaranty in the State of New York where the Courts would unquestionably have jurisdiction. However, when the Florida statute used the terms a "business" or a "business venture", it must be concluded that the statute used them, in the light of the current law defining such terms, as not including a situation where a foreign corporation had a wholly-owned subsidiary in the forum state.
Findings and Conclusions
The Court therefore holds that on the facts before the Florida Court and before this Court, the defendant had not, within the meaning of the Florida statute, accepted
"the privilege * * * to operate, conduct, engage in, or carry on a business or business venture, in the State of Florida, or to have an office or agency in the State of Florida."
The Court concludes that the Florida Courts were without jurisdiction to render against the defendant the judgments which are here sued upon.
This is not to say that a statute might not constitutionally be drawn which would make the presence in a state of a wholly-owned subsidiary of a foreign corporation sufficient basis to assert jurisdiction over the parent company. All that the due process clause would require is that the defendant "have certain minimum contacts with [the territory of the forum] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice'."[6]
However, the Florida statute does not so provide, nor have the Florida Courts interpreted the Florida statute to that effect. Any such radical change in the policy of the law with reference to jurisdiction over a parent corporation because of the presence of a subsidiary in a state should not be accomplished by a Court decision under a statute which does not seem to envision such a drastic change in concepts. Any such change might have far-reaching economic results to the particular state both as to methods of doing business in the state and as to the willingness of foreign corporations to have subsidiaries enter business in that state.[7] Whether such change should be made should be left for determination by the legislative authorities of the state, who alone would have the opportunity *423 to weigh the economic advantages and disadvantages of such a change in the generally accepted concept of the terms "doing business" or "carrying on a business venture". Unless such legislation is enacted, the Court must agree with the opinion of the Court of Appeals of the Fourth Circuit when they said:
"Much can be said in support of the view that a manufacturer which distributes its product by selling it to a wholly owned and completely controlled subsidiary, should, for purposes of jurisdiction in the courts, be held to be doing business wherever the subsidiary sells the product. The fiction of different corporate entities ought not permit the manufacturer, in such case, to avoid suit in the states where its product is being sold and where the wholly owned and controlled subsidiary is representing it just as truly as if it were an agent in the legal sense; and we would so hold if we felt ourselves at liberty to do so. It is not for us, however, to overrule or modify decisions of the Supreme Court; and, until the doctrine of the line of cases to which we have referred is overruled or modified, it cannot be said that a corporation is doing business within a state merely because a wholly owned and controlled subsidiary is selling its product there, if the separate corporate entities are observed and the subsidiary has purchased the goods which it is selling and is not selling them as agent of the manufacturer." Harris v. Deere & Co., 4 Cir., 1955, 223 F.2d 161, at pages 162-163.
The motion of the defendant for judgment on the facts and on the law is granted, and judgment shall be entered for the defendant with costs.
This opinion shall constitute the findings of fact and conclusions of law of the Court.
NOTES
[1] State ex rel. Weber v. Register, Fla., 1953, 67 So.2d 619. This case involved the question as to whether non-residents who purchased an orange grove in Florida and operated and conducted it as a business venture in Florida and thereafter listed it for sale were engaged in a business venture within the State. The Court held that the purchase of the grove and the listing of the grove for sale amounted to engaging in a business venture within the meaning of the Florida statute. State ex rel. Guardian Credit Indemnity Corp. v. Harrison, Fla.1954, 74 So.2d 371, 373. In this case the Court held that where a foreign corporation which operated a collection service and had once qualified to do business in Florida, but whose agent had resigned, and which furnished its "brokers" with instructions and supplies for use in presenting a certain "`credit indemnity plan'" to prospective clients and where the effective performance of the contract between the corporation and the client could take place only in Florida, the corporation was engaged in a business or business venture within the State of Florida and was amenable to substituted service of process.
[2] Note, "Doing Business as a Test of Venue and Jurisdiction over Foreign Corporations in the Federal Courts", 56 Col. L.Rev. 394, 409 (1956); 18 Fletcher, Cyclopedia Corporations §§ 8773, 8774 (Revised 1955); Anno. "Ownership or control by foreign corporation of stock of other corporation as constituting doing business within state", 18 A.L.R.2d 187 (1951); 20 C.J.S., Corporations, § 1841 (1940).
[3] Harris v. Deere & Co., 4 Cir., 1955, 223 F.2d 161; Fergus Motors, Inc., v. Standard-Triumph Motor Co., D.C.S.D.N.Y. 1955, 130 F.Supp. 780; Proctor v. Sagamore Big Game Club, D.C.W.D.Pa.1955, 128 F.Supp. 885; Bergholt v. Hudson Motor Car Co., D.C.D.Minn.1954, 124 F. Supp. 716; Hudson Minneapolis, Inc., v. Hudson Motor Car Co., D.C.D.Minn. 1954, 124 F.Supp. 720; Terry Carpenter, Ltd. v. Ideal Cement Co., D.C.D.Neb. 1954, 117 F.Supp. 441; Ackerley v. Commercial Credit Co., D.C.D.N.J.1953, 111 F.Supp. 92, 103; Dam v. General Electric Co., D.C.E.D.Wash.1953, 111 F.Supp. 342; Gravely Motor P. & C. Co. v. H. V. Carter Co., Inc., 9 Cir., 1951, 193 F.2d 158; Donner v. Weinberger's Hair Shops, Inc., 1st Dept. 1952, 280 App. Div. 67, 111 N.Y.S.2d 310.
[4] Mas v. Orange-Crush Co., 4 Cir., 1938, 99 F.2d 675; Williams v. Campbell Soup Co., D.C.W.D.Mo.1948, 80 F.Supp. 865; Latimer v. S/A Industrias Reunidas F. Matarazzo, 2 Cir., 1949, 175 F.2d 184, certiorari denied 1949, 338 U.S. 867, 70 S.Ct. 141, 94 L.Ed. 531; Bator v. Boosey & Hawkes, D.C.S.D.N.Y.1948, 80 F.Supp. 294.
[5] See Terry Carpenter, Ltd. v. Ideal Cement Co., D.C.D.Neb.1954, 117 F.Supp. 441; United States v. Watchmakers of Switzerland Inf. C., D.C.S.D.N.Y.1955, 133 F.Supp. 40; United States v. Scophony Corp., 1948, 333 U.S. 795, 68 S.Ct. 855, 92 L.Ed. 1091.
[6] International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95; see Schutt v. Commercial Travelers Mut. Acc. Ass'n, 2 Cir., 1956, 229 F.2d 158; Travelers Health Ass'n v. Commonwealth of Virginia, 1950, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154; cf. Dam v. General Electric Co., D.C.E.D.Wash.1953, 111 F.Supp. 342.
[7] As Judge Murphy has pointed out, one of the dominant motives in organizing and having a subsidiary may be the parent's desire for "avoidance of suits". Fergus Motors, Inc., v. Standard-Triumph Motor Co., Ltd., D.C.S.D.N.Y. 1955, 130 F.Supp. 780, at page 781; see also National Carbide Corp. v. Commissioner, 1949, 336 U.S. 422, 438, footnote 21, 69 S.Ct. 726, 93 L.Ed. 779. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263115/ | 27 F.Supp. 364 (1939)
HANSEN PACKING CO.
v.
SWIFT & CO. et al.
District Court, S. D. New York.
April 20, 1939.
*365 *366 George L. Schein and Joseph M. Cohen, both of New York City, for plaintiff.
White & Case, of New York City (Lowell Wadmond, Thomas Kiernan, and Vernon Munroe, Jr., all of New York City, and Albert H. Veeder, of Chicago, Ill., of counsel), for defendants.
GALSTON, District Judge.
This is an action at law to recover treble damages for injuries suffered by the plaintiff as the result of the defendants' alleged violation of the anti-trust laws of the United States.
The plaintiff was engaged in the business of purchasing and selling cattle, sheep, lambs, calves and hogs, collectively designated as live stock, and of processing, dressing and otherwise preparing and marketing live stock and live stock products, and in the operation of a slaughter house and meat packing plant and other allied equipment and facilities near Butte, in the State of Montana. The plaintiff owned the capital stock of several subsidiaries, namely, the Hansen Market Co., the Skyland & Stock Co., Montana Horse Products Co. and Metropolitan Meat and Dairy Co., and like the defendants, was engaged in interstate commerce, though most of its products were sold in Montana, and mainly to retail stores, restaurants and hotels.
The defendant Swift & Co., the Illinois corporation, was likewise engaged in the business of dealing in live stock and live stock products, and in processing such live stock and live stock products. From time to time it acquired by purchase or otherwise the capital stock of various corporations engaged in the same line of business. The other defendant Swift & Co., the West Virginia corporation, was a subsidiary of the Illinois corporation which substantially owned or controlled all of its capital stock. The West Virginia corporation operated mainly as a sales company, selling the products processed by the Illinois corporation.
Until about April 1935 only the West Virginia corporation had obtained authority to do business in the State of Montana. On or about that date Swift of West Virginia withdrew from Montana and Swift of Illinois qualified to do business there. The various branch houses in Montana operated under the name "Swift & Co." prior to April 1935, and though in charge of a branch manager, were under the jurisdiction and supervision of division superintendents of the Illinois corporation. The defendants employed two methods for the sale and distribution of their products in Montana. The Illinois corporation employed salesmen who, operating Swift & Co.'s automobiles, traveled "car routes" in the territory assigned to them. They were furnished with price lists sent from the Illinois plant from which they quoted prices to retailers. The salesmen solicited orders from customers, executed the contracts of purchase and made collections for sales, the proceeds of which they forwarded to the plant under whose jurisdiction they were employed. These car routes ran through the eastern and southern parts of Montana, and the salesmen on these routes worked from the South St. Paul, Minnesota, and Sioux City, Iowa, plants of the Illinois corporation as their headquarters. During the period from 1928 to 1934 there were approximately half a dozen such car route salesmen in Montana. Their salaries were paid by the Illinois corporation.
In 1931 Swift & Co., the West Virginia corporation, maintained Montana branches in Butte, Helena, Missoula, Billings and Great Falls, and the properties thus occupied were until some time in 1935 owned by the West Virginia corporation. In that year they were taken over by the Illinois corporation. Sales to retailers were made at the branch house and through salesmen who traveled through the territory served by the branch houses. It appears that from 1928 to 1934 the managers of these branch houses were under the supervision of district managers employed by the Illinois corporation.
During the period in question, the companies which competed with one another in the business of selling live stock products in Montana in addition to the plaintiff and the defendants, were Armour & Co., Morrell & Co., the American Packing Co. and several smaller packing houses.
Some time in March 1931 a vexed situation developed in the Butte produce market. A former manager of defendants' Butte branch testified that in March 1931 a committee from the Amalgamated Meat Cutters Union of North America, which at that time had a local branch in Montana, notified him that the union had voted to boycott the products of Swift, Armour *367 and Morrell that were not processed or manufactured in plants organized with union labor. This action of the union was followed by a price cutting campaign. Hams were sold to the retail trade in Butte as low as 14¢, lard around 6¢ or 7¢, bacon about 17¢ and beef for about 6¢. Those prices were markedly below the normal range.
The campaign engineered by Swift & Co. and Armour & Co., as described by Bretherton, consisted in part of getting some of the big users of ham, bacon, lard and beef to take the product of Swift and Armour at the reduced prices. It is significant as bearing upon the defense of the statute of limitations, to which reference will hereafter be made, that this period of low prices, or of the campaign, as it has been designated, lasted, as Bretherton said, "sixty days from start to finish about sixty days."
At the conclusion of the plaintiff's case the defendants moved to strike from the record a number of plaintiff's exhibits which had been admitted subject to connection; and moved to dismiss the complaint on the ground that the plaintiff had failed to make out a prima facie case under either the Sherman Act (15 U.S.C.A. § 1 et seq.) or the Clayton Act (38 Stat. 730), and for the reason that the cause of action, if any, was barred by the statute of limitations.
It is clear that in the anti-trust acts themselves there is no limitation of action provided and accordingly, as was held in Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S.Ct. 65, 51 L.Ed. 241, the matter of limitation is left to the local law. The plaintiff contends that the applicable local law is that of the State of New York and that in consequence its six year statute of limitation controls. But Sec. 13 of the New York Civil Practice Act must be read in that connection for it provides: "Limitation in action arising outside of the state. Where a cause of action arises outside of this state, an action cannot be brought in a court of this state to enforce such cause of action after the expiration of the time limited by the laws of a state or country where the cause of action arose, for bringing an action upon such cause of action, except where the cause of action originally accrued in favor of a resident of this state."
See National Surety Co. v. Ruffin, 242 N.Y. 413, 152 N.E. 246; Jacobus v. Colgate, 217 N.Y. 235, 111 N.E. 837, Ann.Cas. 1917E, 369; and Shipman v. Treadwell, 208 N.Y. 404, 102 N.E. 634. Since the plaintiff is not a resident of the State of New York it follows that Sec. 13 of the Civil Practice Act must apply to the circumstances of this case. It is idle for the plaintiff to contend that when the Supreme Court, in Chattanooga Foundry & Pipe Works v. City of Atlanta, supra, said that the local law applied, it meant that only part of the local law on limitations is to be considered. Since the acts complained of arose in the State of Montana it must follow that by the law of the forum the statute of limitations of the State of Monana will be the test.
Then the plaintiff contends that if the statute of limitations of the State of Montana is to be applied, the five year period rather than the two year period of the Montana Code shall determine. Sec. 9033 of the Montana Code provides:
"Two-year limitation. Within two years:
"1. An action upon a liability created by statute other than a penalty or forfeiture."
Of course, it is conceded that the action for recovery under the Clayton Act, § 4, for treble damages, 15 U.S.Code, § 15, 15 U.S.C.A. § 15, is not for a penalty or forfeiture, but the plaintiff urges such action is not based on a liability "created" by statute. It is asserted that the anti-trust laws are held to be a mere codification of the common law. Shelton Electric Co. v. Victor Talking Machine Co., D.C., 277 F. 433; Matter of Davies, 168 N.Y. 89, 61 N.E. 118, 56 L.R.A. 855; Standard Oil v. United States, 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619, 34 L.R.A.,N.S., 834, Ann.Cas. 1912D, 734; H. J. Jaeger Research Laboratories v. R. C. A., 3 Cir., 90 F.2d 826.
None of these cases supports the proposition that the statutory liability pursuant to which this case is brought is a codification of a common law right. Of course, the common law, as in the law of libel, does permit of punitive as well as actual damages. But the treble damages of the Clayton Act define a new liability. Hocking Valley R. Co. v. New York Coal Co., 6 Cir., 217 F. 727. Moreover, in the light of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, it is difficult to understand how there can be any codification of any applicable federal general law existent prior to the *368 enactment of the anti-trust statutes. Similar state statutes imposing limitations in actions upon a liability created by statute were considered in Seaboard Terminals Corporation v. Standard Oil Co. of New Jersey, D.C., 24 F.Supp. 1018; Foster & Kleiser Co. v. Special Site Sign Co., 9 Cir., 85 F. 2d 742, without suggestion that the Clayton Act codified rather than created a statutory liability.
Thus it follows that the two year period of limitations must be applied to the cause of action set forth in this complaint. Since it was filed in April 1934, it becomes important to determine when the last overt or tortious act was committed. The only violation of the anti-trust acts, proof of which is adduced in this cause, is that which relates to acts committed prior to July 1931, for in no subsequent period does it appear that the defendants entered into any combination or conspiracy in restraint of trade as defined in Sec. 1 of the Sherman Act (U.S. Code, Title 15, § 1, 15 U.S.C.A. § 1) or Sec. 2 of the Sherman Act (U.S.Code, Title 15, § 2, 15 U.S.C.A. § 2), nor did they "directly or indirectly * * * discriminate in price between different purchases of commodities * * * where the effect of such discrimination may be to substantially lessen competition or tend to create a monopoly in any line of commerce" as defined in the Clayton Act, § 2 (U.S.Code, Title 15, § 13, 15 U.S.C.A. § 13).
The slashing of prices in Butte involved at most a period of three months from the end of March 1931. The concerted action of large live stock producers as a defense measure was an answer to the action of the labor union in Butte and was confined to Butte and its environs. There is no evidence that these producers, by concert or otherwise, carried their price cutting to other areas. It is true that there is testimony relating to short weight and varying prices subsequent to the end of June 1931, but such measures were apparently nothing beyond what might be expected in the effort to get business when and where competition was keen.
The witness Richter, for example, formerly employed by Swift & Co., and now employed by the plaintiff, entered the employ of Swift in September 1930 as a salesman and traveled through a territory around Butte including Deer Lodge, Anaconda, Avon, Elliston, Dillon and the vicinity. He said that the price cutting in Butte and thereabouts lasted several weeks. In 1932 and subsequent times he worked for Swift in various other branch houses in Montana. He admitted that he sought to meet competition. The testimony that bears upon lowering of prices in order to get business in districts outside of Butte, both prior and subsequent to the trouble period, shows no violation of the anti-trust statutes. The most that can be drawn from the declaration of the witnesses is that in the effort to get business competition was keen. There is no evidence of any concerted effort among Swift, Armour, Morrell and the other packers other than that which related to the trouble in Butte. Certainly the testimony in respect to short weighting from shipments made out of the Billings plant, even assuming that such short weighting was deliberate which is by no means proved affords no evidence of a violation of either the Sherman or the Clayton Acts.
Even the exhibits giving a compilation of comparative prices of Swift and Hansen to customers in Butte, subsequent to July 1, 1931, show no systematic price cutting by Swift. Indeed in many instances Hansen's prices were lower than Swift's. The exhibits 114 to 118, which are graphs or charts purporting to show the comparison of invoices representing sales by Swift & Co. to a customer in Deer Lodge, Montana, and invoices of the plaintiff to various of its customers in the same city, demonstrate, at least for the period subsequent to July 1, 1931 that at times Swift was higher, at other times Hansen; but clearly they fail to demonstrate any price discrimination such as falls within the limitation of the anti-trust statutes.
Nor is the two year Montana statute tolled as against the Illinois corporation, for in the Montana Code bearing upon the statute of limitations there is no provision which tolls the statute against a foreign corporation not authorized to do business within the state. The defense of the statute was therefore available. See King v. National Mining & Exploring Co., 4 Mont. 1, 1 P. 727.
As a matter of fact, within the meaning of the Clayton Act, the Illinois corporation was transacting business in the State of Montana during all the period complained of and up to the filing of the complaint herein. Though the West Virginia corporation operated the branch houses, they were, as I have stated, nevertheless subject *369 to the supervision of division managers employed by the Illinois corporation; the Illinois corporation employed car route salesmen who solicited business in certain areas in the eastern part of Montana throughout the period complained of and as late as the middle of 1934. These salesmen were empowered not only to solicit orders but to execute contracts of sale. It was not necessary for them to obtain the confirmation of such sales by any officer or official of the home office. In addition they made collections of payments due from the customers of the Illinois corporation with whom they were doing business. Such activities clearly constituted business transacted within the State of Montana, Eastman Kodak Co. v. Southern Photo Co., 273 U.S. 359, 47 S.Ct. 400, 71 L. Ed. 684. During the entire period it was entirely possible, under the provisions of the Clayton Act, to bring suit not only in the judicial district of which it was an inhabitant but also in any district where it could have been found or transacted business, and all process in such cases may be served in the district of which the corporation is an inhabitant or wherever it may be found. Clayton Act, § 12, U.S.Code, Title 15, § 22, 15 U.S.C.A. § 22; Eastman Kodak Co. v. Southern Photo Co., supra; International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479.
In this view of the case it becomes unnecessary to pass on that part of the defendant's motion to dismiss which asserts that plaintiff has failed to make out a case under Sec. 2 of the Clayton Act, 15 U.S. C.A. § 13, because no evidence was introduced to show price discriminations in interstate commerce. However, I have given consideration to the subject, as well as to the contention that no ascertainable damages were proved.
On the question of interstate commerce, reliance is had on Lipson v. Socony Vacuum Corporation, 1 Cir., 87 F.2d 265. There the plaintiff, a dealer in gasoline, sought to recover treble damages for price discrimination. The gasoline was shipped from the defendant's refineries not for delivery to any particular customer but to be stored for sale to the public. The court concluded that interstate commerce ended when the gasoline was received by the defendants in Massachusetts for storage, and that the sales and deliveries thereafter to retail customers were in intrastate commerce.
I think that the facts proved in the case at bar may be distinguished from the Lipson case. It appears that during the trouble the Butte branch communicated with officers of the Illinois corporation in Denver or Chicago; that shipments of cars arrived in Butte, and so great was the demand for the low priced commodities that trucks from customers went directly to the arriving car and deliveries were made directly from the car. Moreover, it appears that the products were sold speedily during the trouble period and there was nothing in the proof to lead one to believe that as to the commodities that came in during that time, received by the Butte branch, they stayed long enough to be commingled with other commodities if any such were in the branch house. It would be a wholly unrealistic inference to conclude from the facts established in this case that there was not a constant stream of commerce from without the state to customers within the city of Butte. Local 167, etc. v. United States, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed. 804.
Also on the question of damages I am unable to agree with the contention made that the plaintiff should be foreclosed because it is unable with certainty to establish the extent of its damages. Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L. Ed. 544, points a rule of reasonable and probable estimate that where from the nature of the case damages can not be measured with certainty by a fixed rule, the facts and circumstances tending to show the probable amount should be submitted to the jury to enable them to form an estimate. See, also, American Can Co. v. Ladoga Canning Co., 7 Cir., 44 F.2d 763; Rankin Co. v. Associated Bill Posters of United States, 2 Cir., 42 F.2d 152. Certainly the lowered prices prevailing in Butte during the period of the labor trouble led to a reduction in sales with consequent damages to the plaintiff. However, in the view taken of the defense of the statute of limitations, the complaint must be dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263123/ | 27 F.Supp. 93 (1939)
CRAY, McFAWN & CO.
v.
HEGARTY, CONROY & CO., Inc., et al.
District Court, S. D. New York.
April 5, 1939.
*94 *95 Holthusen & Pinkham, of New York City (Spencer Pinkham, William F. Purcell, and Charles E. Oberle, all of New York City, of counsel), for plaintiff.
Mack, McCauley, Spiegelberg & Gallagher, of New York City (George A. Spiegelberg, of New York City, of counsel), for defendant Hegarty, Conroy & Co., Inc.
Simpson, Thacher & Bartlett, of New York City (Louis Connick, of New York City, of counsel), for defendant Atlas Corporation.
WOOLSEY, District Judge.
My judgment in this cause is that the complaint should be dismissed as against both defendants with costs, which will include all taxable disbursements and allowances.
I. A. My subject matter jurisdiction herein is based on diversity of citizenship.
The plaintiff, Cray, McFawn & Company, is a corporation of Michigan, engaged in the business of the purchase and sale of corporate securities.
The defendant Hegarty, Conroy & Co., Inc., hereinafter often referred to as Hegarty, is a corporation of the State of New York, also engaged in that business.
The defendant Atlas Corporation, hereinafter often referred to as Atlas, is a corporation of the State of Delaware, with its principal business office in Jersey City, New Jersey, and is what is known as an investment trust.
B. This suit was originally brought in the Supreme Court of New York County, but was removed thence to this Court by Atlas on a petition claiming that there was diversity of citizenship between it, as a Delaware corporation, and the plaintiff, as a Michigan corporation, and that the suit as against it involved a controversy separable from the controversy between the plaintiff and Hegarty.
The circumstances surrounding the removal which were somewhat out of the ordinary are given in detail in the decision of the Circuit Court of Appeals for this Circuit approving the removal, on an appeal by the plaintiff from an injunction, which had been granted to Atlas by this Court to stop further proceedings in the State Court after the removal petition had been filed here. Cray, McFawn & Co. v. Hegarty, Conroy & Co., Inc., et al., 2 Cir., 85 F.2d 516.
C. My jurisdiction in this cause, being based on diversity of citizenship, comes within the ambit of the principles laid down in the decision of the United States Supreme Court in Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, and, because of the somewhat granulated jurisprudence which is the almost inevitable result of our federal system, and of the fact that this cause involves transactions in more than one state, some questions of conflict of laws are involved in it.
But this does not mean that any state law which may have to be considered must as the plaintiff seems to imply in its brief be proved as a fact in this court.
For the accepted rule almost since the beginning of our federal jurisprudence has been that the law of any State of the Union, whether statutory or the result of judicial decisions, is a matter of which the courts of the United States may take judicial notice without plea or proof, because the laws of the several states cannot in courts of the United States properly be regarded as foreign laws. Owings v. Hull, 9 Pet. 607, 625, 9 L.Ed. 246; Pennington v. Gibson, 16 How. 65, 81, 14 L.Ed. 847; United States v. Turner, 11 How. 663, 667, 13 L.Ed. 857; Covington Draw Bridge Co. v. Shepherd, 20 How. 227, 234, 15 L.Ed. 896; Cheever v. Wilson, 9 Wall. 108, 121, 19 L.Ed. 604; Brown v. Piper, 91 U.S. 37, 42, 23 L.Ed. 200; Elwood v. Flannigan, 104 U.S. 562, 568, 26 L.Ed. 842; Lamar v. Micou, 114 U.S. 218, 223, 58 S.Ct. 857, 29 L.Ed. 94; Roberts v. Reilly, 116 U.S. 80, 96, 6 S.Ct. 291, 29 L.Ed. 544; Martin v. Baltimore & Ohio R. Co., 151 U.S. 673, 678, 14 S.Ct. 533, 38 L.Ed. 311; Straton v. New, 283 U.S. 318, 328, 51 S.Ct. 465, 75 L. Ed. 1060.
*96 D. Here the forum is in New York State, although it is not in a court thereof.
Under the law of New York State a contract is made at the time and place where the final act necessary for its formation is done. Franklin Sugar Refining Company v. Lipowicz, 247 N.Y. 465, 160 N.E. 916, 59 A.L.R. 1414; George A. Ohl & Co. v. Standard Steel Sections, Inc., 179 App.Div. 637, 167 N.Y.S. 184; Howard v. Daly, 61 N.Y. 362, 19 Am.Rep. 285; Hyde v. Goodnow, 3 N.Y. 266; and cf. Restatement of the Law of Contracts, Section 74, and the Whiteside's New York Annotations thereto.
According to the law of New York State, the laws of the state wherein the contract was thus made govern the contract "in matters bearing upon the capacity of the parties to contract and upon the execution, the interpretation and the validity thereof." U. S. Mortgage & Trust Company v. Ruggles, 258 N.Y. 32, 38, 179 N.E. 250, 251, 79 A.L.R. 802. Cf. Restatement of Conflict of Laws, Section 311, and Cheatham's New York Annotations thereto.
This, I take it, means that under New York law whether a particular kind of contract constitutes a joint venture or not, depends on the law of the place in which it was made. Cf. Restatement of Conflict of Laws, Section 325, and Cheatham's New York Annotations thereto.
II. In addition to the parties hereto, there are three other dramatis personae involved herein who should be mentioned and described at the outset of this opinion, namely:
A. John C. Grier & Company, a Michigan corporation with offices in Detroit, of which the President, Mr. John C. Grier, Jr., was the nearest man, so far as the matters herein involved are concerned, to the President of the Mueller Brass Company, Mr. Oscar Mueller, who, together with the members of his family, had the control of the stock thereof. Prior to July 1935, Mr. Grier had purchased from the Mueller Brass Company and from Mr. Mueller upwards of 40,000 shares of the common stock of the Mueller Brass Company and was, not unnaturally, anxious to broaden the market therefor.
B. Peter, Lander & Company, a Michigan corporation, a selling organization corporately and in respect of ownership independent of John C. Grier & Company which was operated from the same suite of offices, and existed because Mr. Grier did not wish to have any selling done by his corporation, John C. Grier & Company.
C. Melady & Company, a firm of brokers with offices in New York and memberships in the New York Stock Exchange and in the Stock Exchanges of Chicago, Winnepeg and Toronto, which did business on commission in those Exchanges, and which was represented in the proceedings hereinafter briefly described by one of its partners, Richard J. Buck.
III. In view of the decision of the United States Supreme Court rendered April 25, 1938, on Equity Rule 70½, 28 U.S.C.A. following section 723, in Interstate Circuit, Inc. v. United States, 304 U. S. 55, 56, 57, 58 S.Ct. 768, 82 L.Ed. 1146, and under Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, it is now a work of supererogation to write a considered and detailed opinion on the facts in what used to be an equity cause and is now called a non-jury cause, for the place of the opinion must now be taken by formal findings of fact and conclusions of law, separately stated and numbered. Title 28 United States Code, Section 723, 28 U.S.C.A. § 723.
I shall, therefore, deal herein merely with certain general aspects of the facts, and with the conclusions of law which I draw in the cause, and leave it to counsel to submit, in accordance with my instructions at the end of this opinion, such findings of fact and conclusions of law, separately stated and numbered, as they may be advised.
IV. This is a cause in which the substantive juridical relations, out of which the equities invoked herein are claimed to have arisen, are wholly based on oral evidence of witnesses who testified before me at the trial.
As there is not any witness who may fairly be accused of consciously testifying falsely, what is involved here for me, as the trier of the facts, is to determine whether there are faults in emphasis on the facts made by, or mistakes in the memory of the witnesses for any of the parties.
As to the plaintiff's principal witnesses, Mr. Cray and Mr. Nauman, I have not any hesitation in saying that the effect of their testimony on me was to make me *97 feel that their alleged cause of action was nothing more than a figment. I think that they were throughout magnifying their office, and trying to turn what was only an opportunity given to the plaintiff by Mr. Hegarty through Mr. Grier, to share in any "finder's fee"[1], to which Mr. Grier might properly be entitled, into a joint venture which would cover all the bonds and stock of the Mueller Brass Company which Hegarty or his principalunnamed at the time of the alleged contract of joint venture of July 19, 1935might succeed in getting, in order that the plaintiff would have a basis for claiming an accounting to it from Hegarty, Conroy & Co., Inc., as a co-adventurer.
It may be said here also thatas is oftentime the caseby chewing the cud of what they conceived to be their grievances, Mr. Cray and Mr. Nauman have actually come,I think probably without being aware of it,so much to exaggerate those grievances in their own minds as to satisfy me, when the evidence is read in connection with the evidence of the defendants' witnesses, that they have greatly distorted in their memories the situation in regard to the Mueller Brass Company deal which existed in June, July, August and September 1935, the crucial period herein.
On the other hand, it seemed to me that the quality of all the principal witnesses for the defendants was unexceptionable. Indeed, Mr. Rathvon, Mr. Hegarty, Mr. Buck and Mr. Grier are among the best witnesses whom I have ever heard give evidence before me.
Because the essence of the cause turned wholly on oral evidence, I watched and listened to all the witnesses on both sides with especial care, and have since carefully studied it, with the result that I have no hesitation whatever in saying that the truth stands on the side of the defendants in respect of all the contested facts herein, and of all the questions of emphasis to be given to such of the facts as are not contested.
Furthermore, it seems to me, that, in their cupidity, Mr. Cray and Mr. Nauman forgot that the persons who do almost all the work in any deal,as did Atlas and Hegarty hereinand furnish all the money thereforas did Atlas herein,are, obviously, the parties thereto who become entitled to almost all the profits arising therefrom.
The plaintiff did not risk any money, and did not do anything of importance in connection with the joint venture which Mr. Cray claims existed, nor did it make any commitments in connection therewith. It merely watched and waited until success was certain, and then came confidently in and claimed as its share 20% of the profits of the deal. "Heads I win and tails you lose" cannot, I fancy, be the basis of an equity.
I think there is not anything to be criticised in the position of the defendants in this matter. Together they carried on all the negotiations that led to the fruition of the deal, and Atlas furnished all the money $1,200,000necessary to achieve the objectives thereof. Having paid the piper Atlas had the right to call the tune.
When the deal was closed, Hegarty received as its remuneration, in the nature of a finder's fee, from Atlas, a chance to take up 40,000 shares of Mueller Brass Company common stock at what Atlas had paid therefor, and to make a public offering thereof.
It shared this finder's fee most generously. Grier had nominated Peter, Lander & Company, a corporation associated, as *98 above noted, with his office, Melady & Company and the plaintiff to receive the share of the finder's fee to which he might be entitled. When it was agreed by Hegarty and Atlas that Hegarty should get as a finder's fee 40,000 shares of Mueller Brass Company common stock, he offered a participation[2] in 20,000 shares, or 50% thereof, to Grier's three nominees as follows:
To Peter, Lander & Company, 25%, or 10,000 shares; to Melady & Company, 12½%, or 5,000 shares; to the plaintiff, 12½%, or 5,000 shares.
Peter, Lander & Company and Melady & Company accepted with appreciation of Hegarty's generosity the participation offered to them. The plaintiff refused the participation offered to it, although, in my opinion, the offer was much in excess of any possible quantum meruitsee footnote[2] suprato which it was entitled for the work it had done or its position in the deal.
Then, after some futile attempts to secure a larger participation in the finder's fee than what had generously been offered to it, the plaintiff brought this suit for an accounting against Hegarty and Atlas.
V. A sufficient statement of the facts for the purposes of this memorandum is as follows:
A. Mr. Grier's Detroit office had been selling stock of the Mueller Brass Company, either owned or controlled by him, before the plaintiff had, so far as this record shows, any connection with any sales thereof.
Mr. Buck, of Melady & Company, had heard of the stock through a Mr. Eugene Stevenson, the brother of a special friend of Mr. Grier's, who had been working for a firm named Robinson & Company, and, subsequently, went to work for Melady & Company.
Mr. Grier, finding out that the plaintiff was the correspondent in Detroit of Melady & Company, suggested that Mr. Buck should do his buying of Mueller Brass Company stock through the plaintiff. The plaintiff did not do any New York trading in this stock until Mr. Buck began to buy from it under this arrangement suggested by Mr. Grier.
It is perfectly clear, therefore, that the only reason why the plaintiff happened to be in position to buy and sell the Mueller Brass Company stock, owned or controlled by Mr. Grier, was because of Mr. Grier's interest in Mr. Stevenson who was working for Melady & Company, and because it was agreed between Mr. Grier and Mr. Buck that Melady & Company should use the plaintiff in connection with the stock which Mr. Grier desired to continue to distribute in New York.
The plaintiff was, therefore, from the beginning only at the periphery of the situation here involved, and, though it has evinced strong centripetal desires, it has never succeeded in improving its position therein.
Hegarty, Conroy & Co., Inc., became interested in the Mueller Brass Company stock through a man named Campbell who had office space with Melady & Company, and after looking into the matter, and placing some shares through their clients, they began to develop the idea that they might purchase a large block of the stock from Mr. Mueller or the Mueller Brass Company, and also arrange some way of retiring the bonds thereof in order to escape from the terms of an extension plan agreed to by the bondholders on November 30, 1933, which gave the common stock a low ceiling because payment of any dividends thereon before April 1, 1937, was prevented except in certain contingencies not necessary to set forth here in detail.[3]
Beginning as early as June 10, 1935, and *99 up till the meeting of July 19, 1935, hereinafter dealt with, there were several conversations had between Hegarty, Buck and Grier, looking to the retirement of the bonds of the Mueller Brass Company and the purchase of stock from it or from Mr. Mueller along the lines of the idea which Hegarty had developed.
B. After long reflection on this very interesting state of facts, it seems to me that it at once comes into focus and the plaintiff's exact position in the penumbra thereof is shown beyond peradventure, if the following technique of approach thereto be adopted:
1. Either on Monday, July 8th, or Tuesday, July 9, 1935, Mr. Hegarty, having been unable to secure banking support for his plan to get a large block of the Mueller Brass Company common stock for distribution and to arrange a refinancing of that Company, decided he would go to the Atlas Corporation, whose then vice-president, Mr. Rathvon, was a friend of long standing. When he saw Mr. Rathvon at the principal business office of the Atlas Corporation in Jersey City, New Jersey, Mr. Hegarty described the details of the situation in Mueller Brass Company to Mr. Rathvon, gave him its then recent financial history and managed to arouse in him some interest therein.
Mr. Rathvon, however, explained to Mr. Hegarty that he would only be interested in investment, and would not, as the phrase is, "bank the deal"[4]. This Mr. Hegarty fully understood, for he knew that Atlas did not underwrite and publicly distribute stock or advance funds for that type of business; but only went into any deal if it bought the deal for itself.
Mr. Rathvon said he would look up the Mueller Brass Company, and Mr. Hegarty accordingly kept in touch with Atlas, having a further conversation with Mr. Rathvon a little later, perhaps about the 10th or 11th of July, and then he was told that he would be advised after the weekend of July 14th whether Atlas might be seriously interested.
2. So, on Monday, July 15th, or Tuesday, July 16th, Mr. Hegarty went over to Jersey City and had a further discussion with Mr. Rathvon who said that, if further investigation satisfied Atlas, it would be interested in buying into the Mueller Brass Company, and, if it went into the deal, it would put up all the money that would be involved in the transaction; but, if there was a public offering of securities which Atlas did not purchase for investment, it would give Hegarty a share in such public offering with the understanding that Hegarty could take the securities down at the price for which Atlas bought them, and if Hegarty did not succeed in selling them Atlas would take them back off his hands without loss.
Neither Mr. Hegarty nor Mr. Rathvon knew whether there would be any public offering, or, if so, how many shares there would be in that offering.
The whole point of the agreement between them was that Mr. Hegarty was to start negotiations for Atlas in Port Huron, Michigan, with the Mueller Brass Company, and that Atlas guaranteed his firm against any loss.
This general summary of the agreement between Mr. Rathvon and Mr. Hegarty, which was arrived at in Jersey City, and is governed by New Jersey law, Cases 27 F.Supp. 95, 96, is entirely confirmed in all its essentials by Mr. Rathvon and constituted under New Jersey law, a joint venture. For under New Jersey law the sharing of profits is and the sharing of losses is not an essential part of a joint venture, and an approximation of a partnership ad hoc is not required, although, of course, such a relationship would be recognized as a joint venture. Warwick v. Stockton, 55 N.J.Eq. 61, 65, 66, 36 A. 488; Jackson v. Hooper, 76 N.J.Eq. 185, 197, 198, 74 A. 130.
It seems to me that, under New Jersey law, the juridical concept, commonly called a joint venture, is graduated like a spectrum from a partnership ad hoc through various forms of fiduciary business relationships into an agency with contingent remuneration to the agent, as was the case here. Indeed, it matters little what the precise definition of a joint venture may be for the fiduciary relationship always arises *100 from it, as it does from an agency, and the remedial sequelae are of the same kind.
Herein, in fact, Atlas felt throughout that it was in the position of principal, that it would only act as such in the matter, and that Hegarty was its agent therein.
Indeed, Mr. Rathvon said that "Hegarty, Conroy could have only one or two possible relations in this deal if we became the principal; one, they could be entitled to what is generally terms as a finder's fee for bringing them (that is the Mueller Brass Company) to us, or they could be associated in some way to the deal that fitted with our requirements in the matter, and the only way they could become associated would be in relation to a public distribution of the stock."
Mr. Hegarty having truly assured Mr. Rathvon that he was in a position to deal with Atlas on that basis, he was given instructions to go ahead, and the statistical department of Atlas started getting further data on the Mueller Brass Company.
Mr. Rathvon agreed that if Hegarty could get an option from Mr. Mueller and the Mueller Brass Company on a block of its stock, Atlas would spend, at its own risk, the necessary money to make a thorough investigation.
3. Then Mr. Conroy went to Detroit, and, as a result of his negotiations, the agreement of July 26, 1935, was made with Mr. O. B. Mueller at Port Huron, Michigan.
When Mr. Rathvon saw this agreement he was not satisfied with it because what he had wanted to get was an option which would give him a chance to make a thorough investigation of the Mueller Brass Company. He regarded the agreement of July 26th as too much in the nature of a commitment which did not give enough "outs"[5] to Atlas.
4. Consequently, Mr. Rathvon went to Detroit himself on July 29th or 30th, and was there for two days during which time he negotiated the contract of July 31, 1935, with Mr. Mueller. This contract took the form of a letter from Hegarty, Conroy & Co., Inc., to Mr. Mueller, approved by him, and contained the reassuring "outs" which naturally are in a banker's eyes among the most valued terms in any contract.
Thereafter the investigation of the Mueller Brass Company proceeded more intensively through engineers, patent lawyers and accountants, and finally it was found that its recent earning statement was not satisfactory.
Mueller and Mueller Brass Company agreed that a specific "out" was thus established.
5. Negotiations then proceeded on a new basis, and, eventually, two contracts were entered into on August 20, 1935, at Port Huron, Michigan, one between Hegarty, Conroy & Co., Inc.acting, as I find, as agent for Atlasand the Mueller Brass Company, and the other between Hegarty, Conroy & Co., Inc.acting, as I find, as agent for Atlas and O. B. Mueller. These contracts, each of which contained appropriate "outs", may for present purposes be briefly summarized as follows:
The contract with the Mueller Brass Company involved the purchase by Hegarty (acting, as I find, as agent for Atlas) of the outstanding bonds of the Company for $630,000 and a provision for the substitution therefor of bonds convertible into stock.
The other contract provided (1) for the purchase by Hegarty (acting, as I find, as agent for Atlas) from Mr. Mueller of 40,000 shares of common stock at $14.25 per share, and (2) for certain options for the purchase of additional shares within a period of 120 days from the date on which the transfer of the 40,000 shares occurred.
The idea of having the Mueller Brass Company buy in their then outstanding bonds and substitute for them convertible bonds for the same principal amount, instead of having it issue stock and buy in its bonds, was the ingenious suggestion of Mr. Rathvon which he thought might be compensatory to Atlas in view of the somewhat disappointing earnings statement of the Mueller Brass Company, because it would give Atlas a call for the stock thereof which was to be purchased, plus ad interim security.
After it had been decided that the contract of July 26, 1935, was not satisfactory and would have to be re-negotiated, Mr. Rathvon had a conversation with Mr. Hegarty referring to the previous arrangement *101 between them, in which Mr. Rathvon said that, if he could negotiate a revision of the contract along lines which would satisfy him, Atlas would proceed, and would take all commitments involved in the deal, and that Hegarty would be looked after through a public offering, if one could be made, or, if not, that the deal would be handled in such a way that Hegarty would be allowed a reasonable profit for his services in the matter.
6. It is obvious that, as a result of the contract which had been made in Jersey City on July 15th or 16th by Mr. Hegarty and Mr. Rathvon, whether the relation thereby created was a joint venture cf. cases above cited or merely an agency by which Hegarty was constituted an agent of Atlas for the purpose of negotiating a deal with the Mueller Brass Company, Hegarty would be in the eyes of equity precluded from making any contract with Mueller or the Mueller Brass Company which would exclude Atlas from such interest therein as it might wish to make. E. g. Irving Trust Company v. Deutsch et al., 2 Cir., 73 F.2d 121, 124.
Consequently, on July 15 or 16, 1935, a fiduciary relationship arose between Hegarty and Atlas in which Hegarty was the fiduciary and Atlas was the beneficiary, and by which there was created what I might call an equity of preclusion, preventing Hegarty from acting in any way in derogation of the rights of Atlas in the objective before them both.
7. That was the legal situation as between Atlas and Hegarty when we come to the much discussed meeting in New York City of July 19, 1935, out of which the plaintiff claimed a joint venture arose between Grier & Company, Melady & Company, Hegarty, Conroy & Co., Inc., and the plaintiff Cray, McFawn & Company.
When Mr. Hegarty entered the July 19th meeting, all that he could offer to the other parties present without trenching on his fiduciary duty to Atlas was a share in any finder's fee or stock "in the nature of a finder's fee" which he might receive from Atlas.
He had not any authority, express or implied, to enter on behalf of Atlas into any contract of joint venture, or to deal in derogation of its rights in any other way with the persons present at the July 19th meeting.
Mr. Cray happened to be present at that meeting because being in New York City on other business he dropped in to see Mr. Buck and was asked by him to come to the meeting.
Mr. Hegarty had not met Mr. Cray or known of the plaintiff before the meeting of July 19th. This is important because the dilectus personarum which is at the core of all joint ventures, just as it is at the core of all partnerships, cannot be easily presumed among new acquaintances, especially in respect of such a large undertaking as the plaintiff now claims to have been involved.
I find that Mr. Hegarty did tell the other persons present at the July 19th meeting that he alone of those present was taking any commitments as to Mueller Brass Company stock, that any participation they got must be "in the nature of a finder's fee" secured out of a public offering, if any, of such stock, and that no one knew what form the deal would take or how much Mueller Brass Company stock, if any, would be offered to the public.
Mr. Hegarty gave some testimony on direct examination which much impressed me and which I think correctly summarized the meeting of July 19th.
He thus described the termination of the meeting:
"Q. Was anything else said? A. I ended up by saying that after all they had no commitment, nothing to risk in the deal, that whatever they got would be like finding it in the middle of the street, so on that general note and after again repeating that no possible split could be made because nobody knew what was going to be split, we got ready to get up; and finally Mr. Cray, who tried to get us to reduce it to something more specific, after we were getting up to get out, said `Wouldn't something like 40, 20, 20, 20 be about right, Hegarty, Conroy getting about twice as much as anybody else, because they were buying the bargain?'
"Q. And what did you say to that, if anything? A. I had already answered the question just five minutes previous to that by saying nobody could make any agreement or any contract, they didn't know what we had to split up.
"Q. Mr. Hegarty, did you or did you not affirmatively assent to the suggestion which you say was the last thing mentioned at this meeting when Mr. Cray suggested *102 this 40, 20, 20, 20 division? A. Definitely not."
I believe this evidence.
I find that the parties present at the July 19th meeting were at arm's length when they entered that meeting, and I find they were still at arm's length when they left it and went their several ways.
Consequently, no joint venture with its resulting fiduciary relationships between the parties thereto could have arisen out of that meeting.
8. Furthermore, I find that there was not anything in the trading in the stock between the meeting of July 19th and the contracts of August 20th which finally crystallized the deal which by itself pointed to any fiduciary relationships between the parties to the meeting of July 19th.
Indeed, on this I understand plaintiff's counsel finally agreed with me at the argument, placing his whole case on the July 19th meeting.
VI. What happened at the July 19th meeting in New York City could not, therefore, in my opinion, have resulted in a joint venture under the law of New York State which was the law applicable to it. For a joint venture under that law cannot be left with so many loose ends.
Under Samuel v. Bastress, 1935, 267 N. Y. 279, 196 N.E. 57, the Court of Appeals held that the terms of a joint venture should be definitely settled. There should be an agreement either express or implied as to the sharing of losses as well as profits, and, semble, equality of such sharing is not to be presumed. Also each joint venturer must have a right to share control or direction in the negotiations of the venture. In effect, a partnership ad hoc must be established.
The case just cited may fairly be described as an italicised case on the much mooted subject of joint ventures because the trial court had found that there was not a joint venture, but had been reversed by the Appellate Division for the Second Department, which had made a new set of findings of its own, but was in its turn reversed by the Court of Appeals.
The situation resulting from the July 19th meeting may be summarized by saying that it was known to those present that Hegarty alone was to make any commitments, i. e., to undertake any obligation with respect to the purchase of the Mueller Brass Company stock; that there was not any agreement made as to the price to be paid for that stock, and that no one present except Mr. Buck who had correctly guessed it knew about the source of the money available for the purchase thereof.
All that was known was that Hegarty had procured someone, who, if satisfied with the Mueller Brass Company's situation, would put up the money; but no one present knew what part of the deal the person putting up the money was going to take, and no one except Hegarty, who had already, as above noted, been deputized by Atlas to treat in its behalf with Mr. Mueller and the Mueller Brass Company, was to have any part in negotiating the deal.
It is fair again to say that, as a result of the long trial in this cause, it finally became common ground that the only source of a fiduciary relationship would be the meeting of July 19th, and as I find that a fiduciary relationship did not arise as a result of that meeting, the plaintiff has not any right to an accounting from Hegarty, Conroy & Co., Inc., herein, and, of course, not against the Atlas Corporation for it was in the position of any one who determines to buy something and is first in the field in pursuing his objective.
VII. Counsel for the two defendants must collaborate in preparing, and must submit to me through the Clerk's office, findings of fact and conclusions of law in pursuance of Rule 52(a) and in accordance with this opinion.
They must give five days' notice thereof to counsel for the plaintiff.
Counsel for the plaintiff may on the return day of such notice submit to me criticisms of the findings of fact by the defendants' counsel, if he be so advised.
As under Rule 52(a) only the findings of fact and conclusions of law which I sign will be filed as part of the record herein, I suggest this course for the plaintiff's counsel because counter findings will not avail him anything. He must take his objections, if any, to my findings, on appeal by way of appropriate assignments of error.
VIII. After the findings of fact and conclusions of law are signed by me, a decree dismissing the complaint and carrying costs, providing for recovery by each of the defendants of their costs, and of their taxable disbursements and allowances, may be submitted to me through the Clerk's office on the usual notice.
NOTES
[1] A "finder's fee" is a sum of money that is paid by a banker to one who brings to him a deal out of which he makes money. E. g. Brown v. Leach, 189 App.Div. 158, 178 N.Y.S. 319, appeal dismissed 228 N.Y. 612, 127 N.E. 909.
As the record herein shows, a "finder's fee" is a kind of commission as to which there is no percentage fixed by custom. In the absence of any agreement thereon, the percentage allowed to the finder depends on how much work is done by him, and what his position is in the deal vis-a-vis the persons with whom the banker is negotiating it.
In "Cases and Materials on Corporation Finance" by Adolf A. Berle, Jr., it is said at page 602:
"The finder's commission is a fruitful subject of dispute. It is often not agreed on in advance, though good practice would suggest this; frequently the finder himself has to split his commission with one or more individuals who have assisted him; and his compensation is not finally determined until the transaction is agreed upon and any profit (which may be cash, stock, stock purchase warrants, or any combination of the three) is determined; and its distribution is finally determined."
[2] When a participation in a deal is thus offered to a person, it means that he is given the chance to have the stock at cost plus his pro rata share of the expenses, to which the offerer has been put in the deal. Here this meant 12½% of Hegarty's expenses would fall on the plaintiff, if, in the hope of making an almost certain profit, it accepted his offer.
[3] The terms of this extension plan may be conveniently summarized thus:
The trust indenture of the new extended bonds provided that one-third of all net income, after all taxes, would be applied to retirement of bonds in order of maturities and in numerical order, and that prior to April 1, 1937 no dividends might be declared or paid on any class of stock unless all bonds which would have been matured under the original schedule of maturities should have been retired out of earnings or by the sale of capital stock, the total amount being $41,300, and subsequent to April, 1937 no dividends were to be paid unless $80,000 principal amount of bonds should have been retired annually. In no case could dividends be paid which would reduce net quick assets below $750,000.
[4] Shortly stated, "banking" a deal, as the record here shows, customarily means making to a person who wishes to consummate a deal, a loan of money on collateral for a consideration. The consideration for the loan may be interest, a fee, or perhaps a part of the securities or property involved in the deal, or a combination of each or all. The result of "banking" a deal, therefore, is that the lender is in the position of a secured creditor, and not either of a participant or of an investor therein.
[5] "Outs", in banking parlance, are conditions or warranties, failure to comply with which by the prospect give the banker a right to escape from a contract and call negotiations off. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263131/ | 31 Cal.App.4th 1185 (1995)
37 Cal. Rptr.2d 524
THE PEOPLE, Plaintiff and Respondent,
v.
VAL LAMAR SMITH, Defendant and Appellant.
Docket No. B084200.
Court of Appeals of California, Second District, Division One.
January 26, 1995.
*1187 COUNSEL
Marcia C. Levine, 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, William T. Harter and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
VOGEL (Miriam A.), J.
We are asked in this case to extend the "good faith" exception to the Fourth Amendment's exclusionary rule to salvage a confession obtained in violation of the Fifth Amendment. We decline.
BACKGROUND
James Powell was at Yvonne Lane's apartment when Appellant Val Lamar Smith (who is deaf) and four other men ("Howard," "Vincent" and two others who remained nameless) arrived. Smith and Powell argued. Vincent handed a gun to Smith, who fired three shots at an unarmed Powell (killing him), then gave the gun back to Vincent and left the apartment.
Smith's wallet was found at the scene and he was arrested. Through a sign language interpreter (Cheryl Fernandez), Smith was told he was being questioned about "the incident that happened, the shooting," and was advised of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 *1188 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].) This is what happened next (the interview was videotaped and audiotaped):
DETECTIVE FISK: "Keeping these rights in mind, do you wish to talk to me about this?"
SMITH (through Fernandez): "I don't really. I prefer to go to court and see what happens. In. In the case. In the case. In the case? What I mean ... is if you sue me, or not sue me, but to have a ... a lawyer, because."[1] (Italics added.)
DETECTIVE FISK: "OK. And do I understand that he does not want to discuss this at all?"
FERNANDEZ (for herself, not for Smith): "Wait! Wait! Slow down! Excuse me, I have to explain something. Please wait until I finish, because if not. The interpreter is talking right now. If you don't wait until I finish then ... it will change the meaning of what they are saying. OK? Go ahead."
DETECTIVE FISK: "Do I understand him correctly in that he doesn't want to explain to us what happened?"
SMITH (through Fernandez): "Oh! Oh, I get it! OK, yeah. I'll go ahead and talk."
FERNANDEZ (for herself, not for Smith): "Excuse me the interpreter wants to say something. Can you please sign, and take your hands off me? And you know, I don't know, but sign real clear, OK? OK."
DETECTIVE FISK: "Did I misunderstand at first that?"
SMITH (through Fernandez): "Yes. Yeah, now I understand clearly. OK, let's go ahead."
Smith first told Detective Fisk that one of the other men had fought with Powell and shot him. After Detective Fisk said he knew Smith was the *1189 shooter, Smith said Howard had handed guns to Smith and Vincent, that he (Smith) had shot Powell twice in the leg, but that it was Vincent who shot Powell in the head and killed him.
A complaint was filed charging Smith with Powell's murder. At Smith's preliminary hearing, Yvonne Lane (who is also deaf) testified that Smith was the shooter but conceded on cross-examination that she had "mistakenly" told an investigator and at least one friend that Vincent was the shooter. Based on Lane's testimony and Smith's statements to the police, Smith was held to answer and an information was filed charging him with first degree murder (with an armed principal enhancement allegation).
Smith moved to suppress his statements to the police. After a lengthy hearing, the trial court found that Smith understood his rights and unequivocally invoked them by requesting a lawyer but that Detective Fisk's further questions to clarify Smith's response were pursued in good faith and that, therefore, Smith's statements should not be suppressed. Accordingly, the motion was denied. Smith then submitted the question of his guilt to the court on the transcript of the preliminary hearing and, pursuant to a negotiated disposition, the use enhancement was stricken and he was convicted of second degree murder. Smith appeals.
DISCUSSION
Smith contends the police officer's good faith is immaterial in light of the trial court's finding that Smith had unequivocally invoked his right to counsel. We agree.
I.
Sign language experts testified at the hearing to determine the admissibility of Smith's statements.[2] They explained that there are several different types of sign language, that a single sign may have multiple meanings and that, conversely, a single word or concept may be signed in various ways. They explained the need for specialized training in the legal field and the various problems encountered with minimally educated people and cross-cultural interpretation. Not surprisingly, the People's experts opined that Fernandez's interpretation at Smith's interview was accurate, the defense experts that it was not.
*1190 The trial court adopted the defense expert's opinion, found that Smith "understood enough of the Miranda [warnings] to understand what he was doing," that Fernandez did not understand Smith's response and thus interpreted it incorrectly, and that Smith did not waive his rights because he "said he wanted a lawyer right here, right now ..., that it was unequivocal and that he wanted a lawyer then and there." But the court did not stop there. It also found that Detective Fisk's "clarifying questions" and Smith's responses led the detective to believe Smith "had waived his rights and ... that it was done properly. I find that the detectives did nothing wrong in the way they handled the case." For this reason, the court made "the call that... the statement should not be suppressed."
II.
(1) We reject the People's suggestion that the trial court's factual findings are not supported by substantial evidence. (People v. Clair (1992) 2 Cal.4th 629, 678 [7 Cal. Rptr.2d 564, 828 P.2d 705]; People v. Mickey (1991) 54 Cal.3d 612, 649 [286 Cal. Rptr. 801, 818 P.2d 84] [although we review legal issues de novo, we accept the trial court's factual findings if they are supported by substantial evidence].) Dr. Lawrence Fleischer, a professor of special education and sign language interpretation, testified that Smith's first response to Detective Fisk was an unequivocal invocation of his right to counsel.[3] No more was required. (Evid. Code, § 411; People v. Allen (1985) 165 Cal. App.3d 616, 623 [211 Cal. Rptr. 837] [the testimony of one witness is sufficient to constitute substantial evidence].)[4]
We also reject the People's contention that Smith's response, as interpreted by Fernandez, was sufficiently ambiguous to justify Detective Fisk's further inquiry to determine whether Smith was, in fact, asserting his right to *1191 counsel. Although clarifying questions are permitted when it is unclear whether the defendant has invoked his rights (Davis v. U.S. (1994) 512 U.S. ___ [129 L.Ed.2d 362, 373, 114 S.Ct. 2350, 2357] ["we are unwilling to create a ... layer of prophylaxis to prevent police questioning when the suspect might want a lawyer [and u]nless the suspect actually requests an attorney, questioning may continue"]; People v. Pack, supra, 201 Cal. App.3d at pp. 690-691; In re Brian W. (1981) 125 Cal. App.3d 590, 599-600 [178 Cal. Rptr. 159]; People v. Turnage (1975) 45 Cal. App.3d 201, 210-211 [119 Cal. Rptr. 237]), the trial court's factual determination that Smith unequivocally invoked his right to counsel (and the undisputed fact that he unequivocally invoked his right to remain silent) disposes of the suggestion that there existed any ambiguity and, necessarily, thus eliminates the justification for further questioning. (Smith v. Illinois (1984) 469 U.S. 91, 99 [83 L.Ed.2d 488, 496, 105 S.Ct. 490] [no authority, and no logic, permits the interrogator to proceed on his own terms and as if the defendant had requested nothing, in the hope that the defendant might be induced to say something casting retrospective doubt on his initial statement that he did not wish to speak]; People v. Carey (1986) 183 Cal. App.3d 99, 102-104 [227 Cal. Rptr. 813]; People v. Russo, supra, 148 Cal. App.3d at p. 1177.)
Accordingly, Smith's assertion of his rights should have put an immediate end to the interview. As the Supreme Court explained in Miranda v. Arizona, supra, 384 U.S. at pages 473-474 [16 L.Ed.2d at page 723], when the defendant "indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. [Fn. omitted.] At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." (See also Edwards v. Arizona (1981) 451 U.S. 477, 484-486 [68 L.Ed.2d 378, 385-387, 101 S.Ct. 1880]; People v. Carey, supra, 183 Cal. App.3d at p. 103 [the "clarification rule" requires ambiguity as a precedent to further inquiry].)
III.
The continuing validity of Miranda is not questioned in this case. (2) Rather, the issue is whether the trial court was entitled to dilute the rule by applying the "good faith" exception developed in Fourth Amendment cases to this Fifth Amendment violation.
*1192 A.
Otherwise admissible evidence, if obtained in violation of a defendant's Fourth Amendment rights, is generally made inadmissible by the exclusionary rules adopted in People v. Cahan (1955) 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513] and Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933]. In United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405], however, the Supreme Court adopted a "good faith" exception to the exclusionary rule by holding that evidence obtained in objectively reasonable reliance on a defective search warrant is admissible. (See also People v. Helmquist (1984) 161 Cal. App.3d 609 [207 Cal. Rptr. 718].) As Leon reminds us, the exclusionary rule is designed to deter police misconduct, not judicial error. (United States v. Leon, supra, 468 U.S. at p. 916 [82 L.Ed.2d at p. 694].) Assuming the rule accomplishes its goal and does in fact deter some police misconduct, there is nothing to deter when a police officer acts in objective good faith reliance on a search warrant issued by a judge or magistrate. (Id. at pp. 919-920 [82 L.Ed.2d at pp. 696-697].) "Penalizing the officer for the magistrate's error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations." (Id. at p. 921 [82 L.Ed.2d at p. 697].)
B.
Similarly, statements otherwise admissible as admissions, if obtained in violation of a defendant's Miranda rights, may not be used against him at a criminal trial. (Oregon v. Elstad (1985) 470 U.S. 298, 307 [84 L.Ed.2d 222, 231, 105 S.Ct. 1285] ["unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda"].) This however, is where the similarity ends.
As noted above, the Fourth Amendment's exclusionary rules are designed to deter police misconduct. In contrast, evidence obtained in violation of the Fifth Amendment rights protected by Miranda is excluded to ensure protection of the suspect's right against compulsory self-incrimination. (New York v. Quarles (1984) 467 U.S. 649, 654 [81 L.Ed.2d 550, 555-556, 104 S.Ct. 2626].) Stated otherwise, the "purpose of the Miranda warnings... is to dissipate the compulsion inherent in custodial interrogation and, in so doing, guard against abridgment of the suspect's Fifth Amendment rights." (Moran v. Burbine (1986) 475 U.S. 412, 424-425 [89 L.Ed.2d 410, 422-423, 106 S.Ct. 1135].)
*1193 C.
This fundamental difference in the theoretical underpinnings of the Fourth and Fifth Amendment exclusionary rules persuades against application of the "good faith" exception in Fifth Amendments cases. This is not a novel distinction. For example, although a suspect cannot waive his Fifth Amendment rights unless he has been told what those rights are (Miranda v. Arizona, supra, 384 U.S. at p. 469 [16 L.Ed.2d at pp. 720-721]), he can waive his Fourth Amendment rights unencumbered by any awareness that he has the right to do otherwise. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 241 [36 L.Ed.2d 854, 871, 93 S.Ct. 2041] [since there "is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment," a suspect may waive his Fourth Amendment rights by consenting to a search without knowing he has the right to refuse].) For another example, the prime consideration in determining whether a new rule affecting Fourth Amendment rights will be applied retroactively is its deterrent effect on police misconduct; conversely, the retroactivity of rules affecting Fifth Amendment rights turns on the guaranty of "full effectuation of the privilege against self incrimination, the mainstay of our adversary system of criminal justice." (Johnson v. New Jersey (1966) 384 U.S. 719, 729 [16 L.Ed.2d 882, 890, 86 S.Ct. 1772].)[5]
D.
For these reasons, the trial court's finding that Smith had unequivocally invoked his Fifth Amendment rights is dispositive of Smith's motion to suppress and it is immaterial whether Detective Fisk was acting in good faith when he pursued the matter further. It follows that the motion to suppress should have been granted and that the trial court's denial of that motion was error. It also follows ineluctably, on the facts of this case and in light of the negotiated disposition, that the error was prejudicial. (Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711, 87 S.Ct. 824, 24 A.L.R.3d 1065]; People v. Russo, supra, 148 Cal. App.3d at p. 1178.) Without Smith's *1194 statements to the police, the only evidence identifying him as the shooter is Yvonne Lane's testimony at the preliminary hearing, which was impeached. Smith's conviction is based upon his submission to the trial court on the transcript of the preliminary hearing and the trial court made it clear that it relied in substantial part on Smith's statements in arriving at its judgment. Under these circumstances, there is no way to say the error was harmless.
DISPOSITION
The judgment is reversed and the cause is remanded to the trial court with directions to grant Smith's motion to suppress and to set the case for trial.
Ortega, Acting P.J., and Masterson, J., concurred.
A petition for a rehearing was denied February 16, 1995, and on February 27, 1995, the opinion was modified to read as printed above. Appellant's petition for review by the Supreme Court was denied April 27, 1995.
NOTES
[1] There is no dispute about Smith's first two statements (the portion emphasized in the text) but Fernandez later testified that Smith had not signed that he wanted "a lawyer, because" but rather that he wanted "a lawyer in court."
[2] The experts all listened to the audiotape or watched the videotape or both. All of them read the transcript of the audiotape. The defense expert, who is deaf and who testified through an interpreter, watched the videotape but obviously was unable to listen to the audiotape.
[3] The trial court's findings were supported not only by Dr. Fleischer's testimony but also by (1) Fernandez's admission that she had difficulty understanding Smith's response to Detective Fisk's first question and (2) the testimony of the People's expert, Marcella Meyer, that Fernandez "had some problems" interpreting the interview.
[4] At the hearing to determine the admissibility of Smith's statements to the police, the only disputed fact was whether Smith had invoked his right to counsel. As noted in the text, Dr. Fleischer testified that he did so. For reasons we do not understand, however, the parties have simply ignored the fact that, without any ambiguity at all, Smith clearly invoked his right to remain silent. Detective Fisk asked, "[D]o you wish to talk to me about this?" Smith answered: "I don't really. I prefer to go to court and see what happens." (Italics added.) No more was required. (People v. Pack (1988) 201 Cal. App.3d 679, 690 [248 Cal. Rptr. 240] [no particular form of words or conduct is necessary to invoke Fifth Amendment privileges]; People v. Russo (1983) 148 Cal. App.3d 1172, 1176 [196 Cal. Rptr. 466] [a suspect may invoke his right to silence by any words or conduct reasonably inconsistent with a present willingness to discuss his case freely and completely].)
[5] For yet another example, evidence obtained in violation of the Fourth Amendment which, in turn, discloses the existence of other evidence may be admissible if it is sufficiently attenuated from the fruit of the poisonous tree. (Brown v. Illinois (1975) 422 U.S. 590, 602 [45 L.Ed.2d 416, 426, 95 S.Ct. 2254]; Taylor v. Alabama (1982) 457 U.S. 687, 690 [73 L.Ed.2d 314, 319, 102 S.Ct. 2664]; Oregon v. Elstad, supra, 470 U.S. at pp. 305-306 [84 L.Ed.2d at pp. 229-230].) But a Miranda violation, which creates "a presumption of compulsion," make otherwise voluntary statements inadmissible because "Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm." (Oregon v. Elstad, supra, 470 U.S. at p. 307 [84 L.Ed.2d at p. 231]; see also People v. Briggs (Colo. 1985) 709 P.2d 911, 918-919 [709 P.2d 911].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263394/ | 142 F.Supp. 264 (1956)
Helen T. TURNER, Adm'x Estate of Gordon L. Turner
v.
WILSON LINE OF MASSACHUSETTS, Inc.
Civ. A. No. 55-896.
United States District Court D. Massachusetts.
May 17, 1956.
*265 Leo P. Doherty, Boston, Mass., for plaintiff.
Thomas H. Walsh, and John M. Geaghan, Boston, Mass., for defendant.
ALDRICH, District Judge.
Defendant moves to strike certain portions of the complaint in this civil action on the ground that no valid claim is set out. The complaint is a hybrid product of questionable ancestry, but because it could easily be changed and enlarged I accepted certain additional allegations made by plaintiff's counsel during argument, referred to and delimited in this opinion. Correspondingly, I treat defendant's motion as, in effect, a motion for summary judgment.
In June, 1955, the coastwise steamer Pilgrim Belle grounded on a bar in Boston Harbor and took water. The McKie Lighter Co. undertook salvaging operations, including pumping her out. Plaintiff's intestate, Turner, an employee of *266 McKie,[1] came aboard to assist with the bailing as supervisor of the pumps. The master of the vessel remained on board. The pump was operated by a gasoline motor belonging to McKie for 14 hours. It was a hot, muggy day. There were no exhaust pipes, and the motors exhausted inboard. No one opened the ports or windows, and there were no blowers in operation. As a result, that portion of the vessel became partially filled with carbon monoxide gas. On such evidence it could be found that the master was negligent in permitting this to occur, and that, whether he was negligent or not, the vessel became unseaworthy. Turner, while engaged in his employment, inhaled excessive quantities of gas for perhaps 7 or 8 hours. During this period he had pains in his chest and was nauseated, but continued to work, not knowing what the trouble was, until he blacked out. He died shortly thereafter without recovering consciousness.
The defendant is the owner of the Pilgrim Belle. There are five counts. In none is there a mention of the Jones Act, or an allegation that it is brought under 46 U.S.C.A. § 688. However, at the hearing plaintiff stated that all counts were brought under that Act. I will first consider each count individually as drawn, and then as if under the Act.
Count 1, as drawn, is for personal injuries (other than death), due to negligence. It is alleged that Turner was a business invitee. The injury was inflicted on navigable waters, and constituted a maritime tort. Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S. Ct. 202, 98 L.Ed. 143; Thorneal v. Cape Pond Ice Co., 321 Mass. 528, 74 N.E.2d 5. The action was brought on the law side of the court. Although there is a prayer for damages in the amount of $10,000, it is not affirmatively alleged that $3,000 is involved. I made inquiry and received statements of plaintiff's counsel addressed to this subject, and hold that as matter of law they could not warrant such a finding.[2] The action, accordingly, fails to satisfy the requirements of 28 U.S.C. § 1331.
Count 2 is similar to Count 1, except that it makes an additional or alternative allegation of unseaworthiness. Defendant contends that a cause for personal injuries due to unseaworthiness does not survive. It is unnecessary to consider this question, because plaintiff is faced with the same difficulty of absence of the jurisdictional amount. Doucette v. Vincent, 1 Cir., 194 F.2d 834.
Count 3 seeks to recover for Turner's wrongful death, alleging that it was occasioned by defendant's negligence. Recovery for such death is purely statutory. Plaintiff has no claim under the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq., because neither the injury nor the death occurred on the high seas. The Massachusetts death statute, Mass.G.L.(Ter.Ed.) c. 229, § 2C, added by St.1949, c. 427, § 3 as amended, is punitive, and does not create a maritime cause of action. Plaintiff cannot *267 sue in the federal court on this statute in the absence of diversity of citizenship. Doucette v. Vincent, 1 Cir., 194 F.2d 834, 843, note 7.[3]
Count 4 is paired with Count 3, and is for death due to unseaworthiness. Unseaworthiness, also, does not create a cause of action for death at common law. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Lindgren v. United States, 281 U.S. 38, 50 S.Ct. 207, 74 L. Ed. 686.
Count 5 is for funeral expenses "under the laws of the United States." Counsel suggests no law that would be apposite except Article 7, Shipowners Liability Convention, 1936, 54 Stat. 1693, 1699, which equates recovery with liability for maintenance and cure. Maintenance and cure is a contractual obligation. Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107. In spite of certain conclusory allegations of plaintiff, it is clear that there was no contract between Turner and the defendant. Calvino v. Farley, D.C.S.D.N.Y., 23 F.Supp. 654.
The Jones Act cannot breathe life into the complaint. Counts 1 and 2 still must fail for lack of the jurisdictional amount. Branic v. Wheeling Steel Corp., 3 Cir., 152 F.2d 887, certiorari denied 327 U.S. 801, 66 S.Ct. 902, 90 L.Ed. 1026. The Act cannot aid Count 5, because, as stated, maintenance and cure is purely contractual. It is not within the Act. Nor can it affect Counts 3 and 4. By its terms the Jones Act is an employer's liability act, directed against the seaman's employer. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692, rehearing denied 338 U.S. 839, 70 S.Ct. 32, 94 L.Ed. 513. Plaintiff points out that the fact Turner was working aboard ship made him a seaman for the purpose of the Act. This may well be so; but that is not to say his employer was the ship. Regardless of the location of his activities, he was in the employ of McKie, and not of the defendant. White v. American Barge Lines, D.C. W.D.Pa., 127 F.Supp. 637; The New Brooklyn, D.C.D.Mass., 37 F.Supp. 955; cf. Kelly v. Delaware River Joint Commission, D.C.E.D.Pa., 85 F.Supp. 15, and cases cited. Plaintiff has a number of other courses open, including her action against McKie. This complaint is dismissed.
NOTES
[1] Turner was on McKie's payroll, and was not on the vessel's, but plaintiff contends that, in addition to being a business invitee, in legal effect he was for some purposes also an employee of the vessel. The entire factual basis for this claim appears in this opinion.
[2] Plaintiff states that Turner "had tightness across the forehead, severe headache, muscular weakness, dizziness, nausea and vomiting, lasting over a period of at least 7 or 8 hours; that he complained of pain in the chest, stating that he thought he had pneumonia." However such pains may be characterized, actions speak louder than words, and it is admitted that he continued to work throughout this interval. While $3,000 might well be compensation for agonizing pain of short duration due to extreme trauma, or well-known excruciating poisons such as strychnine, and even if it might not be appropriate for me to take judicial notice of the fact that carbon monoxide is a favorite suicide medium because of its relatively innocuous-feeling and insidious effects, I would certainly hold that pain for 7 or 8 hours not severe enough to cause a man to stop work or realize that something more serious was the matter is not of $3,000 extent.
[3] Where liability for death depends upon a state statute any admiralty cause is not only limited to the state substantive law, Byrd v. Napoleon Avenue Ferry Co., D.C.E.D.La., 125 F.Supp. 573, affirmed 5 Cir., 227 F.2d 958, certiorari denied 76 S.Ct. 783 (contributory negligence); Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (time for suit); but if the statute is purely penal it creates no admiralty cause at all. M'Afee v. The Creole, D.C.E.D.Pa., 15 Fed.Cas. 1201, No. 8,655. In in Re St. Louis & Tennessee River Packet Co., D.C. E.D.Mo., 266 F. 919, the statute, though partly penal, considered fair compensation as a measure of damages. The Massachusetts statute does not, but makes "degree of * * * culpability" the sole measure. Therefore while, in the broad, the statute does have a compensatory effect, and that adjective has been used, it is truly penal, Porter v. Sorell, 280 Mass. 457, 182 N.E. 837, 85 A.L.R. 1159; Arnold v. Jacobs, 316 Mass. 81, 54 N.E.2d 922, and is "exactly what Lord Campbell's act is not." Hudson v. Lynn & Boston Railroad Co., 185 Mass. 510, 519, 71 N.E. 66, 70. Even if it is not penal to the extent that, upon a showing of diversity, a civil action could not be brought on the law side of the court, Boston & M. R. R. v. Hurd, 1 Cir., 108 F. 116, 56 L.R.A. 193, certiorari denied 184 U.S. 700, 22 S.Ct. 939, 46 L. Ed. 765; Cross v. Ryan, 7 Cir., 124 F. 2d 883, certiorari denied 316 U.S. 682, 62 S.Ct. 1269, 86 L.Ed. 1755, the importation of a pure penalty instead of damages would scarcely be consistent with the "characteristic features of the general maritime law." Cf. Western Fuel Co. v. Garcia, 257 U.S. 233, 242, 42 S.Ct. 89, 90. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263134/ | 27 F.Supp. 149 (1939)
ROHDE et al.
v.
DIGHTON et al.
No. 145.
District Court, W. D. Missouri, W. D.
March 2, 1939.
L. V. Copley, Walter A. Raymond, and Homer A. Cope, all of Kansas City, Mo., for plaintiffs.
Clif Langsdale and Roy W. Rucker, both of Kansas City, Mo., for defendants.
REEVES, District Judge.
The complainants seek to restrain the defendants individually and as representatives of a labor organization from interfering with the operation of a theatre owned by them and currently operated by them without the services of employees. It is the contention of the complainants that, under such circumstances, there could not be a labor dispute, and that, therefore, they are entitled to injunctive relief as in the ordinary case in equity where there is an interference in the operation of a business.
*150 The defendants have filed a motion to dismiss the bill or petition upon the ground that: "The facts stated * * * affirmatively show that this court is wholly without jurisdiction to grant the relief prayed, and it further appears from the face of the petition that this court has no jurisdiction over the parties."
In support of this motion it is urged by counsel that the complaint shows on its face that it involves a labor dispute and in the absence of appropriate averments there is no jurisdiction of this court over the subject matter.
The motion to dismiss should be considered first. The jurisdiction of the court is sought by reason of a diversity of citizenship and an adequate value in controversy.
The complaint is to the effect that the plaintiffs are operating a motion picture theatre at 7106 Prospect Avenue, Kansas City, Jackson County, Missouri, known as the Sun Theatre, and that defendants are interfering with such operation by picketing and otherwise. The plaintiffs detail their previous relationship to defendants by saying that, in September 1937, they were coerced to employ union operator for their motion picture machine. They did this, although some of the owners were expert and competent for the manipulation and operation of the machine. They agreed to pay the union operator $35 per week, being $13 per week less than the union scale for such operators. Plaintiffs did this, so they say, to prevent interference by the defendants with the operation of their theatre. On January 16, 1939 the defendants demanded payment to the operator in accordance with the union scale. The plaintiffs declined to yield to this demand and discharged the operator and resumed their own operations without the aid of employees. They state in their petition that: "they do not discriminate against Union labor, but merely choose to employ no labor, but to do the work themselves." The complaint contains averments of serious interference with the operation of their theatre by the acts and conduct of the defendants.
1. Since the complaint on its face contains the usual jurisdictional averments, this court would have jurisdiction unless same is taken away by Section 101, Title 29 U.S.C.A., relating to the general subject of Labor. This Section specifically provides that: "No court of the United States, as defined in this chapter, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter."
It is to be noted that United States courts are denied jurisdiction to grant or issue an injunction except under certain contingencies. While the suit may be entertained, yet the court is denied the power or authority to issue an injunction or restraining order until after specified procedure wherein certain facts are made to appear.
It may be that the plaintiffs will be able to aver and establish such facts and thereby confer jurisdiction upon the court to grant the requested order.
While in this case interstate commerce is not involved or affected, yet the labor injunction provision as above quoted is not restricted to such cases, but applies broadly to all labor disputes in the United States courts.
The motion to dismiss should be overruled.
2. The only remaining major question is whether the plaintiffs are entitled to an injunction without the necessity of making the averments and proofs contemplated by the Labor Act. If a labor dispute appears from the face of the complaint, then the statute above quoted would apply. That there is a labor dispute can hardly be questioned in the light of the authorities.
The controlling, or most persuasive case on that question is that of New Negro Alliance v. Grocery Co., 303 U.S. 552, 58 S.Ct. 703, 82 L.Ed. 1012, as amended, 304 U.S. 542, 58 S.Ct. 703. In that case the complainant sought an injunction because its business was picketed or there was an interference with its business operations by the defendant through its agents and representatives. The reason for the interference was that the plaintiff employed all white and no colored workmen. The Supreme Court held that within the purview of the Norris-LaGuardia Act, 29 U. S.C.A. § 101 et seq., there was a labor dispute. In this case, the employer had a full complement of employees. The defendants *151 sought to compel the employment of colored workmen.
Another case is that of Lauf et al. v. E. G. Shinner & Co., 303 U.S. 323, 58 S. Ct. 578, 82 L.Ed. 872, where the defendants undertook to compel complainant to require its employees to join a union. The court held that there was a labor dispute, both in the purview of a Wisconsin labor statute, as well as the national labor law. In that opinion the court placed emphasis upon the jurisdiction of the court as follows (303 U.S. loc. cit. 327, 58 S.Ct. loc. cit. 580, 82 L.Ed. 872): "But the power of the court to grant the relief prayed depends upon the jurisdiction conferred upon it by the statutes of the United States."
This lack of jurisdiction went to the question of procedure rather than the matter of entertaining the bill.
The case of Senn v. Tile Layers Protective Union, 301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229, is somewhat analogous to the point here raised, although it involved the interpretation of a state statute. The court declined to quash the opinion of the Supreme Court of Wisconsin in a case where a labor union had sought to compel an employer to refrain from doing his own work without joining the union. The court said that it was the right of the state to adopt such a policy and that guaranties of the federal constitution were not violated.
In view of the above, it must be concluded that the complaint on its face shows a labor dispute, and because of that fact, the court is without jurisdiction to issue a temporary injunction.
Inasmuch as the court has jurisdiction of the subject matter, it is permissible for the plaintiffs to undertake to comply with the conditions precedent which would confer jurisdiction to grant such an order.
Such procedure was approved in Mayo v. Dean, 5 Cir., 82 F.2d 554, and other cases, although in Grace Co. v. Williams, 8 Cir., 96 F.2d 478, loc. cit. 481, the dismissal of the petition was approved because it failed "to disclose by affirmative allegations * * * that it [plaintiff] was entitled to invoke the equitable jurisdiction of the court."
Since that decision the new Rules of Civil Procedure have been adopted. Rule 15 thereof, 28 U.S.C.A. following section 723c, provides that a party may amend a pleading as a matter of course before a responsive pleading is filed. "Otherwise a party may amend his pleading only by leave of court * * * and leave shall be freely given when justice so requires."
It follows from the above, as heretofore stated, that the motion to dismiss should be overruled and the application for a temporary injunction also should be denied at this time. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263135/ | 31 Cal.App.4th 1430 (1995)
37 Cal. Rptr.2d 778
PINNACLE HOLDINGS, INC., Plaintiff and Appellant,
v.
HAROLD SIMON et al., Defendants and Respondents.
Docket No. B078275.
Court of Appeals of California, Second District, Division Six.
January 31, 1995.
*1432 COUNSEL
Hart, King & Coldren, Robert S. Coldren and C. William Dahlin for Plaintiff and Appellant.
Kurt Delsack, Michael Goode, L.M. Schulner, Timothy S. Camarena and Richard A. Weinstock for Defendants and Respondents.
OPINION
STONE (S.J.), P.J.
Four tenants of a mobilehome park protested the park owner's request for a rental increase. This exercise of free speech and right to protest resulted in their being named as defendants in the park owner's action against the city for failure to grant the total relief requested. Do the tenants have to remain in the lawsuit and represent unwillingly the rest of the mobilehome park tenants? They do not.
Pinnacle Holdings, Inc. (Pinnacle), appeals from judgments of dismissal in favor of respondents Patty Cau and Harold Simon following the court's sustaining respondents' demurrers without leave to amend and denying Pinnacle's motion to certify respondents as representatives of a class. Pinnacle asserts that the individual defendants were proper parties to the cause of action for declaratory relief as real parties in interest and that the motion to determine and certify the tenants as a class should have been granted. We affirm the judgments.
FACTS
Pinnacle owns and operates Imperial Ventura Mobile Estates, a residential mobilehome park which is subject to the City of San Buenaventura's (City) *1433 mobilehome park rent control ordinance No. 81-39, as amended by City Ordinance Nos. 84-13, 86-1 and 87-15 (Ordinance). In late 1992, Pinnacle applied to the City's mobilehome rent review board (Board) for a discretionary rent increase pursuant to the Ordinance. The Board made an oral decision to allow a lesser increase than requested by Pinnacle. Pinnacle filed a petition for writ of mandate/administrative mandamus and complaint for declaratory relief, challenging the City's decision. Along with the City and the Board, Pinnacle named as defendants and real parties in interest four individual tenants of the mobilehome park who had attended the hearing before the Board to protest Pinnacle's requested rent increases. Pinnacle also filed a motion pursuant to Code of Civil Procedure section 382 to determine class certification.
Two of the named defendants, Patty Cau (mistakenly named as Patty "Cowe") and Harold Simon, demurred to the petition on grounds of misjoinder and failure to state a cause of action against defendants Cau and Simon for declaratory relief. (Code Civ. Proc., § 430.10, subds. (d), (e), (f).) They and another named defendant, William J. Kilduff, opposed certification of class defendants with them as named representatives. The court sustained respondents' demurrers without leave to amend and denied Pinnacle's motion for certification of class. Judgments of dismissal were subsequently entered.
DISCUSSION
(1a) Pinnacle asserts that the trial court erred in sustaining the demurrers because the individual defendants were proper parties to the cause of action for declaratory relief as real parties in interest. The verified petition declared that "Defendants and Real Parties in Interest William J. Kilduff, Patty Cowe, Patrick Burke and Harold Simon are, and at all times herein mentioned were, residents (tenants) located and currently residing within Imperial Ventura and not lessees pursuant to a long-term lease. Pinnacle is informed and believes and thereon alleges that said Real Parties in Interest appeared herein on their own behalf, and on behalf of all similarly situated residents (tenants) of Imperial Ventura...."
The first cause of action for traditional writ of mandate (Code Civ. Proc., § 1085) was against only the Board for violation of applicable laws. The second cause of action for administrative mandamus (Code Civ. Proc., § 1094.5) was also against the Board for allegedly exceeding its jurisdiction and authority, constituting a prejudicial abuse of discretion. The third cause of action for declaratory relief was against all defendants. It alleged that "[a]n actual controversy has arisen and now exists between Pinnacle and *1434 Respondents/Defendants, and each of them, concerning what is the proper and lawful interpretation of the Ordinance, the City of San Buenaventura's compliance with the Ordinance, applicable law, and the City of San Buenaventura's compliance with applicable law."
The third cause of action also alleged that "... Respondents/Defendants, and each of them, contend and take an opposite position in regard to each of the contentions of Pinnacle as set forth above." It further alleged that "[a] judicial determination and declaration regarding the above-referenced controversy is necessary and appropriate so as to settle the rights, duties and obligations of the parties hereto. A judicial declaration is further necessary and appropriate at this time because an actual controversy exists between Pinnacle and Respondents/Defendants, and each of them, and Pinnacle needs to ascertain its rights, duties and obligations under the Ordinance without being subjected to potential civil liability, potential criminal liability, or a multiplicity of actions by Respondents/Defendants."
In the prayer for the first and second causes of action, Pinnacle prayed for a writ of mandate or administrative mandamus compelling the Board to grant Pinnacle a rent increase based upon its application. Pinnacle further prayed that the Board be ordered to vacate its decision and enter a new and different award granting Pinnacle 100 percent of the consumer price index increase in its net operating income from the base year to present, allowing and calling for Pinnacle to be reimbursed for its actual allowable expenses, and to utilize submetering of utilities as allowed by law and to otherwise grant and enforce Pinnacle's application for a rent increase. In the prayer on the third cause of action, Pinnacle requested a judgment declaring that the Board acted contrary to applicable law and deprived Pinnacle of a just and fair return.
Respondents argued that the petition sought no relief from them and that since they were not members of the Board, they could not grant relief to Pinnacle. Pinnacle contends that the individual residents have received a direct economic benefit at the expense of Pinnacle due to the method employed by the City and its Board in reviewing Pinnacle's rent increase application. For that reason, Pinnacle named the residents who actually appeared at the hearing as parties to the action, individually and as representatives of the other residents.
(2) Pinnacle has the burden to show either that the demurrer was sustained erroneously or that the court abused its discretion in sustaining the demurrer without leave to amend. (Smith v. County of Kern (1993) 20 Cal. App.4th 1826, 1829-1830 [25 Cal. Rptr.2d 716]; Stanson v. Brown (1975) 49 Cal. App.3d 812, 814 [122 Cal. Rptr. 862].) We accept as true all *1435 matters properly pled in the complaint, but may consider matters that may be judicially noted. (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 8-9, fn. 3 [32 Cal. Rptr.2d 244, 876 P.2d 1043].) (3) Before a hearing may be held on the propriety of a class action, the complaint must contain sufficient allegations of class interest or the pleading is vulnerable to a general demurrer. (Bartlett v. Hawaiian Village, Inc. (1978) 87 Cal. App.3d 435, 437-438 [151 Cal. Rptr. 392].) (4) Whether to certify a class is a decision which rests within the sound discretion of the trial court. (Reyes v. Board of Supervisors (1987) 196 Cal. App.3d 1263, 1271 [242 Cal. Rptr. 339].) A reviewing court will not disturb this decision on appeal if it is supported by substantial evidence, unless the trial court either employed improper criteria or made erroneous legal assumptions. (Caro v. Procter & Gamble Co. (1993) 18 Cal. App.4th 644, 655 [22 Cal. Rptr.2d 419]; see also Osborne v. Subaru of America, Inc. (1988) 198 Cal. App.3d 646, 654 [243 Cal. Rptr. 815].)
(5) Trial courts must carefully weigh the respective benefits and burdens and allow maintenance of the class action "only where substantial benefits accrue both to the litigants as well as the courts." (Reyes v. Board of Supervisors, supra, 196 Cal. App.3d 1263, 1271.) Pinnacle, as the party seeking class certification, bears the burden of not only showing that substantial benefits, both to the litigants and to the court, will result from class certification, but that the class will be adequately represented and its interests protected. (Ibid.; see also National Solar Equipment Owners' Assn. v. Grumman Corp. (1991) 235 Cal. App.3d 1273, 1284 [1 Cal. Rptr.2d 325].)
(1b) Pinnacle asserts that since, on demurrer, its allegations must be accepted as true, respondents could not allege that an actual controversy did not exist regarding the Board's interpretation of Civil Code section 798.41 (allowable utility service fees under the Mobilehome Residency Law [Civ. Code, § 798 et seq.]). Pinnacle argues that, while the tenants may not be indispensable parties, it was permissible to include them within the litigation so that any concern about such parties' due process rights would be eliminated. Respondents were four of over three hundred tenants who received notices of Pinnacle's application for rent increase. These four tenants appeared at the hearing to voice their opposition to an increase, as they had a right to do under the Ordinance (a copy of which is attached to Pinnacle's petition). For their efforts, they are now on the receiving end of a lawsuit. Is this how Pinnacle protects their due process rights?
The tenants are not without means of protecting their interests. They did not need Pinnacle's help. Section 2289.45 of the Ordinance gives tenants the right to seek injunctive relief and damages, individually or by class action, if "any owner demands, accepts, receives or retains any payment of rent in *1436 excess of the maximum lawful space rent, as determined under this Article...." Since all tenants to be affected by any increase were on notice that the Board might grant Pinnacle's request, those who have not sought to be joined in the suit apparently chose to live with the Board's decision and the chance it could be overturned on appeal. Those who wished to do so could have taken action pursuant to the Ordinance or intervened in any ensuing legal proceedings. (See Code Civ. Proc., § 387.)
It is true that the Board's decision may affect Pinnacle's tenants. However, the relief requested can be granted without legal participation of any tenants. "`The question of standing to sue is one of the right to relief and goes to the existence of a cause of action against the defendant....'" (Killian v. Millard (1991) 228 Cal. App.3d 1601, 1605 [279 Cal. Rptr. 877].) The tenants were not necessary parties because their ability to protect their interest was neither impaired nor impeded. (Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal. App.3d 151, 161 [217 Cal. Rptr. 893].) Moreover, even if their ability to protect their interest is impaired by their inaction, they are not indispensable. "The Supreme Court provided guidance in this regard when it cautioned against the common blunder of finding any necessary party as indispensable and observed that `... we should ... be careful to avoid converting a discretionary power or a rule of fairness in procedure into an arbitrary and burdensome requirement which may thwart rather than accomplish justice.'" (Id., at p. 162.)
Pinnacle asserts that it is proper to join respondents in its dispute with the Board even if respondents cannot give the relief sought in the petition because of some passing interest the tenants might have. We disagree. The first cause of action for "traditional mandamus" under Code of Civil Procedure section 1085 is to compel the performance of a duty which is purely ministerial in character. (State of California v. Superior Court (1974) 12 Cal.3d 237, 247 [115 Cal. Rptr. 497, 524 P.2d 1281].) That cause of action cannot apply to respondents since they have no ministerial duty concerning rent adjustments (Nor does the Board, since its function is discretionary, rather than ministerial.) Nor are respondents proper parties to the cause of action for administrative mandamus under Code of Civil Procedure section 1094.5 since that action is directed to a final administrative order or decision.
Pinnacle asserts that an action for declaratory relief may lie against an administrative agency where the allegation is that the agency has a policy of ignoring or violating applicable laws and regulations, i.e., that the agency has set an overreaching, quasi-legislative policy. (See Californians for Native *1437 Salmon etc. Assn. v. Department of Forestry (1990) 221 Cal. App.3d 1419, 1429 [271 Cal. Rptr. 270].) Consequently, Pinnacle argues, since it has alleged that an actual controversy exists between Pinnacle and all defendants, respondents are properly joined, even if they are only real parties in interest and not necessary parties. Again we disagree. "`The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.'" (Id., at p. 1427.) Even assuming Pinnacle is challenging an overall policy rather than seeking the same remedies as in the first and second causes of action via declaratory relief rather than mandate (see State of California v. Superior Court, supra, 12 Cal.3d 237, 248-249), Pinnacle has requested no relief from respondents nor can respondents grant any relief. Those facts are dispositive.
"`[I]t is fundamental that a person should not be compelled to defend himself in a lawsuit when no relief is sought against him.'" (Duffey v. Superior Court (1992) 3 Cal. App.4th 425, 429 [4 Cal. Rptr.2d 334].) The only parties the trial court needed to make a complete determination about whether the Board correctly calculated the rent increase were Pinnacle and the Board. The application to the Board and the ensuing legal action were brought by Pinnacle, not by the tenants. Respondents have had to incur legal expenses due to Pinnacle's effort to "protect" respondents' right because they appeared at the hearing on Pinnacle's application. Had respondents utilized the procedure set out in Code of Civil Procedure section 425.16, the court might well have granted the motion.
Moreover, the cases Pinnacle cites to support its argument that the court abused its discretion in denying its motion to certify defendants as representatives of the class of tenants are inapposite. For the most part, they concern plaintiffs who want to represent a class. (See, e.g., Rich v. Schwab (1984) 162 Cal. App.3d 739, 744 [209 Cal. Rptr. 417].) "[T]here is a substantial difference between a plaintiffs' class suit and a lawsuit against a class of defendants. Defendants' class actions involve the serious danger of fraudulent or calculated selection of defendants who might not fully and fairly represent the interests of the class...." (Simons v. Horowitz (1984) 151 Cal. App.3d 834, 844 [199 Cal. Rptr. 134].) Here, Pinnacle was attempting to join into the litigation unwilling defendants and impose upon them the responsibility of monitoring the litigation to make certain that the interests of the alleged class are being protected. "`... [I]t is the responsibility of the class representative to protect the interests of all class members.'" (Ibid.) To allow Pinnacle to impose such responsibility on unwilling parties against whom Pinnacle seeks no affirmative relief would have a chilling effect on the provision of the Ordinance for allowance of interested parties to participate in hearings of this type.
*1438 The judgments are affirmed. Costs to respondents.[1]
Gilbert, J., and Yegan, J., concurred.
Petitions for a rehearing were denied February 16, 1995, and the opinion was modified to read as printed above.
NOTES
[1] Respondent Simon argued that sanctions for frivolous appeal should be imposed. We deny the request for two reasons. It was untimely and Pinnacle's appeal was based on language in prior published opinions which could have led it to conclude respondents were permissible, if not indispensable, parties to the litigation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263136/ | 27 F.Supp. 981 (1939)
CAVICCHI
v.
MOHAWK MFG. CO., Inc.
District Court, S. D. New York.
May 25, 1939.
*982 Alan N. Mann, of New York City (William D. Burrows, of New York City, of counsel), for petitioner.
Dyke & Schaines, of New York City (W. R. Liberman, of New York City, of counsel), for respondent.
LEIBELL, District Judge.
Petitioner, a citizen and resident of the State of Massachusetts, sues respondent, a citizen and resident of the State of New York, for a declaratory judgment, adjudging that petitioner's tufted button, used in the manufacture of mattresses, does not infringe any of the claims of a certain patent owned by respondent.
Respondent has moved for an order requiring petitioner "to deposit sufficient security with the Clerk of the Court to cover respondent's costs herein."
Petitioner opposes the motion, contending that there is no provision in the new Federal Rules of Civil Procedure requiring security for costs (except, of course, Rule 65(c) 28 U.S.C.A. following section 723c, providing for security for costs and damages when a restraining order or preliminary injunction is issued). Petitioner argues that the new Federal Rules of Civil Procedure (Rule 1 and Rule 83) in effect abolished the Conformity Act (28 U.S.C.A. § 724) under which the Federal District Courts in New York had applied Section 1522 of the New York Civil Practice Act requiring a non-resident plaintiff to give security for costs. Nor is there any specific provision of our Civil Rules for this district, dealing with the subject of security for costs. However, Rule 34 of our local Civil Rules, adopted and promulgated by the Judges of the United States District Court for the Southern District of New York, pursuant to the authority conferred on them by Rule 83 of the Federal Rules of Civil Procedure, meets the situation now presented and in effect retains as part of our practice in this District the provisions of Section 1522, N. Y. Civil Practice Act, relating to security for costs.
Rule 83 of the Federal Rules of Civil Procedure, under which the District Judges acted, reads as follows:
"Rule 83. Rules By District Courts
"Each district court by action of a majority of the judges thereof may from time to time make and amend rules governing its practice not inconsistent with these rules. Copies of rules and amendments so made by any district court shall upon their promulgation be furnished to the Supreme Court of the United States. In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules."
Similar powers, with the concurrence of a majority of the Circuit Judges, were conferred on the District Courts by Equity Rule 79, 28 U.S.C.A. following section 723. Certain rule making powers were also conferred on the District Courts by 28 U.S.C. A. § 731.
Rule 34 of our local Civil Rules, duly promulgated for this District, reads as follows:
"Rule 34. Procedure in Absence of Rule.
"Whenever a procedural question arises which is not covered by the provisions of any statute of the United States, or of the Federal Rules of Civil Procedure, or of these rules, it shall be determined, if possible, by the parallels or analogies furnished by such statutes and rules. If, however, no such parallels or analogies exist, then the procedure heretofore prevailing in courts of equity of the United States, or in default thereof the procedure which shall then prevail in the Supreme Court of the State of New York shall be applied."
It was a practice on the equity side of this Court, prior to the adoption of the Federal Rules of Civil Procedure, to require non-resident plaintiffs to furnish security for costs. Uhle v. Burnham, C.C., 46 F. 500. A similar practice prevailed in other Federal districts. Deprez v. Thomson-Houston Electric Co., C.C., 66 F. 22; Long et al. v. Stites, 6 Cir., 63 F.2d 855. It has been held that a federal court of equity has the inherent power to require a non-resident suitor to furnish security for costs, without any statute or rule of court specially providing therefor. Karns v. W. L. Imlay Rapid Cyanide Process Co., C.C., 181 F. 751.
The procedure prevailing in the Supreme Court of the State of New York under Section 1522 et seq. of the New York Civil Practice Act, gives a defendant in that court the right to require a non-resident plaintiff to furnish security for costs.
It appears therefore, that under several of the clauses of Rule 34 of the Civil Rules of this District, defendant's motion *983 for security for costs may be granted. Motion granted accordingly. Settle order on notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263137/ | 893 A.2d 1011 (2006)
2006 ME 32
Patricia BRAWN et al.
v.
ORAL SURGERY ASSOCIATES, P.A. et al.
Supreme Judicial Court of Maine.
Argued: January 23, 2006.
Decided: March 30, 2006.
*1012 Philip P. Mancini, Esq. (orally), Drummond & Drummond, LLP, Portland, for plaintiffs.
Craig A. Fontaine, Esq. (orally), Cramer, Alissi & Fontaine, P.C., Hartford, CT, James E. Belleau, Esq., Skelton, Taintor & Abbott, Auburn, for defendants.
Panel: SAUFLEY, C.J., and, DANA, CALKINS, LEVY, and SILVER, JJ.
CALKINS, J.
[¶ 1] This appeal is the latest phase in the litigation initiated by former patients against the oral surgeons who inserted Vitek implants in the patients' temporomandibular joints to relieve malfunctions.[1] Kahla Gerard, Mary Shane, and Joline York appeal from the summary judgment against them and in favor of Oral Surgery Associates, P.A., and the individual oral surgeons,[2] entered in the Superior Court *1013 (Cumberland County, Delahanty, J.). Lynette Thompson appeals from the same summary judgment, which was against her and in favor of G.P. Raynald Roy, D.D.S., and his professional association. These patients contend that the Superior Court misinterpreted our 2003 decision in this case, Brawn v. Oral Surgery Associates, 2003 ME 11, 819 A.2d 1014 (Brawn I), when it held that they have no viable claims against the oral surgeons. We disagree with their contention, and we affirm the judgment.
[¶ 2] Patricia Brawn, Vicki Fortier, Paul Molnar, Arline Trenholm, and Susan Weir appeal from an entry of judgment against them and in favor of OSA, entered in the Superior Court (Fritzsche, J.). Robin Dutil and Sandra Ellis appeal from the same judgment, which was against them and in favor of John Burns, D.D.S. These seven patients contend that Brawn I held that they have viable claims against the oral surgeons and that the Superior Court misinterpreted Brawn I in granting judgment to the surgeons on remand. We affirm the judgment.
I. BACKGROUND
[¶ 3] The history of this protracted litigation is briefly described in Brawn I. In four separate actions, twenty-five former patients sued the oral surgeons who surgically implanted the Vitek devices, and their spouses joined with loss of consortium claims. Only eleven of the patients are parties to this appeal. The surgeries for these eleven patients were performed in the mid-1980s, but their notices of claim were not filed earlier than 1993. Because the patients' claims are for professional negligence, they come within the Health Security Act (HSA) and its three-year statute of limitations. 24 M.R.S. § 2902 (2005). Thus, a primary dispute between the parties concerns when the cause of action arose.
[¶ 4] As the health risks associated with the Vitek implants became recognized, in December 1990, the federal Food and Drug Administration distributed an "FDA Safety Alert" addressed to all oral and maxillofacial surgeons, warning of the dangers of the implants, recalling all unused Vitek implants, and recommending that all patients with the implants be evaluated, treated, and monitored. All of the patients in this appeal allege that they suffered from symptoms associated with the implants and mental distress from not being given information regarding the implants. These patients all eventually learned of the dangers of the implants either from receiving the FDA warning or from other sources, including from the oral surgeons. These patients allege that the oral surgeons downplayed or minimized their concerns and symptoms even after the FDA warning. The implants of all eleven patients in this appeal, with the exception of Weir, were removed between 1986 and 1995. These patients all filed notices of claim between 1993 and 1998 and, with the exception of Brawn, none of the patients whose implants were removed filed a notice of claim within three years of the implant removal.
[¶ 5] Of the eleven patients in this appeal, all but Thompson were also appellants in Brawn I. That case concerned two summary judgments that were entered by the court (Delahanty, J.) against the patients who sued OSA and Burns. Thompson was not covered by either summary judgment because the motions had not included her. This appeal concerns two *1014 judgments that were entered following remand in Brawn I.
[¶ 6] The summary judgment that was the primary subject of discussion in Brawn I was filed in April 2000 and was brought by OSA against the OSA patients on the patients' fraudulent concealment claim. The patients had claimed that the surgeons fraudulently concealed their causes of action, and, therefore, they were entitled to rely on the six-year statute of limitations, 14 M.R.S. § 859 (2005), instead of the three-year HSA statute of limitations. By order dated June 20, 2001, the court granted the motion and entered judgment on all of the patients' claims even though OSA had moved for summary judgment only on the fraudulent concealment claim. Because this summary judgment reached more than the fraudulent concealment claim, we discussed the remaining claims the patients had brought, and we placed them into five categories. Brawn I, 2003 ME 11, ¶ 19, 819 A.2d at 1025. We agreed with the Superior Court that summary judgment was properly granted against the patients in all categories of claims except Category E, which we described as follows: "[A] breach of the duty to adequately advise the patient as to the risks to his/her health of leaving the implants in place during the period after the operation and within three years of the filing of the notice of claim."[3]Id. We affirmed the June 20, 2001, summary judgment on all claims except those in Category E, and we remanded the matter for further proceedings. Id. ¶ 36, 819 A.2d at 1029. Thus, the only remaining issue for the patients was whether they had viable Category E claims.
[¶ 7] Following further discovery after Brawn I, the surgeons filed new motions for summary judgment against Gerard, Shane, York, and Thompson.[4] In a decision dated May 27, 2004, the court granted summary judgment in favor of the surgeons on the basis that the patients' claims were barred by the statute of limitations because they waited more than three years after their implants were removed to file notices of claim. The court reasoned that the surgeons did not have a duty to advise the patients of the health risks of leaving the implants in place once the implants had been removed. Therefore, the statute of limitations began to run, at the latest, on the date the implants were removed. Because these four patients filed their notices of claim more than three years after having the implants removed, any claim for failing to warn them of the risk of leaving the implants in place was barred.
[¶ 8] The other summary judgment motion that was discussed in Brawn I was filed in January 2000 and involved seven patients: Brawn, Dutil, Ellis, Fortier, Molnar, Trenholm, and Weir, hereinafter referred to as the "seven patients." By an order dated June 21, 2001, the court granted summary judgment to the respective surgeons because the seven patients "all learned of the dangers to their health more than three years before their notices of claim," and their "`breach of the duty to warn'" claims were therefore no longer viable. Id. ¶ 3, 819 A.2d at 1018-19. We neither expressly affirmed nor vacated the June 21, 2001, summary judgment. Thus, *1015 on remand, the seven patients and the surgeons disagreed as to whether the seven patients were still in the case and entitled to argue that they had Category E claims, or whether the summary judgment against them on all of their claims had been affirmed. After receiving legal memoranda from the parties, the court issued a decision, dated September 15, 2004, interpreting Brawn I as having affirmed the summary judgment, and it granted judgment to the respective surgeons of the seven patients.
[¶ 9] The court (Fritzsche, J.) certified both summary judgments as final judgments pursuant to M.R. Civ. P. 54(b)(1), and the eleven patients have appealed both judgments.
II. DISCUSSION
A. Standard of Review
[¶ 10] We review a summary judgment ruling de novo, "viewing the evidence in the light most favorable to the nonmoving party, to decide whether the parties' statements of material fact and referenced record evidence reveal a genuine issue of material fact." Rice v. City of Biddeford, 2004 ME 128, ¶ 9, 861 A.2d 668, 670. We vacate a grant of summary judgment if there is a genuine issue of material fact or if the court committed a legal error. Brawn I, 2003 ME 11, ¶ 15, 819 A.2d at 1022-23. When the plaintiff fails to set forth facts showing that there is a genuine issue for trial on a statute of limitations defense, summary judgment may be granted on the ground that the applicable statute of limitations has run. See M.R. Civ. P. 56(e); Dugan v. Martel, 588 A.2d 744, 747 (Me.1991).
B. Judgment Against Gerard, Shane, Thompson, and York
[¶ 11] An oral surgeon has "a duty to warn a patient of learned dangers of implanted devices." Brawn I, 2003 ME 11, ¶ 17, 819 A.2d at 1023 (citing Welch v. McCarthy, 677 A.2d 1066, 1069 (Me.1996)). There is no duty to warn of obvious dangers. See Lorfano v. Dura Stone Steps, Inc., 569 A.2d 195, 197 (Me.1990). Therefore, once a patient discovers the risks associated with the implants, the surgeon's duty to warn expires, and any notice of claim filed beyond the applicable statute of limitations is barred. Brawn I, 2003 ME 11, ¶ 29, 819 A.2d at 1027. The applicable statute of limitations is 24 M.R.S. § 2902, which states: "Actions for professional negligence shall be commenced within 3 years after the cause of action accrues. For the purposes of this section, a cause of action accrues on the date of the act or omission giving rise to the injury."
[¶ 12] The only remaining cause of action left to these four patients after Brawn I is that described as a Category E claim: "a breach of the duty to adequately advise the patient as to the risks to his/her health of leaving the implants in place." 2003 ME 11, ¶ 19, 819 A.2d at 1025. Regardless of when that cause of action accrued, there was no longer a cause of action once the patient knew about the dangers of leaving the implants in place. This is precisely what we stated in Brawn I: "[T]he defendants' duty to warn expired when these plaintiffs became aware of the problem." Id. ¶ 29, 819 A.2d at 1027.
[¶ 13] Gerard, Shane, Thompson, and York all became aware of the risks of leaving their implants in place at some point prior to having them removed. The court did not have to determine the exact date that these patients learned of the danger of leaving the implants in place because these patients all had their implants removed, and they waited more than three years after the removals to file notices of their claims. Gerard's implants *1016 were removed on June 17, 1992. She filed her notice of claim on June 19, 1995. Shane's implants were removed in October 1994, and she filed her notice of claim in December 1997. Thompson's implants were removed in 1987, but she did not file a notice of claim until 1995. York's implants were removed in February 1993, and she filed her notice of claim in December 1997. The Superior Court did not err in concluding that the duty to warn claims of Gerard, Shane, Thompson, and York are barred by the statute of limitations.
[¶ 14] Brawn I disposed of any other claims that Gerard, Shane, and York may have had against the surgeons.[5] Therefore, the granting of the summary judgment motion against Gerard, Shane, and York was not in error.
[¶ 15] Thompson, who was not a party in Brawn I, does not argue that she has any claim other than a Category E claim that remains viable under the reasoning of Brawn I. As to her Category E claim, she is in the same position as Gerard, Shane, and York with regard to the surgeons' duty to warn about the dangers of leaving the implants in place. Thus, the grant of summary judgment against her was also appropriate.
C. Judgment Against Brawn, Dutil, Ellis, Fortier, Molnar, Trenholm, and Weir
[¶ 16] As noted above, Brawn I did not expressly affirm the June 21, 2001, summary judgment against Brawn, Dutil, Ellis, Fortier, Molnar, Trenholm, and Weir. They all contend that they have viable Category E claims and that the Superior Court erred in ruling that we affirmed the June 21, 2001, summary judgment, which found against them on all of their claims.
[¶ 17] Brawn I affirmed the June 21, 2001, summary judgment when it stated that the seven patients "learned of the risks associated with their implants more than three years before they filed their notices of claim," and that the court correctly concluded that their "breach of the duty to warn" claims were no longer viable. 2003 ME 11, ¶ 29, 819 A.2d at 1027. As we pointed out in the discussion above regarding the Category E claims of Gerard, Shane, Thompson, and York, the duty to warn expires when the patient learns of the defects. Just as the surgeons' duty to warn Gerard, Shane, Thompson, and York expired when they had the implants removed, if not earlier, the same is true for the seven patients.
[¶ 18] Dutil had her implants removed in March 1992, but she did not file her notice of claim until July 1995. Ellis had her implants partially removed in 1986, and the remainder removed in 1992, but she did not file her notice of claim until July 1995. Fortier's implants were removed in 1989, and her notice of claim was filed in 1995. Molnar had his implants removed in 1992, but he filed his notice of claim in 1998. Trenholm's implants were removed in 1986, but her notice of claim was filed in 1993. It is readily apparent that more than three years transpired between the removal of the implants and the filing of notices of claim by Dutil, Ellis, Fortier, Molnar, and Trenholm.
[¶ 19] The situations of Brawn and Weir are slightly different from the other patients. Brawn's implants were removed on October 2, 1995, and she filed her notice of claim within three years of the removal, on August 20, 1998. However, in her statement of material facts she states that she *1017 learned of the potential problems associated with the implants in May 1993. Thus, she waited more than three years after learning of the dangers of the implants before filing notice of her claim.
[¶ 20] Weir, unlike all of the other patients involved in this appeal, never had her implants removed, according to the OSA statement of material facts filed in January 2000. She filed her notice of claim on May 3, 1994. The OSA statement of material facts states that Weir received a letter from the FDA in 1989 warning of defects regarding the implants. She did not controvert the statement, and it is deemed admitted. Thus, she waited more than three years after learning of the dangers of the implants before filing her notice of claim.
[¶ 21] As we said in Brawn I, the seven patients "learned of the risks associated with their implants more than three years before they filed their notices of claim," and their "breach of the duty to warn" claims were therefore no longer viable. 2003 ME 11, ¶ 29, 819 A.2d at 1027. The Superior Court correctly entered judgment against the seven patients.
The entry is:
Judgments affirmed.
NOTES
[1] Our previous opinions in this case are: Brawn v. Oral Surgery Associates, 2003 ME 11, 819 A.2d 1014; Dutil v. Burns, 1997 ME 1, 687 A.2d 639; and Dutil v. Burns, 674 A.2d 910 (Me. 1996).
[2] The individual surgeons are Lewis N. Estabrooks, D.M.D., Carlton E. Fairbanks, D.M.D., Russell J. Collett, D.D.S., and David J. Moyer, D.D.S., M.D. The professional association and the individual surgeons are here-inafter referred to jointly as "OSA." References herein to "surgeons" also refer to the professional associations involved in this litigation.
[3] We did hold, however, that because they presented evidence of fraudulent concealment within three years of their surgeries, summary judgment was not proper against two patients, who are not parties to this appeal, on their Category B and C claims. Brawn I, 2003 ME 11, ¶¶ 26, 28, 819 A.2d at 1026-27.
[4] Motions were also filed against other patients and spouses, but only Gerard, Shane, Thompson, and York have appealed.
[5] Gerard argues that she still has a viable Category C claim. We stated in Brawn I that the court properly entered judgment against all of the patients' Category C claims (except for two patients who are not involved in this appeal), 2003 ME 11, ¶ 28, 819 A.2d at 1027, and Gerard fails to explain why that statement is not applicable to her. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263151/ | 31 Cal.App.4th 573 (1995)
37 Cal. Rptr.2d 653
UNION BANK, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; CHARLOTTE DEMETRY et al., Real Parties in Interest.
Docket No. B085357.
Court of Appeals of California, Second District, Division Five.
January 12, 1995.
*576 COUNSEL
Fulbright & Jaworski, Robert M. Dawson, Calvin House and Michael P. McGroarty for Petitioner.
No appearance for Respondent.
William A. Kent for Real Parties in Interest.
OPINION
TURNER, P.J.
I. INTRODUCTION
Defendant, Union Bank, seeks a writ of mandate pursuant to Code of Civil Procedure section 437c,[1] subdivision (l), compelling the respondent court to enter a summary judgment on the first amended complaint against plaintiffs who are 11 individuals, a trust, and an individual retirement account. We conclude that: defendant could rely on plaintiffs' Judicial Council form interrogatory answers as an evidentiary basis for its separate statement; despite a request for such information, the interrogatory answers contained no evidence to support a theory of liability on defendant's part; the interrogatory responses, when relied upon by defendant in its separate statement of undisputed facts, were sufficient to shift the burden of proof to plaintiffs pursuant to section 437c, subdivision (o)(2) to demonstrate there was a triable issue concerning the correctness of their claims; and plaintiffs failed to present sufficient evidence to create a triable issue of material fact. In reaching this determination, we conclude that, together, the 1992 and 1993 amendments to section 437c have overruled the prior decision of this division in Barnes v. Blue Haven Pools (1969) 1 Cal. App.3d 123, 126-128 [81 Cal. Rptr. 444] to the limited extent that the opinion bars a defendant from securing a summary judgment premised upon a plaintiff's factually devoid interrogatory answers. Accordingly, because the summary judgment motion should have been granted, we issue our writ of mandate.
II. SCOPE OF ISSUES RAISED BY THE PLEADINGS
The operative pleading is the 229-page first amended complaint which contains causes of action for: intentional misrepresentation; negligent misrepresentation; fraud based on concealment of facts; fraud premised upon a *577 promise to perform and without the intent to do so; conspiracy to defraud; legal and accounting malpractice; fiduciary duty breach; and for an accounting. There are 40 codefendants. Defendant is named in all of the causes of action except in connection with the legal and accounting malpractice claim. Plaintiffs alleged: plaintiffs were investors and limited partners in NMR Investors Fund I, a limited partnership; on October 15, 1985, defendant lent money to United Medical Leasing Company, Inc., a codefendant; the money was lent in connection with the lease of a medical scanner from United Medical Leasing Company, Inc., to the limited partnership of which, as previously noted, plaintiffs were limited partners; as security for the lease, all of the rights, including the authority to repossess the scanner in the event of a default in rental payments, were assigned to defendant; the limited partnership, NMR Investors Fund I, defaulted in payments to the lessor, United Medical Leasing Company, Inc., which meant defendant could lawfully repossess the scanner; and in June 1991, defendant repossessed the scanner after it was abandoned by the limited partnership. The first amended complaint alleged that plaintiffs, the limited partners, were defrauded by: the general partner, NMR Inc.; the general partner's shareholders; an advertising firm; the partnership's accountants and attorneys; various financial advisers to the partnership; certain medical related entities; the lessor of the scanner, United Medical Leasing Company, Inc.; and defendant, the lender who repossessed the scanner. The first amended complaint alleged that misrepresentations were made in connection with a private placement memorandum which was utilized to solicit plaintiffs as investors. The allegations involving defendant were as follows: "[Defendant], a California financial corporation, doing business in the State of California, located at 225 South Lake Avenue, Pasadena, California 90071 and 445 South Figueroa Street, Los Angeles, California 90071, gave advise [sic] and opinions to [NMR Inc., the general partner and NMR Investors Fund I, the limited partnership]. Based on currently available information, plaintiffs are informed and believe and thereon allege that Union Bank participated in the acts, practices, conspiracy, common course of conduct and transactions hereinafter alleged."
III. SUMMARY JUDGMENT MOTION
Defendant moved for summary judgment. As to the fraud causes of action, the grounds of the motion were that defendant neither made any fraudulent representations nor was it a member of a conspiracy to defraud plaintiffs. In support of its motion, defendant relied on plaintiffs' responses to admissions requests and Judicial Council form interrogatories. (§ 2033.5; see Cal. Judges Benchbook, Civil Proceedings Discovery (1994) § 13.9, p. 187; Civil Discovery Practice in Cal. (Cont.Ed.Bar 1988) Interrogatories, § 8.36, pp. 472-473.) Defendant propounded seven separate requests for admissions. *578 Defendant proffered two admissions requests which are pertinent to the fraud issues in the present case. In request number 5, defendant requested that plaintiffs admit as follows, "Admit that [defendant] committed no fraud or deceit upon you." In their verified response to admissions request number 5, plaintiffs refused to admit defendant "committed no fraud or deceit...." Further, in request number 6, defendant requested that plaintiffs admit the following: "Admit that [defendant] did not participate in any conspiracy to defraud you." Plaintiffs likewise refused to admit that defendant did not participate in a fraudulent conspiracy.
In connection with the summary judgment motion, defendant also relied on answers to Judicial Council form interrogatory No. 17.1. Concurrently with the service of the admissions requests, defendant served Judicial Council form interrogatory No. 17.1, which states: "Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: [¶] (a) state the number of the request; [¶] (b) state all facts upon which you base your response; [¶] (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; [¶] (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing." Because plaintiffs refused to unqualifiedly admit defendant neither defrauded them nor participated in a conspiracy to do so, they were required to provide answers to form interrogatory No. 17.1. As to admissions request No. 5 concerning whether defendant had committed fraud upon plaintiffs, they responded pursuant to form interrogatory No. 17.1(b) that all of the facts supporting their denial were as follows: "Plaintiffs believe that Union Bank knowingly and fraudulently took the assignment of all the assets of NMR Investors Fund I to secure the loan it made with United Medical Leasing Company, Inc. [¶] Plaintiffs reserve the right to further respond to this interrogatory." As to admissions request No. 6, which asked whether they unqualifiedly admitted defendant was not a member of a fraudulent conspiracy, plaintiffs gave the following answer to interrogatory No. 17.1(b): "Plaintiffs believe that [defendant] knowingly and fraudulently took the assignment of all the assets of NMR Investors Fund I to secure the loan it made with United Medical Leasing Company, Inc. [¶] Plaintiffs reserve the right to further respond to this interrogatory."
In its separate statement of undisputed facts, defendant cited as evidence plaintiffs' responses to admissions requests Nos. 5 and 6. Defendant likewise relied upon the answers to interrogatory No. 17.1. Also, defendant attached the response to admissions request No. 4 in which plaintiffs admitted defendant "took no inappropriate action in connection with its role in the *579 transactions ..." in plaintiffs' investment in NMR Investors Fund I. Defendant further referred to the documents involved in the transactions, which led to the repossession of the scanner when the limited partnership defaulted on the loan.
Plaintiffs' response to the separate statement of undisputed facts relied upon several declarations which attached documents relating to the loan. The declarations contained statements by investors: concerning disappearance of monies; relating to the seriousness of the financial losses incurred by the investors in NMR Investors Fund I; a belief that defendant was responsible for the losses; and that there were unanswered questions concerning where the money invested in the limited partnership had gone.
The respondent court denied the summary judgment motion.[2] Defendant filed a petition for writ of mandate as permitted by section 437c, subdivision (l). We issued an alternative writ of mandate and the cause was orally argued. (Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223 [23 Cal. Rptr.2d 397, 859 P.2d 96]; Ng v. Superior Court (1992) 4 Cal.4th 29, 35 [13 Cal. Rptr.2d 856, 840 P.2d 961]; Kowis v. Howard (1992) 3 Cal.4th 888, 893 [12 Cal. Rptr.2d 728, 838 P.2d 250].)
IV. DISCUSSION
Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (§ 437c, subd. (c).) We review the trial judge's decision not to grant the summary judgment motion de novo. (Jambazian v. Borden (1994) 25 Cal. App.4th 836, 844 [30 Cal. Rptr.2d 768]; Daniels v. DeSimone (1993) 13 Cal. App.4th 600, 607 [16 Cal. Rptr.2d 615]; Wilson v. Blue Cross of So. California (1990) 222 Cal. App.3d 660, 670 [271 Cal. Rptr. 876].)
Defendant's summary judgment motion was premised on the contention that defendant never made any fraudulent representations to any plaintiff nor *580 was it a member of a conspiracy where such occurred. In support of these contentions, defendant filed a separate statement of undisputed facts which cited the evidence which it contended proved that it was entitled to judgment as a matter of law. (§ 437c, subd. (b); see United Community Church v. Garcin (1991) 231 Cal. App.3d 327, 335-338 [282 Cal. Rptr. 368]; Wilson v. Blue Cross of So. California, supra, 222 Cal. App.3d at p. 671; Blackman v. Burrows (1987) 193 Cal. App.3d 889, 894-895 [238 Cal. Rptr. 642].) As noted previously, defendant's separate statement referred to plaintiffs' admissions responses and form interrogatory answers. Such matters may be relied upon as evidence under the express terms of the summary judgment law which provides, "The motion shall be supported by ... admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken." (§ 437c, subd. (b); Craig Corp. v. County of Los Angeles (1975) 51 Cal. App.3d 909, 914 [124 Cal. Rptr. 621]; see 2 Civil Procedure Before Trial (Cont.Ed.Bar. 1994) § 44.15, p. 44-11; Weil & Brown, Civil Procedure Before Trial (The Rutter Group 1994) § 10:155, p. 10-42; 6 Witkin, Cal. Procedure (3d ed. 1985) Proceedings Without Trial § 292, p. 590; 5 Cal. Practice (1978) Summary Judgment, § 35:6, p. 468.) Those admissions requests and Judicial Council form interrogatory No. 17.1 required plaintiffs to state all of the facts which supported the contention that defendant either made a misrepresentation or was a member of a conspiracy where a coconspirator did so.[3] The only response made by plaintiffs was that they believed defendant took the assignment of assets fraudulently and they reserved the right to further respond to the Judicial Council form interrogatories. Plaintiffs failed to file amended interrogatory answers as permitted by section 2030, subdivision (m).[4]
(1a) Defendant contends that the factually devoid answers to the Judicial Council form interrogatories were sufficient to require plaintiffs to prove their case concerning the alleged misrepresentations and fraudulent conspiracy. Defendant further argues that plaintiffs failed to provide substantial *581 evidence of misrepresentations or a conspiracy in the declarations and documents cited in their opposition separate statement. We agree. Plaintiffs' Judicial Council form interrogatory answers, which contained no facts supporting the existence of misrepresentations or a fraudulent conspiracy, shifted the burden of proof in connection with the summary judgment. Further, plaintiffs failed to provide substantial evidence of deceit on defendant's part or its participation in a fraudulent conspiracy.
In reaching this conclusion, it is necessary we consider the effect of the 1992 and 1993 amendments to section 437c (Stats. 1992, ch. 1348; Stats. 1993, ch. 276) on our prior decision in Barnes v. Blue Haven Pools, supra, 1 Cal. App.3d 123, 126-128, and its Court of Appeal progeny, an issue raised before the respondent court by defendant. In Barnes, this court articulated the rule that has been universally accepted by the Courts of Appeal of this state that a moving defendant cannot secure summary judgment merely by relying on a plaintiff's discovery responses which reveal an absence of evidence of liability or damage. The Barnes decision involved a personal injury action where the complaint contained two causes of action: the first for negligence, and the second for breach of express and implied warranties within the holding of Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 60-64 [27 Cal. Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049]. In Barnes, the defendant cited the plaintiff's interrogatory answers, various deposition transcripts, and several declarations of persons who were present when the accident occurred. Part of the evidence relied upon by the defendant in moving for summary judgment was an interrogatory answer which indicated the plaintiff had no witness to prove there was negligence "`at this time.'" (Barnes v. Blue Haven Pools, supra, 1 Cal. App.3d at p. 126, fn. 1.) Also, the defendant relied upon the deposition of an "expert" who had been retained by plaintiff to inspect the pool. The "expert" had not reached any conclusions "`in regard to any safety factors.'" (Id. at p. 125.) None of the cited evidence proved the allegedly defectively designed pool was safely designed and constructed; rather, the defendant relied on the absence of any evidence in possession of the plaintiff that the pool was negligently designed or constructed. (Id. at pp. 125-127.) Confronted with this summary judgment factual scenario, this court, given the language of the then existing summary judgment statute,[5] held: "At a trial of this case plaintiff would have the burden of proving defendant's negligence on the first cause of action and the *582 existence of a defect within the meaning of the Greenman doctrine on the second. We also assume for the sake of this opinion that plaintiff would be unable to survive a motion for a nonsuit without presenting expert testimony on these issues. That being so, plaintiff would not be entitled to go to the jury, if at the time of trial he comes up with nothing better than was before the court in connection with the defendant's motion for summary judgment. [¶] On the other hand the facts presented by the defendant's papers do not negative negligence. A summary judgment in favor of a defendant is proper `if it is claimed the action has no merit' [citation] and such claim is proved to be correct. There is nothing in the statute which lessens the burden of the moving party simply because at the trial the resisting party would have the burden of proof on the issue on which the summary judgment is sought to be predicated. In such a case, on the motion for summary judgment, the moving party must generally negative the matters which the resisting party would have to prove at the trial. [Citations.]" (Id. at p. 127.)
Our analysis in Barnes was widely accepted by the Courts of Appeal as a correct statement of the moving defendant's burden of proof at the summary *583 judgment stage of litigation.[6] For example, in Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App.4th 27, 38 [9 Cal. Rptr.2d 396], the Court of Appeal cited Barnes as authority and concluded: "[T]he `[d]efendant's burden is to disprove the complaint. It is not enough to simply show that the plaintiff has admitted having "no witnesses" or "no evidence" to back up certain claims (and therefore would be nonsuited if the case went to trial).'" (Accord, Hulett v. Farmers Ins. Exchange (1992) 10 Cal. App.4th 1051, 1057 [12 Cal. Rptr.2d 902]; Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal. App.4th 544, 553 [5 Cal. Rptr.2d 674]; Kerr v. Rose (1990) 216 Cal. App.3d 1551, 1561 [265 Cal. Rptr. 597]; Pena v. W.H. Douthitt Steel & Supply Co. (1986) 179 Cal. App.3d 924, 928-930 [225 Cal. Rptr. 76].) All of these cases were applying the summary judgment law as it was in effect prior to the 1992 and 1993 amendments to section 437c.
However, the 1992 and 1993 amendments to section 437c have legislatively overruled the prior decision of this court in Barnes. Former section 437c, subdivision (n)(2), enacted in 1992 and effective January 1, 1993, added for the first time to the summary judgment law the following statement of a moving defendant's burden of proof which stated in pertinent part: "A defendant ... has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established.... Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action." (Stats. 1992, ch. 1348.) In 1993, section 437c was once again amended and the relevant language in subdivision (n)(2) was moved to subdivision (o)(2), where it presently states in its entirety: "A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Stats. *584 1993, ch. 276.) Other than moving the language concerning shifting the burden of proof from section 437c, subdivision (n)(2) to subdivision (o)(2), the 1993 legislation added the following relevant language which is at issue in this appeal: "The plaintiff ... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action...."
The language in the present section 437c, subdivision (o)(2), providing for shifting the burden of proof if "one or more elements of the cause of action, even if not separately pleaded, cannot be established ...", did not appear in the pre-January 1, 1993, summary judgment law. This language was first inserted in the summary judgment law in the 1992 amendment to former section 437c, subdivision (n)(2). (Stats. 1992, ch. 1348.) In applying section 437c, subdivision (o)(2), we are required to carry out the Legislature's intent. (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826 [25 Cal. Rptr.2d 148, 863 P.2d 218]; Delaney v. Superior Court (1990) 50 Cal.3d 785, 798 [268 Cal. Rptr. 753, 789 P.2d 934].) We look first to the language selected by the Legislature and only review legislative history materials when there is ambiguity in the statute. (Legislature v. Eu (1991) 54 Cal.3d 492, 504 [286 Cal. Rptr. 283, 816 P.2d 1309]; Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal. Rptr. 115, 755 P.2d 299].) Because there is some ambiguity as to the effect of the language, "one or more elements of the cause of action ... cannot be established ..." (ibid.) in the 1992 amendment, which was later reenacted as section 437c, subdivision (o)(2), resort to contemporaneous legislative history materials such as committee reports is appropriate.
The 1992 amendment was introduced on February 11, 1992, as Assembly Bill No. 2616. When originally introduced on February 11, 1992, Assembly Bill No. 2616 did not contain the language in subdivision (n)(2) which in 1993 was moved to subdivision (o)(2). (Assem. Bill No. 2616 (1991-1992 Reg. Sess.) Feb. 11, 1992.) When Assembly Bill No. 2616 first passed the Assembly, the language which later would appear in former section 437c, subdivision (n)(2) was not present at that time. (Assem. Bill No. 2616 (1991-1992 Reg. Sess.) as amended May 13, 1992.) The language in former section 437c, subdivision (n)(2) was first proposed on June 1, 1992, while Assembly Bill No. 2616 was still pending in the Senate Committee on Judiciary. ((Assem. Bill No. 2616 (1991-1992 Reg. Sess.) as amended June 1, 1992.) The first committee report to discuss the language at issue was prepared for an August 18, 1992, hearing before the Senate Committee on Judiciary. The report stated: "The most significant of the proposed changes is set forth in the new subdivision (n) to CCP Section 437c. The provision *585 would establish the burden of proof for a plaintiff and a defendant in a summary judgment motion. It would provide that a plaintiff has met his burden of showing there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists in that cause of action. [¶] A similar rule is proposed for defendants. A defendant would be deemed to have met his burden of showing that a cause of action has no merit if the party shows that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. Once the defendant meets that burden, the burden shifts to the plaintiff to show that a triable issue of fact remains in the cause of action." (See Sen. Com. on Jud. Com. Rep. on Assem. Bill No. 2616 (1991-1992 Reg. Sess.) p. 8.) After discussing the plaintiff's burden under the proposed amendment, the report concluded its discussion of the summary judgment law as follows: "The sponsor points to the federal rules as providing a more equitable standard. Under Federal Rule 56, a party moving for summary judgment is not required to support the motion with affidavits or other similar materials to negate an opponent's claim. (See Celotex Corporation v. Catrett (1986) 477 U.S. 317 [91 L.Ed.2d 265, 106 S.Ct. 2548].) This bill would follow the federal example and require each party seeking a summary judgment to prove up its own case without having to negate claims of the opposition."[7] (See Sen. Com. on Jud. Com. Rep. on Assem. Bill No. 2616, supra, at p. 9.) When Assembly Bill No. 2616 was returned to the *586 lower house for concurrence in Senate amendments, a report prepared by the Assembly Committee of the Floor Coordinator stated, somewhat ambiguously: "Clarifies the burden of proof on summary adjudication and summary judgment motions to codify state law as to the defendant's burden of proof and changes the plaintiff's burden of proof in accordance with the United States Supreme Court's decision of Celotex Corp. v. Catrett, (1986) 477 U.S. 317 [91 L.Ed.2d 265, 106 S.Ct. 2548] by: [¶] a) Providing that a plaintiff has shown that its motion for summary judgment or summary adjudication shall be granted if the plaintiff proves up his or her cause(s) of action. Once the plaintiff has met the initial burden, the defendant has met that burden, [sic] the defendant has the burden to show that there is a triable issue of fact. [¶] b) Providing that a defendant has shown that its motion for summary judgment or summary adjudication shall be granted if the defendant or cross-defendant negates an element of the plaintiff's cause(s) of action or proves up its affirmative defense(s). Once the defendant has met the initial burden, the plaintiff has the burden to show that there is a triable issue of fact." (Assem. Floor Coordinator Rep. on Assem. Bill No. 2616 (Aug. 25, 1992) p. 2.) The foregoing language from the report prepared by the Assembly Floor Coordinator for use when the issue of concurrence in the Senate amendments was before the Assembly, which included the language in former section 437c, subdivision (n)(2), is shrouded in some uncertainty. The language can be read to indicate that the plaintiff's burden of proof was to be that set forth in Celotex Corp. However, Celotex Corp. involved the defendant's burden of proof. Moreover, although the foregoing language from the report suggests that the defendant must "negate" an element of a plaintiff's cause of action, Assembly Bill No. 2616 did not state that the burden rested with the defendant to "negate" a cause of action.[8] Assembly Bill No. 2616 passed both houses of the Legislature unanimously. On September 30, 1992, Governor Wilson signed the amendments to section 437c.
*587 On February 15, 1993, Assembly Bill No. 498 was introduced and it proposed moving the burden of proof language in section 437c, subdivision (n)(2) to subdivision (o)(2). As in the case of the 1992 amendments, there is sufficient ambiguity in Assembly Bill No. 498 to permit review of committee reports so as to determine legislative intent. (Legislature v. Eu, supra, 54 Cal.3d at p. 504; Lungren v. Deukmejian, supra, 45 Cal.3d at p. 731.) However, when originally introduced, proposed section 437c, subdivision (o)(2) did not contain the following language presently in the summary judgment law which states, "The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." This language, which became part of section 437c, subdivision (o)(2) when it was finally enacted, was added as a result of committee actions between February 22, 1993, when the bill was referred to the Assembly Judiciary Committee, and March 30, 1993. On March 30, 1993, the bill was amended in committee to add the language which refers to a responding party's duty to set forth specific facts rather than merely rely on the allegations or denials of the pleadings. We have reviewed the Assembly Judiciary Committee and Senate Committee on Judiciary files and they shed light on why the amendment which contains the language in the last sentence of section 437c, subdivision (o)(2) was introduced.
Prior to the insertion of the language at issue in the last sentence of section 437c, subdivision (o), Assembly Member Jan Goldsmith, the sponsor of Assembly Bill No. 498, was provided with a resolution of the State Bar Conference of Delegates which sought to "overrule cases such as Barn[e]s v. Blue Haven Pools." (Letter of Theresa D. Taylor, Legis. Counsel of State Bar of California to Assembly Member Jan Goldsmith dated Jan. 7, 1993, contained in Sen. Com. on Judiciary file for Assem. Bill No. 498 (1993-1994 Reg. Sess.).) On March 5, 1993, Assembly Member Goldsmith submitted to the Assembly Committee on Judiciary the State Bar resolution which indicated the decision in Barnes v. Blue Haven Pools, supra, 1 Cal. App.3d at page 127, was inconsistent with the federal rule for granting summary judgment in that it permitted the pleadings themselves to preclude the entry of summary judgment. The State Bar resolution had as its express purpose *588 the overruling of Barnes v. Blue Haven Pools, supra, 1 Cal. App.3d at pages 126-128. Accompanying the State Bar resolution given to the Assembly Judiciary Committee by Assembly Member Goldsmith was the Advisory Committee Notes to the 1963 amendment to rule 56(e) of the Federal Rules of Civil Procedure (28 U.S.C.). The Advisory Committee Notes submitted by Assembly Member Goldsmith stated as follows: "The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The Third Circuit doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment is incompatible with the basic purposes of the rule. [Citations.]" Also submitted to the Assembly Committee on Judiciary by Assembly Member Goldsmith was a copy of the Barnes decision. As a result, on March 30, 1993, Assembly Bill No. 498 was amended to add the language appearing in the last sentence of section 437c, subdivision (o)(2) requiring a party responding to a summary judgment motion to rely on facts, not on the pleadings. In other words, before Assembly Member Goldsmith submitted, on March 5, 1993, the State Bar resolution and other materials concerning rule 56(e) of the Federal Rules of Civil Procedure (28 U.S.C.), the language at issue now in the last sentence of section 437c, subdivision (o)(2) was not in Assembly Bill No. 498.
On March 31, 1993, the bill was amended to add the language concerning the responding party's duty to rely on specific facts once the burden of proof shifted. Later, at the April 28, 1993, hearing before the Assembly Committee on Judiciary, the report prepared for that date stated: "Specifies that once the burden shifts, ... the opposing party may not rely `upon the mere allegations or denials of the pleadings' to show that a triable issue of material fact exists but, instead, must `set forth the specific facts showing that a triable issue of material fact exists' as to the cause of action or a defense thereto." (See Assem. Com. on Judiciary Rep. on Assem. Bill No. 498 (1993-1994 Reg. Sess.) p. 1.) On May 10, 1993, Assembly Bill No. 498 was unanimously approved and sent to the Senate.
In the Senate, a hearing was held on June 29, 1993, before the Senate Judiciary Committee. A report prepared for that date contained similar explanatory language as appeared in the Assembly Committee on Judiciary written analysis. However, the Senate report also made specific reference to rule 56 of the Federal Rules of Civil Procedure (28 U.S.C.). The report stated: "Federal Rule of Civil Procedure 56 governs summary judgment. Rule 56(e) specifically requires the opposing party to set forth specific facts showing that there is a genuine issue for trial. The notes of the Advisory Committee on Rules to the United Supreme Court states, that Rule 56(e) was added to overcome a line of cases that impaired the utility of the summary *589 judgment motion. These cases allowed an opposing party to rely on mere allegations or denials contained in the pleadings, thus preventing courts from being able to determine whether there was a genuine issue of fact in existence. According to the Committee, this frustrated the essential purpose of Rule 56, which is to `pierce the pleadings to access the proof in order to see whether there is a need for trial.' [¶] The Advisory Committee opined that Rule 56(e) would more effectively utilize the summary judgment motion by requiring the parties to aver to specifics.... [¶] AB 498 captures the essence of Rule 56(e) by requiring the opposing party to set forth specific facts in opposing a motion. The language adopted by this bill is not Rule 56(e) verbatim, but reflects the specific requirements of California law. However technically different, the substance of each is virtually the same." (See Sen. Com. on Judiciary Rep. on Assem. Bill No. 498 (1993-1994 Reg. Sess.) p. 3.) The report also referred to the 1992 amendment to then existing section 437c, subdivision (n)(2), which in 1993 was in effect, when it noted: "In addition to these similarities, California has taken other steps to move our summary judgment law closer to federal law. AB 2616(Peace) adopted other provisions of Rule 56, requiring each party seeking a summary judgment to prove up its own case without having to negate claims of the opposition." (Sen. Com. on Judiciary Rep. on Assem. Bill No. 498, supra, at p. 4.) As did its Assembly counterpart, the Senate Committee on Judiciary also had before it the State Bar resolution which sought to abrogate the effect of Barnes v. Blue Haven Pools, supra, 1 Cal. App.3d at pages 126-128, as well as a copy of this division's opinion in Barnes. Later, in a report prepared by the Office of Senate Floor Analyses, it was noted, "The purpose of this bill is to clarify the law relating to summary judgment and summary adjudication and to bring it closer to the federal law relating to these same procedures." (See Sen. Rules Com. Rep. on Assem. Bill No. 498 (1993-1994 Reg. Sess.) p. 2.) On July 8, 1993, the bill unanimously passed the Senate with minor unrelated amendments. On July 12, 1993, after concurrence in the Senate amendments, the bill passed the Assembly unanimously and was signed by the Governor on July 30, 1993.
(2) The express language and legislative history of the 1992 and 1993 amendments to section 437c indicate the following. Two separate Legislatures unanimously intended unequivocally to substantially change a portion of California's summary judgment law. Taken together, the 1992 and 1993 amendments to section 437c legislatively overruled this division's holding in Barnes v. Blue Haven Pools, supra, 1 Cal. App.3d at pages 126-128, insofar as it prohibited a summary judgment motion from being granted when a moving defendant merely relies on a plaintiff's factually devoid interrogatory answers. Whatever uncertainty may have existed after the 1992 legislation was approved by the Governor as to the continued viability of Barnes, *590 the purpose of Assembly Bill No. 498 is unmistakable. Both the Assembly and Senate Committees on Judiciary had before them the State Bar resolution which sought to repeal Barnes as well as a copy of the opinion. One of the factors we consider in determining the legislative intent is the "`object in view'" and the problem the Legislature was addressing. (See Walters v. Weed (1988) 45 Cal.3d 1, 10 [246 Cal. Rptr. 5, 752 P.2d 443]; Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 733 [114 Cal. Rptr. 460, 523 P.2d 260].) The Legislature intended that the burden-shifting characteristics of rule 56 of the Federal Rules of Civil Procedure (28 U.S.C.), as interpreted in Celotex Corp. v. Catrett, supra, 477 U.S. at pages 322-327 [91 L.Ed.2d at pages 273-276], were to be applied to California summary judgment motions when a defendant relied on a plaintiff's factually inadequate discovery answers to seek summary judgment. Now, a moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact. The express language of the 1992 and 1993 amendments and the judicially noticed legislative history demonstrate the foregoing was intended by the Legislature.[9]
*591 We recognize that there may be other aspects of the legislatively intended changes resulting from the 1992 and 1993 amendments to section 437c. *592 However, the only issue raised by this petition relates to whether Barnes v. Blue Haven Pools, supra, 1 Cal. App.3d at pages 126-128 required that the summary judgment motion at issue be denied. Our opinion can only be read to apply to the specific issue before the court. (People v. Banks (1993) 6 Cal.4th 926, 945 [25 Cal. Rptr.2d 524, 863 P.2d 769]; People v. Saunders (1993) 5 Cal.4th 580, 592, fn. 8 [20 Cal. Rptr.2d 638, 853 P.2d 1093].) We are not addressing other issues concerning the manner rule 56 of the Federal Rules of Civil Procedure (28 U.S.C.) may apply to California summary judgment motions or the further applicability of Celotex Corp. v. Catrett, supra, 477 U.S. at pages 322-327 [91 L.Ed.2d at pages 275-276] to section 437c as amended in 1992 and 1993. (Cf. Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 301, fn. 4 [24 Cal. Rptr.2d 467, 861 P.2d 1153].)
(1b) Applying the foregoing to the present case, we conclude defendant is entitled to summary judgment. Defendant's separate statement cites facts which prove that the repossession of the scanner took place in accord with the terms of the lending documents; plaintiff's interrogatory responses *593 demonstrate they have no evidence defendant made any fraudulent representations; plaintiffs' interrogatory responses indicate they have no evidence defendant was a member of a fraudulent conspiracy; and plaintiffs admitted defendant had done nothing wrong in connection with the actual lending of the money and repossession of the scanner. This was sufficient to shift the burden of proof to plaintiffs pursuant to section 437c, subdivision (o)(2). (Cf. Celotex Corp. v. Catrett, supra, 477 U.S. at pp. 322-324 [91 L.Ed.2d at pp. 273-275]; Jambazian v. Borden, supra, 25 Cal. App.4th at pp. 843-844, 846, 850, fns. 8, 9.) The facts referred to in plaintiffs' separate statement were insufficient to create a triable issue as to whether defendant was civilly liable for any misrepresentations on its part. As noted previously, plaintiffs' declarations and exhibits demonstrated: money in the NMR Investors Fund I had disappeared; the losses were serious; several plaintiffs thought defendant was liable; and there were unanswered questions concerning why the money was missing. This was insufficient to create a triable issue as to any fraud on defendant's part. To the extent the conclusory declarations could somehow be construed to suggest there was mismanagement of the collection of the moneys due under the terms of the lending agreements or any misconduct in connection with the repossession of the scanner, plaintiffs were barred from creating such a triable issue because of their admission responses. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22 [112 Cal. Rptr. 786, 520 P.2d 10]; Visueta v. General Motors Corp. (1991) 234 Cal. App.3d 1609, 1613 [286 Cal. Rptr. 402].) They admitted defendant took no inappropriate role in connection with the transactions at issue which include administration of the loan collections and repossession of the scanner. Therefore, plaintiffs failed to sustain their burden of proving that the various fraud causes of action had "merit." (§ 437c, subd. (n)(2).) As noted previously, the trial court correctly granted summary issue adjudication on the fiduciary duty claim.
(3) The sole remaining cause of action was for an accounting. The grounds alleged in the accounting cause of action were that: there was a breach of fiduciary duty; the accounts were complicated; and fraud. These are proper grounds for an accounting. (Smith v. Blodget (1921) 187 Cal. 235, 242 [201 P 584] [fiduciary relationship]; Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal. App.3d 1, 14 [135 Cal. Rptr. 915] [complicated accounts when there is a dispute as to whether money is owed]; Fairbairn v. Fairbairn (1961) 194 Cal. App.2d 501, 513 [15 Cal. Rptr. 548] [fraud].) However, as we have concluded, there was no basis for a finding of fraud or breach of a fiduciary relationship. Further, as plaintiffs admitted in their admissions responses, defendant did nothing wrong in terms of administering the loan or seizing the medical scanner. Hence, defendant has proven it engaged in no misconduct and, as a result, plaintiffs have no right to an *594 accounting. (Merrill v. Gordon & Harrison (1929) 208 Cal. 1, 5-6 [279 P. 996] [because defendant did not deprive plaintiff of any profits, no right to accounting]; K. King and G. Schuler Corp. v. King (1968) 259 Cal. App.2d 383, 396 [66 Cal. Rptr. 330], disapproved on another point in Liodas v. Sahadi (1977) 19 Cal.3d 278, 293, fn. 13 [137 Cal. Rptr. 635, 562 P.2d 316] [absence of finding of fraud precludes accounting]; Baxter v. Krieger (1958) 157 Cal. App.2d 730, 732 [321 P.2d 879] [since no moneys due to plaintiff, no right to an accounting]; Caldwell v. Caldwell (1947) 80 Cal. App.2d 378, 382-383 [182 P.2d 258] [absence of misconduct by defendants warranted nonsuit as to plaintiff's accounting cause of action].) There is no right to an accounting where none is necessary. (St. James Church v. Superior Court (1955) 135 Cal. App.2d 352, 359 [287 P.2d 387].) Since defendant owes no money to plaintiffs and did not deprive them of any moneys or the lawful use of the scanner, as a matter of law the accounting cause of action must be dismissed. (See 5 Witkin Cal. Procedure, supra, Pleading, § 769, pp. 215-216.) No California decision holds that the existence of a complicated accounting relationship between parties by itself permits the maintenance of a lawsuit between them when no money is owed or property must be returned. There is no authority for such a proposition and we decline to create such a litigation state of affairs. For the foregoing reasons, we conclude that defendant was entitled to summary judgment and therefore a writ of mandate must issue.
IV. DISPOSITION
A petition for writ of mandate is to issue directing the respondent court to set aside its order entered on July 6, 1994, denying the summary judgment motion. A new order is to be entered granting the summary judgment motion. Defendant, Union Bank, is to recover its costs incurred in connection with these extraordinary writ proceedings jointly and severally from plaintiffs.
Grignon, J., and Armstrong, J., concurred.
A petition for a rehearing was denied February 1, 1995, and the petition of real parties in interest for review by the Supreme Court was denied March 23, 1995. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
NOTES
[1] All future statutory references are to the Code of Civil Procedure.
[2] The respondent court granted the summary issue adjudication motion as to the cause of action for breach of fiduciary duty. The court determined that no fiduciary relationship existed between defendant, a lender exercising its rights to foreclose on a medical scanner, and the limited partners of a partnership defaulting on the payment of rent. There is no issue concerning the correctness of the respondent court's order granting summary issue adjudication because no mandate petition has been filed by plaintiffs to set it aside. In any event, the respondent court was correct. No fiduciary relationship existed. (Kim v. Sumitomo Bank (1993) 17 Cal. App.4th 974, 979 [21 Cal. Rptr.2d 834]; Peterson Development Co. v. Torrey Pines Bank (1991) 233 Cal. App.3d 103, 119 [284 Cal. Rptr. 367]; Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal. App.3d 1089, 1093, fn. 1 [283 Cal. Rptr. 53]; Copesky v. Superior Court (1991) 229 Cal. App.3d 678, 690 [280 Cal. Rptr. 338]; Price v. Wells Fargo Bank (1989) 213 Cal. App.3d 465, 477 [261 Cal. Rptr. 735]; Mitsui Manufacturers Bank v. Superior Court (1989) 212 Cal. App.3d 726, 732-733 [260 Cal. Rptr. 793]; Lawrence v. Bank of America (1985) 163 Cal. App.3d 431, 437 [209 Cal. Rptr. 541].)
[3] Plaintiffs had a duty to answer the form interrogatories as completely and straightforwardly as possible given the information available to them. Section 2030, subdivision (f)(1) requires interrogatory answers to meet the following standard of responsiveness: "Each answer in the response shall be as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible." The duty to truthfully and fully respond has been described as follows, "Parties must `state the truth, the whole truth, and nothing but the truth in answering written interrogatories' [citation]...." (Guzman v. General Motors Corp. (1984) 154 Cal. App.3d 438, 442 [201 Cal. Rptr. 246]; Deyo v. Kilbourne (1978) 84 Cal. App.3d 771, 783 [149 Cal. Rptr. 499].)
[4] Section 2030, subdivision (m) states, "Without leave of court, a party may serve an amended answer to any interrogatory that contains information subsequently discovered, inadvertently omitted, or mistakenly stated in the initial interrogatory." (See Civil Discovery Practice in Cal., supra, Interrogatories, § 8.82, p. 507.)
[5] In 1969, at the time Barnes decision was filed, section 437c provided: "In superior courts and municipal courts if it is claimed the action has no merit, or that there is no defense to the action, on motion of either party, after notice of the time and place thereof in writing served on the other party at least 10 days before such motion, supported by affidavit of any person or persons having knowledge of the facts, the answer may be stricken out or the complaint may be dismissed and judgment may be entered, in the discretion of the court unless the other party, by affidavit or affidavits shall show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact. A judgment so entered is an appealable judgment as in other cases. The word `action' as used in this section shall be construed to include all types of proceedings. The word `answer' as used in this section shall be construed to include counterclaim and cross-complaint. The filing of a motion under this section shall not extend the time within which a party must otherwise file an answer, demurrer or motion to strike. [¶] The affidavit or affidavits in support of the motion must contain facts sufficient to entitle plaintiff or defendant to a judgment in the action, and the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and each affidavit shall show affirmatively that affiant, if sworn as a witness, can testify competently thereto. [¶] The affidavit or affidavits in opposition to said motion shall be made by the plaintiff or defendant, or by any other person having knowledge of the facts, and together shall set forth facts showing that the party has a good and substantial defense to the plaintiff's action (or to a portion thereof) or that a good cause of action exists upon the merits. The facts stated in each affidavit shall be within the personal knowledge of the affiant, shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto. When the party resisting the motion appears in a representative capacity, such as a trustee, guardian, executor, administrator, or receiver, then the affidavit in opposition by such representative may be made upon his information and belief. [¶] If it appear that such defense applies only to a part of the plaintiff's claim, or that a good cause of action does not exist as to a part of the plaintiff's claim, or that any part of a claim is admitted or any part of a defense is conceded, the court shall, by order, so declare, and the claim or defense shall be deemed established as to so much thereof as is by such order declared and the cause of action may be severed accordingly, and the action may proceed as to the issues remaining between the parties. No judgment shall be entered prior to the termination of such action but the judgment in such action shall, in addition to any matters determined in such action, award judgment as established by the proceedings herein provided for. A judgment entered under this section is an appealable judgment as in other cases." (Stats. 1965, ch. 1877, § 1, pp. 4330-4331.)
[6] The California Supreme Court never adopted the Barnes analysis that when a moving defendant relies on a plaintiff's discovery responses to demonstrate there is no evidence an essential allegation in the complaint is provable, summary judgment may not be entered. We have been unable to find any case where the Supreme Court considered this precise issue.
[7] The reference to Celotex Corp. v. Catrett (1986) 477 U.S. 317, 322-328 [91 L.Ed.2d 265, 273-277, 106 S.Ct. 2548] is of material consequence to the issue of whether Barnes v. Blue Haven Pools, supra, 1 Cal. App.3d at pages 126-128 survived intact the enactment of the 1992 and 1993 amendments to section 437c. In Celotex, after permitting a plaintiff time to utilize the discovery provisions of federal law, the defendant moved for summary judgment. The evidence relied upon by the defendant consisted of the plaintiff's interrogatory answers. Those answers indicated that the plaintiff had no evidence linking the defendant's allegedly defective product with the decedent. The United States Supreme Court held that the reliance on the interrogatory answers was sufficient to shift the burden of proof to the plaintiff to produce evidence of such exposure to the defective product. The United States Supreme Court held: "In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of a nonmoving party's case necessarily renders all other facts immaterial.... [¶] Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim. On the contrary, Rule 56(c), which refers to `the affidavits, if any' (emphasis added), suggests the absence of such a requirement." (Celotex Corp. v. Catrett, supra, 477 U.S. at pp. 322-323 [91 L.Ed.2d at pp. 273-274]; original italics.) Professor Charles Wright of the University of Texas synthesized the Celotex Corp. holding as follows, "Justice Rehnquist ... suggested that the power of the court to enter summary judgment sua sponte supports the conclusion that the moving party ... need not produce evidence, but simply can argue that there is an absence of evidence by which the nonmovant can prove his case." (10A Wright, Federal Practice & Procedure (1994 supp.) § 2720, p. 10.) Simply stated, Barnes cannot be squared with Celotex Corp. If the Legislature intended to apply Celotex Corp. to a situation where a moving defendant relies upon the plaintiff's inability to prove an essential element of the case, then Barnes has been legislatively overruled. As will be noted, we conclude Barnes is no longer of any legal vitality insofar as it would preclude defendant from securing a summary judgment in the present case given both the 1992 and 1993 amendments to section 437c.
[8] When Assembly Bill No. 2616 was before the Legislature, the judicially declared rule was that a moving defendant had a duty to negate an essential element of an adversary's cause of action. (See Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal. Rptr. 122, 762 P.2d 46]; Barnes v. Blue Haven Pools, supra, 1 Cal. App.3d at p. 127.) The fact that the Legislature chose not to utilize the term "negate" reflects an intention to change the long-standing duty of a moving defendant. However, we expressly do not reach the issue in this case as to whether the Legislature in 1992 intended to adopt the Celotex Corp. test and, if so, to what extent. Rather, the sole issue before us relates to whether Barnes v. Blue Haven Pools, supra, 1 Cal. App.3d at pages 126-128, is a valid statement of California law. Our decision that Barnes is not to the extent it prevents a defendant from securing summary judgment based on a plaintiff's factually devoid discovery response is premised upon our reading of the statutory language and judicially noticed legislative history materials prepared in connection with both the 1992 and 1993 amendments to section 437c.
[9] The only firm contradictory legislative history is a letter inserted in the Assembly Daily Journal dated September 8, 1993, by Assembly Member Peace, the sponsor of the 1992 amendment, which states: "It has come to my attention that there is some confusion as to the burden of proof allocated to parties on motions for summary judgment as a result of my AB 2616 chaptered last year. The allocation of the burden of proof pre AB 2616 is set forth in cases such as Chevron, U.S.A. v. Superior Court, (1992) 4 Cal. App.4th 544 [5 Cal. Rptr.2d 674] and Nymark v. Heart Federal Savings and Loan Association, (1991) 231 Cal. App.3d 1089 [283 Cal. Rptr. 53]. These decisions unfairly required plaintiffs not only to prove up their own case but to negate all affirmative defenses as well. [¶] AB 2616 adopted in a modified form the rule of Celotex Corp. v. Catrett, (1986) 477 U.S. 317 [91 L.Ed.2d 265, 106 S.Ct. 2548] and overrode pre-existing California law by providing that a plaintiff may obtain a summary judgment if it proves up the allegations of its complaint. Post AB 2616, a plaintiff no longer has to negate affirmative defenses in order to obtain a summary judgment. [¶] AB 2616 did not change the applicable burden for a defendant to obtain a summary judgment. [¶] Therefore, the suggestion that post AB 2616 a defendant can now meet its burden of proof simply by pointing out that the nonmoving party has no evidence, as is allegedly the case under Celotex, is simply not true. AB 2616 merely codified the already existing burden of proof for defendants without change. [¶] Earlier this year, the Governor signed into law AB 498 (Goldsmith-Peace), Chapter 276, Statutes of 1993, makes crystal clear that the intent behind AB 2616 was to provide that a plaintiff may obtain a summary judgment if it proves upon the allegations of its complaint. [¶] I trust that this puts to rest any questions as to the intent behind AB 2616 as to summary judgments." (Assem. J. (1993-1994 Reg. Sess.) p. 4190.)
We may not rely on the September 8, 1993, letter as a statement of legislative intent. The California Supreme Court has held that a letter printed on motion in the Senate or Assembly Journal is admissible on the issue of legislative intent under these circumstances: "`In construing a statute we do not consider the motives or understandings of individual legislators who cast their votes in favor of it. [Citations.] Nor do we carve an exception to this principle simply because the legislator whose motives are proffered actually authored the bill in controversy [citation]; no guarantee can issue that those who supported his proposal shared his view of its compass.' [Citation.] A legislator's statement is entitled to consideration, however, when it is a reiteration of legislative discussion and events leading to adoption of proposed amendments rather than merely an expression of personal opinion. [Citations.] ... The statement of an individual legislator has also been accepted when it gave some indication of arguments made to the Legislature and was printed upon motion of the Legislature as a `letter of legislative intent.' [Citation.]" (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699-701 [170 Cal. Rptr. 817, 621 P.2d 856]; accord, Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 377 [20 Cal. Rptr.2d 330, 853 P.2d 496]; Delaney v. Superior Court, supra, 50 Cal.3d at pp. 800-801, fn. 11.) For example, in the case of In re Marriage of Bouquet (1976) 16 Cal.3d 583, 589-590 [128 Cal. Rptr. 427, 546 P.2d 1371], the Supreme Court held that a letter printed in the Senate Journal on motion of a Senator as a "`letter of legislative intent'" could be considered in construing a statute for two reasons. First, the letter referred to debate which could illuminate the interpretation of the statute intended by the Legislature. Second, it was a letter of the author printed on motion in the Senate Journal. The Supreme Court required the letter refer to arguments presented to legislators before it could be considered. (California Teachers Assn. v. San Diego Community College Dist., supra, 28 Cal.3d at pp. 700-701; In re Marriage of Bouquet, supra, 16 Cal.3d at p. 590.) In the present case, the September 8, 1993, letter does not meet the standard of admissibility set forth in the foregoing California Supreme Court authority. The letter does not reflect the arguments presented to the legislators and hence, does not illuminate what was their intent. (Ibid.)
Even if we were to consider it, we conclude that the September 8, 1993, letter, written after the adoption of the 1993 amendment to section 437c, when weighed against the other evidence of legislative intent, is insufficient to support the conclusion that Barnes v. Blue Haven Pools, supra, 1 Cal. App.3d at pages 126-128, is still a valid statement of California law insofar as it prohibits a defendant from securing a summary judgment based upon a plaintiff's factually incomplete discovery responses. The standard of review of a letter purporting to reflect legislative intent when it conflicts with other documents reflecting a different design was set forth by the California Supreme Court as follows: "To say that the letter [of legislative intent printed on motion in the Senate Journal] properly bears upon the issue of legislative intent is not to hold that it necessarily concludes that issue. In many cases the indicia of intent are in conflict, and the proper construction of the statute requires us to impute weight to expressions in accord with their probative value. Thus, a motion to print a letter of legislative intent commands less respect than a formal resolution of legislative intent. Likewise, an individual legislator's recount of the argument preceding the passage of a bill probably merits less weight than extensive committee reports on the bill or a formal record of the legislative debates." (In re Marriage of Bouquet, supra, 16 Cal.3d at pp. 590-591, italics added.) The point of the September 8, 1993, letter is that the holding of Celotex Corp. v. Catrett, supra, 477 U.S. at pages 322-326 [91 L.Ed.2d at pages 273-276], applies to a summary judgment motion filed by a plaintiff but not by a defendant. However, the extensive committee reports indicate the Legislature, as a result of the 1992 and 1993 legislation, intended to revise the law of summary judgment as it related to the burden of proof of both plaintiffs and defendants who are moving parties. The only evidence that indicates a defendant's burden was unaffected by Assembly Bill No. 2616 is the vaguely worded Assembly report prepared after the Senate passed the legislation on August 27, 1992. However, that report: conflicts with the Senate analysis; insofar as it suggests a defendant must "negate" an element of the plaintiff's case is at odds with the statutory language; misapplies the Celotex Corp. opinion to a plaintiff's summary judgment motion; and to the extent it infers in a somewhat uncertain manner that Celotex Corp. only applies to a plaintiff's motion, the report is not corroborated by the Legislative Counsel's Digest. (See Legis. Counsel's Dig., Assem. Bill No. 2616 (1992-1993 Reg. Sess.) ch. 1348.) Of additional consequence is the letter to the Governor of Assembly Member Peace at the time of passage of Assembly Bill No. 2616 in 1993, requesting approval of the legislation, which states: "Finally, AB 2616 also revises the burden of proof on summary judgment motions to conform to Federal Rule of Civil Procedure 56. See: Celotex Corporation v. Catrett, (1986) 477 U.S. 317 [91 L.Ed.2d 265, 106 S.Ct. 2548]. This should result in more motions being granted as summary judgment is a much more favored remedy in the federal courts." (Letter of Assembly Member Peace to Governor Wilson dated Sept. 3, 1992.) No mention was made in the September 3, 1992, letter to the Governor that the Assembly Bill No. 2616 would only apply Celotex Corp. to a plaintiff's summary judgment motion.
Whatever uncertainty may have existed concerning the viability of Barnes v. Blue Haven Pools, supra, 1 Cal. App.3d at pages 126-128, as it related to a defendant relying on a plaintiff's discovery responses, was resolved in 1993. Neither the Assembly nor Senate Committees on Judiciary reports indicated Celotex would apply to a plaintiff but not to a defendant. More critically, the committees were both reacting to a State Bar resolution calling for the legislative repeal of Barnes. (See Assem. Com. on Judiciary Rep. on Assem. Bill. No. 498, supra, pp. 1-2; Sen. Com. on Jud. Com. Rep. on Assem. Bill No. 498, supra, pp. 1-4.) The reports, as set forth in the body of this opinion, indicate that the purpose of the bill was to legislatively overrule Barnes and require a responding party to "set forth the specific facts showing that a triable issue of material fact exists as to that cause of action...." (§ 437c, subd. (o)(2).) Accordingly, when we weigh all of the evidence concerning legislative intent, we conclude the Legislature, as a result of both the 1992 and 1993 legislation, intended to abrogate Barnes insofar as it prohibited a moving defendant from securing a summary judgment based upon factually inadequate discovery responses of a plaintiff. Respected California commentators are in accord with our analysis. (See, Weil & Brown, Cal. Practice Guide, supra, §§ 10:241-10:241.4, pp. XX-XX-XX-XX.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263152/ | 27 F.Supp. 702 (1939)
LUMBERMEN'S MUT. CASUALTY CO.
v.
McIVER et al.
No. 297-RJ.
District Court, S. D. California, Central Division.
June 7, 1939.
C. F. Jorz, of Los Angeles, Cal., for plaintiff.
James J. McCarthy, of Santa Monica, Cal., for defendant Loraine Johnson.
Carl B. Sturzenacker, of Los Angeles, Cal., for defendants Jeff Clark and Leotia E. McIver.
*703 JENNEY, District Judge.
This is an action for declaratory relief. Requisite jurisdictional requirements of diversity of citizenship and amount in controversy are present. The insurance company seeks a judicial declaration determining its non-liability upon one of its policies; and asks to be exonerated from the duty of defending a personal injury suit brought against its assured, and also from liability to satisfy any possible judgment in that suit.
The stipulated facts are these: The Lumbermen's Mutual Casualty Company issued a policy of automobile liability insurance to Leotia McIver and Jeff Clark upon an automobile owned by the former. On January 26, 1939, and during the effective period of the policy, this automobile was involved in an accident at Fourteenth and Montana Streets in Santa Monica, California. At that time the automobile was driven through a stop sign into the intersection, and while traveling on the wrong side of the street knocked down and severely injured Loraine Johnson, a pedestrian who was crossing the street in the cross-walk.
A suit, predicated upon negligence, was instituted in the Superior Court of Los Angeles county by Loraine Johnson against the defendants McIver and Clark. Demand was made by said defendants upon the insurance company to defend the suit in the Superior Court on their behalf and to assume liability for any judgment which might be rendered against them therein. This the insurance company refused to do and instituted the present action for declaratory relief, seeking judicial sanction for its claim of non-liability.
The complaint in the case at bar sets out the policy in question as an exhibit and refers particularly to a certain exclusionary clause contained therein. This clause provides that the policy does not apply while the automobile is being operated "by any person in violation of any state, federal or provincial law as to age applicable to such person." The complaint further alleges that the automobile in question at the time of the accident was being operated by defendant Gracie Vaughn, a minor of the age of fourteen years, four months, who was not licensed to operate or drive a motor vehicle in the State of California.
Answers were filed by the various defendants controverting these allegations of the complaint as to who was driving the car at the time of the accident. The other facts, as above stated, were agreed upon by written stipulation.
Counsel for the minor contends that even if Gracie Vaughn were driving the vehicle and without a license, these facts would not be a violation of that clause in the policy forbidding operation "in violation of any state * * * law as to age". He argues that since in California a minor fourteen years of age may be licensed to drive under certain circumstances, the operation by Gracie Vaughn, even though possibly unlawful, and violative of the state law as to driver's licenses, was not violative of the particular state law governing age of drivers referred to in the policy.
Section 257 of the Vehicle Code of California provides:
"No operator's license shall be issued to any person under the age of sixteen years except that an operator's license may be issued to a person fourteen years of age but less than sixteen years of age upon application as required of other minors under section 350 hereof accompanied by a statement of reasons satisfactory to the department given and signed by the persons or person other than the minor required under said section to sign and verify such application.
"The department may impose such restrictions applicable to the licensee as the department may determine to be appropriate to assure the safe operation of a motor vehicle by the licensee." St.Cal. 1935, p. 129.
This section has been construed in connection with exactly the same exclusionary clause in an insurance policy by the District Court of Appeal for the State of California in Brown v. Travelers Ins. Co., 87 P.2d 377; hearing in Supreme Court denied. The argument of counsel here was considered there and rejected. The reasoning of the state court and the decision finally reached is most persuasive, and this court will follow it. Erie Ry. Co. v. Tompkins, 302 U.S. 671, 58 S.Ct. 50, 82 L.Ed. 518.
It is admitted by the insurer that the policy was duly issued, that the premium was paid, that the accident occurred during the effective period of the policy, and that it is claimed by the insured that the accident occurred at a time when insured was operating the automobile covered by *704 the policy in a manner substantially complying with the provisions thereof. It is apparent therefore that insurer's contention that an unlicensed minor was operating the vehicle in violation of the state law and within the meaning of the exclusionary clause constitutes a special defense. Had this been a suit by the injured party directly against the insurer, such a contention would have been pleaded as a special defense. The fact that this is a suit for a declaration of non-liability, brought by the insurer as plaintiff, does not alter the essential nature of the contention. It still amounts to a special defense.
It is well established both on principle and authority that when the existence of the policy at the time of the loss has been admitted and compliance therewith has been alleged, the burden of proving affirmative matter constituting a special defense rests upon the insurance carrier. Aetna Ins. Co. v. Kennedy, 301 U.S. 389, at page 395, 57 S.Ct. 809, 81 L.Ed. 1177; Hartford Fire Ins. Co. v. Morris, 6 Cir., 27 F.2d 508; Murdie v. Maryland Casualty Co., D.C.Nev., 52 F.2d 888, appeal dismissed, 9 Cir., 57 F.2d 1081; Kimball Ice Co. v. Hartford Fire Ins. Co., 4 Cir., 18 F.2d 563, 52 A.L.R. 799. The burden of proving the special defense in the case at bar accordingly rests on the Lumbermen's Mutual Casualty Company.
This conclusion is re-enforced by an examination of the pleadings. It is to be noted that the insurer's allegation consists, not of a statement that Jeff Clark was not operating the automobile, but of an affirmative assertion that Gracie Vaughn was driving it. The burden of proving that fact rests on the one asserting it.
The Vehicle Code of California provides as follows:
"`Driver' is a person who drives or is in actual physical control of a vehicle." Section 69, p. 98, St.Cal.1935.
"`Operator' is a person, other than a chauffeur, who drives or is in actual physical control of a motor vehicle upon a highway." Section 70, p. 98, St.Cal.1935.
The one question of fact before the court therefore is: Was Gracie Vaughn driving or in actual physical control of the motor vehicle at the time of the impact?
At the trial Jeff Clark testified to the following facts: There were three persons in the front seat of the automobile, with Gracie Vaughn on the left, behind the wheel. He was in the middle and Gracie's sister, Maxine, was on his right. He sat close to Gracie, with his back toward Maxine and was teaching Gracie to drive the car. The lesson had been carried on for about twenty minutes prior to the accident and the same seating arrangement had prevailed during the entire period. Prior to that time Clark himself had been at the wheel driving the party about town. About eighty feet from the intersection at which the accident occurred and while the car was going about twenty-five miles an hour, he said to the girl, "Put your brakes on, Gracie". The brakes, when applied, caught just for a moment and then released. Gracie hollered "They won't hold". He glanced at the floor-board and saw that Gracie's foot was on the brake pedal which was depressed to the floorboard. The car was proceeding westward down an incline toward the intersection and the speed of the car was being gradually accelerated. At the street intersection several cars were stopped in compliance with the boulevard stop sign there located. Clark's car was traveling nearer the center line of the street than the curb line. About fifteen or twenty feet behind the cars that were stopped at the boulevard, Clark realized he might bump into them. He grabbed the steering wheel, first with his left hand and then with his right, and swerved the car in a southerly direction so as to miss the automobiles in front of him. The southerly side of the street appeared to be clear from all directions. However, Loraine Johnson, who was crossing the street in a southerly direction in front of the stopped cars, and who had proceeded about two-thirds of the way across the street, was struck by the left front fender of the car.
Just prior to the impact, and as soon as he saw the pedestrian, Clark removed his left hand from the wheel, reached over Gracie's lap under the steering post, and grabbed the emergency brake. The emergency brake on that car came out from under the cowling and was operated by pulling the lever backwards. The brake lever did not lock automatically unless it was pulled straight back toward the driver. If it was pulled to the right it would not lock automatically, although its brake pressure would be applied.
Clark thereafter kept his left hand on the emergency brake lever until the car was finally stopped. At the time of the *705 impact with Loraine Johnson the car was still traveling about twenty-five miles an hour, having picked up speed because of the incline down which it was proceeding. Clark did not remember definitely whether or no Gracie took her hands off the wheel when he took hold of it; he does remember, however, that at the time he grabbed it she had her hands on the lower part of the wheel and does not remember that she continued that hold. In any event he had no interference from Gracie's arms or body in operating the car. After Clark grabbed the wheel and until the car was finally stopped, Gracie did nothing and was terribly excited. After the impact Clark continued to hold onto the emergency brake with his left hand and, with his right hand, steered the car across the intersection and onto the right-hand side of the street, stopping in the middle of the next block near the curb line. As he thought the foot brake would not work, he stopped the car with the emergency brake.
Gracie Vaughn testified to the following facts: She knew nothing about driving an automobile at the time she began to take the lesson, twenty minutes prior to the accident. During that twenty minutes, she had been driving under Mr. Clark's immediate supervision, making several stops and starts, the car operating perfectly. The seating arrangement and the circumstances leading up to the accident were substantially as indicated in the testimony of Mr. Clark. Approximately forty feet behind the cars which were stopped at the intersection Mr. Clark reached over her lap and grabbed the wheel and the emergency brake. He held onto them both until the car was stopped at the right hand curb line in the next block and they alighted. After Mr. Clark took hold of the steering wheel, she did not attempt to turn the car in any direction or to operate it. In answer to the question as to whether or not she had done anything else in operating the automobile after Clark seized the wheel and swerved the car, Gracie testified: "I can't remember, it happened so quick I don't know; I don't think I did. I don't remember whether the motor was still going. I can't remember what part of the wheel Mr. Clark took hold of; and I can't remember whether I continued to hold onto the wheel or not. I can't remember what I did."
In regard to the foot-brake and clutch pedal, Gracie testified at first that she remembered pressing on both pedals before discovering that the brake would not work, and that at the time of the accident they were both depressed. Upon cross-examination she admitted frankly that she really did not know whether her feet were on the brake and clutch pedals at the time of the impact. She was much excited and could not remember what she did.
The court is inclined to believe that both Gracie and Mr. Clark tried to tell on the stand a straight-forward story as to what occurred. It is inclined to resolve any discrepancies between the two accounts, in favor of Mr. Clark's testimony as against the testimony of a fourteen year old child. The minor, evidently very much flustered, disclosed no certain knowledge of what happened after Mr. Clark grabbed control. She apparently and perhaps quite naturally lost her head. In such circumstances the court feels that the testimony of an experienced man, of mature years, who evidently was cool and collected, and who was thinking and acting quickly and efficiently, is more reliable and credible.
The court therefore finds as a fact that Gracie Vaughn was not driving or in actual physical control of the motor vehicle at the time of the accident; that she was activating none of the operating devices of the automobile; that her role was a passive one, and she in no way interfered with the operating activities of Mr. Clark. While not actually in the driver's seat, Clark was in full control of such operating devices as he deemed expedient to use in the emergency. The court further finds that Mr. Clark was actually in physical control of the motor vehicle at the time of the impact.
Effort was made by counsel for the insurance company to impeach the testimony of Mr. Clark by introducing in evidence two written statements, admittedly signed by Clark at the instigation of a representative of the insurance company six and ten days, respectively, after the accident. Mr. Clark testified substantially as follows: These statements were written out by the insurance company's representative and he, Clark, signed them without reading them over carefully. He understood that they were simply informal reports of the accident and felt at the time that he should "play ball" with the insurance company as he was in the real estate and insurance business himself. For these reasons he *706 was not careful to correct the written statements when they were submitted to him. These written statements contained assertions of fact which were disproved at the trial. Some, at least, of these misstatements were so at variance with the proven facts and the probabilities as to indicate to the court that they were inspired by an over-zealous insurance company representative. In any event the written statement that Gracie was driving the car at the time of the accident was repudiated by Clark. The court feels that the testimony of Clark at the trial revealed the true facts and that the written statements were inaccurate, and in some respects untrue.
Counsel for the insurer insists that this case is controlled by the decision in State Farm Mutual Automobile Ins. Co. v. Coughran, 303 U.S. 485, 58 S.Ct. 670, 82 L.Ed. 970, because Gracie Vaughn and Jeff Clark were jointly operating the vehicle. An examination of that opinion discloses an express finding of joint operation. The evidence there showed that a minor in the driver's seat was actually employing all of the operating devices except the steering wheel which had been seized by the insured's wife. No such finding can be made on the evidence in this case. There is no convincing evidence that Gracie Vaughn activated any of the operating devices of the vehicle. The fact that there may have been available to Clark certain devices which he did not use, or that he did not do certain things which he might have done, is not material here. His failure to blow the horn to warn pedestrians, or to use the clutch or foot-brake assuming that the latter was functioning may or may not have amounted to negligence, but such failure of Clark cannot prove that Gracie Vaughn was the operator of the car. Her mere presence in the front seat behind the driving wheel is not determinative. The holding of a small child in the lap of a driver, alone could not be held to be proof of joint operation; and Gracie's presence in the driver's seat was no more efficacious for driving purposes than the child in the lap.
In any event, the State Farm Mutual Auto Insurance Co. opinion is not controlling here, because of the condition of the pleadings in the case at bar. The complaint alleges sole operation by Gracie; it does not allege joint operation. Had it done so, the question of joint control might have assumed more than academic interest. Counsel for the insurer had ample opportunity to amend. The reason for his failure so to do will not be inquired into by this court, which has no desire to dictate an attorney's trial strategy.
It is well established law that the granting of a declaratory judgment lies considerably within the discretion of the court, after mature consideration of all of the circumstances of the case. The remedy of declaratory relief, while created by statute, is one based largely on equitable considerations and the view is now well established that where the court has heard all of the facts and has considered the legal relationships of the parties, it may, in its sound discretion, refuse to render a declaratory judgment, if it seems to the court that the basis for relief has been insufficiently established. Borchard, Declaratory Judgments, pp. 99, 107 et seq., and cases there cited; 16 Am.Juris. 287 and cases there cited; Ohlinger's Fed.Practice, Vol. 3, p. 775. In view of the court's findings in this case, a declaration that the plaintiff insurance company is excused from the obligations of its policy contract is hereby denied.
Judgment for the defendants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263158/ | 31 Cal.App.4th 51 (1994)
36 Cal. Rptr.2d 769
HARTFORD ACCIDENT AND INDEMNITY COMPANY, Plaintiff and Appellant,
v.
SHEILA GONZALEZ, as Clerk, etc., Defendant and Respondent.
Docket No. B080414.
Court of Appeals of California, Second District, Division Six.
December 20, 1994.
*53 COUNSEL
Davis & Drum and Joel Drum for Plaintiff and Appellant.
James L. McBride, County Counsel, and Robert R. Orellana, Assistant County Counsel, for Defendant and Respondent.
OPINION
GILBERT, J.
An attorney wishes to file a complaint in the Ventura Municipal Court. The clerk will not accept the complaint for filing unless the attorney first submits a completed "case information sheet" required by a local court rule.
We are called upon to answer a question, universal to the legal profession, "Can they do that?"
Here we offer our answer to this weighty inquiry "Sure."
The Hartford Accident and Indemnity Company (Hartford) appeals from the order denying its petition for writ of mandate to compel respondent, Sheila Gonzalez, as Clerk of the Ventura Municipal Court (clerk), to file its complaint without a case information sheet.
FACTS
The clerk refused to file the underlying complaint because Hartford failed to provide a case information sheet pursuant to local rule 3.10 (Mun. Ct. Ventura County).[1] The two-page case information sheet requires that the case caption and certain blanks be filled in, and that various boxes be checked. The completed sheet informs the court whether plaintiff requests: fast track, mediation, and a jury trial. It also gives the court a brief description of the nature of the case and the relief sought. Page 2 of the sheet explains that the information is requested "... in order that this case may *54 be properly managed pursuant to the Delay Reduction Rules mandated by the Legislature and the Judicial Council."
Giving due regard for the intellectual complexity of the task it imposes, it should take no longer than a few minutes to complete.
Hartford filed the instant petition to challenge the requirement of completing a case information sheet before the clerk would file its complaint. The trial court denied the petition and this appeal ensued.
DISCUSSION
(1a) Hartford contends that because no statute specifically requires it to provide a case information sheet, the clerk may not impose such a requirement pursuant to a local rule. Local rule 3.10 states, in pertinent part, that "[n]o case shall be filed without a completed Case Information Sheet."
Hartford relies on the argument that requiring a case information sheet conflicts with Code of Civil Procedure section 412.10 which states that "[a]fter payment of all applicable fees, the plaintiff may have the clerk issue ... summons for any defendant." In its reply brief, Hartford also asserts that requiring the case information sheet also conflicts with Code of Civil Procedure section 411.10 which states, "[a] civil action is commenced by filing a complaint with the court."
We disagree. "[O]ur primary task in construing a statute is to determine the Legislature's intent. [Citation.] `The court turns first to the words themselves for the answer.' [Citations.]" (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724 [257 Cal. Rptr. 708, 771 P.2d 406]; Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1127 [26 Cal. Rptr.2d 231, 864 P.2d 502].) "Significance should be given ... `to every word, phrase, sentence and part of an act.' [Citation.]" (Mercer v. Perez (1968) 68 Cal.2d 104, 112 [65 Cal. Rptr. 315, 436 P.2d 315].) "`[L]egislation should be construed so as to harmonize its various elements without doing violence to its language or spirit." (Hartford Fire Ins. Co. v. Macri (1992) 4 Cal.4th 318, 326 [14 Cal. Rptr.2d 813, 842 P.2d 112].) "The literal meaning of the words of a statute may be disregarded" (Silver v. Brown (1966) 63 Cal.2d 841, 845 [48 Cal. Rptr. 609, 409 P.2d 689) if such a reading would frustrate the "`manifest purposes' of the legislation as a whole." (People v. Boyd (1979) 24 Cal.3d 285, 294 [155 Cal. Rptr. 367, 594 P.2d 484].)
In section 4 of the Code of Civil Procedure, the Legislature provided, in pertinent part that, "its provisions, ... are to be liberally construed, with a *55 view to effect its objects and to promote justice." Local rule 3.10 is meant to accomplish this objective, in accordance with the provisions of the Trial Court Delay Reduction Act. (Gov. Code, § 68600 et seq., the Act.)
Government Code section 68070, subdivision (a) provides, in pertinent part that, "[e]very court may make rules for its own government and the government of its officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council." Government Code section 68607 states that, "[i]n accordance with this article [the Act] and consistent with statute, judges shall have the responsibility to eliminate delay in the progress ... of litigation, to assume and maintain control over the pace of litigation, to actively manage the processing of litigation from commencement to disposition, and to compel attorneys and litigants to prepare ... all litigation without delay, from the filing of the first document invoking court jurisdiction to final disposition...."
Among other things, "[t]he judges ... shall, consistent with the policies of this article: ... (c) Establish procedures for early identification of cases within the program ...." and "(d) Establish procedures for early identification and timely and appropriate handling of cases...." (Gov. Code, § 68607.)
Government Code section 68612 provides, in pertinent part that, "[j]udges shall, ... to the maximum extent feasible develop and publish the procedures, standards and policies which will be used in the program.... The procedures, standards, and policies to be used in the program shall be filed, distributed, and maintained pursuant to Section 68071 [regarding local rules] and the California Rules of Court, and shall also be published for general distribution."
These sections require municipal courts to adopt and publish rules of court, such as local rule 3.10, to enable the court to reduce delay in the adjudication of cases. Other statutes require the Judicial Council to study and report the recordkeeping practices in trial courts, and to collect data relating to court administration and to the timely disposition of cases. These statutory provisions are also consistent with the adoption and implementation of local rule 3.10. (See Gov. Code, §§ 68511.4, 68513, 68603, 68604.)
(2) As our Supreme Court held in Mann v. Cracchiolo (1985) 38 Cal.3d 18, 28 [210 Cal. Rptr. 762, 694 P.2d 1134], "`"Local court rules and policies have the force of procedural statutes, so long as they are not contrary to *56 legislative enactments. [Citations.]"'" In International Union of Operating Engineers v. Superior Court (1989) 207 Cal. App.3d 340, 343 [254 Cal. Rptr. 782], the Court of Appeal held it proper for "... local rules [to] control the timing of judicial challenges over the provisions of section 170.6 [concerning disqualification of judges for asserted bias]" even though case law seemed to require immediate challenges to judges assigned for "all purposes" to a case. (Id. at pp. 348-349.) The court noted that, "[t]here is no specific provision in section 170.6 about assignments to a judge for `all purposes.'" (Id. at p. 348.)
(3) The Legislature determined "... to grant wide procedural latitude to the project trial courts in their development of the rules and procedures to implement the Act." (International Union of Operating Engineers v. Superior Court, supra, 207 Cal. App.3d at p. 350.) The Act requires active judicial management to "... aggressively monitor and manage litigation from the filing of the first pleading until final disposition." (Ibid.)
Such broad authority was given to project courts to fashion local rules appropriate to carrying out the purpose of the Act, including ones imposing "`... procedural requirements in addition to those authorized by statute....'" (International Union of Operating Engineers v. Superior Court, supra, 207 Cal. App.3d at pp. 351-352.) It is immaterial that an amendment to the Act supporting this rule was promulgated during the time that the Act was in the project stage, and that it was later repealed, because "The Legislature regarded this not as a change in the law but merely declaratory of existing law under the Act." (Id. at p. 352.) (1b) As in International, the instant local rule is a procedural one consistent with the Act. The rule does not conflict with statutory provisions. (Id. at p. 353.)
The cases of Hock v. Superior Court (1990) 221 Cal. App.3d 670 [270 Cal. Rptr. 579] and Iverson v. Superior Court (1985) 167 Cal. App.3d 544 [213 Cal. Rptr. 399], are distinquishable from the instant case. In Hock, the Court of Appeal held that a local rule requiring leave of court before substitution of counsel "irreconcilably conflicts" with Code of Civil Procedure section 284. (Hock, supra, at p. 672.) In Iverson, the court of appeal held that a local rule which requires motion papers to be filed at least five court days before hearing is inconsistent with Code of Civil Procedure section 1005 which just requires filing five (calendar) days in advance of a hearing. (Iverson, supra, at pp. 546, 548.)
*57 Accordingly, the order is affirmed. Costs to respondent.
Stone (S.J.), P.J., and Yegan, J., concurred.
*58
*59
NOTES
[1] A copy is attached to our opinion as exhibit A. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263159/ | 27 F.Supp. 541 (1939)
UNITED STATES
v.
CITY OF SALAMANCA.
No. 2254.
District Court, W. D. New York.
May 11, 1939.
*542 *543 George L. Grobe, U. S. Atty., of Buffalo, N. Y., and C. C. Daniels, Sp. Asst. to Atty. Gen., for plaintiff.
George H. Ansley and G. Sydney Shane, both of Salamanca, N. Y., for defendant.
KNIGHT, District Judge.
The United States of America brings this suit for and on its own behalf, and on behalf and as trustee and guardian of the Seneca Nation of Indians, and on behalf of Leona (Pierce) Kenjockety, a member of the said Indian Nation, to set aside a deed of a lot on the Allegany reservation and in the City of Salamanca, New York, sold by such city for non-payment of taxes, and to enjoin further assessment of taxes thereon.
The complaint alleges, among other things, that the Allegany-Cattaraugus tribe of Seneca Indians is under the guardianship of the United States; that at all times it has maintained its tribal relations and kept its property separate from the State of New York and other tribes; that by virtue of certain treaties entered into between the Six Nations, of which it was and is a member, and the United States, it is entitled to the free use and enjoyment of all the tribal lands within the Allegany reservation, including the lands in suit; that Leona (Pierce) Kenjockety is a member of the Allegany-Cattaraugus band of the Seneca Nation and is entitled to the use and enjoyment of the lands in question under and by virtue of the laws and customs of said nation; and that without rightful authority the defendant has attempted to affix a lien upon said lot through the sale thereof for the non-payment of certain municipal taxes.
The defendant moves to dismiss the complaint upon the grounds, in effect, that the United States is not authorized by law to bring the action; that it has not legal capacity to sue; and that the court lacks jurisdiction.
Upon this motion the material allegations of the complaint must be deemed to be true. If the complaint alleges facts sufficient to show that the action may be maintained, the court has jurisdiction. Article III, Section 2 of the Constitution of the United States, U.S.C.A., and Title 28 U.S.Code, section 41, 28 U.S.C.A. § 41 (Judicial Code, section 24, as amended).
The objection that no diversity of citizenship is shown must be dismissed. Such diversity is not required.
The first question to determine is what authority, if any, the United States has over the tribe in question. The Seneca Nation of Indians was a component part of the Iroquois Indian Confederacy, sometimes called the Five Nations and later the Six Nations. The Allegany-Cattaraugus tribe of Indians was a part of the Seneca Nation. The hereditary lands of the Iroquois were in what is now the State of New York, but through their supremacy in arms and political acumen they extended their territory much beyond the limits of that state and came to be the most powerful of Indian tribes. The stubborn resistance of these Indians ultimately secured recognition of their claims to independence and territorial rights in treaties with France and England.
Trade treaties were negotiated with some of the colonies separately and with several of them acting together. After the Revolutionary War the terms of peace between England and the United States contained no provision with reference to the Indians, but shortly after the Treaty of Peace the Federated states entered into the treaty of 1784 with the Six Nations, 7 Stat. 15. Such treaty, the first made by the Federated government with the Six Nations, recognized that the Senecas and other tribes of the Six Nations were under the protection of the United States; fixed the boundaries of lands in which these tribes were to be secure in possession and extinguished the Indian claims to certain lands outside of New York. Any doubt as to whether under the Articles of Confederation certain rights over the Indians were reserved to the states was removed by the adoption of the Constitution. Such Constitution expressly gave to Congress power to regulate commerce with the Indian tribes. Article I, Sec. 8(3), U.S.C.A. Const. The Constitution further provided that all treaties were to be made by the President "with the Advice and Consent of the Senate," Article II, Sec. 2(2), and prohibited any state from entering into any treaty. Article I, Sec. 10(1). Article VI, *544 Clause 2 provided that "Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land." By this Constitution it was intended to "give the whole power of managing those affairs [Indian] to the government about to be instituted" and to omit "those qualifications which embarrassed the exercise of it as granted in the confederation." Cherokee Nation v. State of Georgia, 5 Pet. 1, 30 U.S. 1, 18, 19, 8 L.Ed. 25. Dissatisfaction arose over the treaty of 1784, and the treaty of 1789, 7 Stat. 33, was entered into. This treaty confirmed to the Six Nations the lands which they then inhabited, described in both that treaty and the treaty of 1784. In 1794, 7 Stat. 44, still another treaty was made enlarging to a small extent the lands to be held by the Senecas and also making the first provision for the payment of annuity to the Six Nations. By these two last-mentioned treaties the occupancy of the land therein described was granted the Senecas free of the operation of state laws. The United States contracted never to disturb the Indians in the free use and enjoyment of such lands.
New York in 1786 entered into a convention agreement with Massachusetts by which it proposed to grant to that state the preemption right to purchase some 6,000,000 acres in the western part of New York, saving a mile strip along the upper part of the Niagara River, and including all of the Cattaraugus-Allegany reservation. In 1796 Robert Morris acquired from Massachusetts this preemption right. In 1796 and later in 1802 Federal statutes were enacted which in effect prohibited the purchase of any lands or the leasing of any lands from the Indians without the approval of the United States. By the Treaty of the Big Tree (7 Stat. 601) September 15, 1797, the Senecas with the approval of the representatives of the Federal government ceded to Robert Morris 4,000,000 acres of the aforesaid tract, excepting, however, 200,000 acres reserved for certain reservations. Later Robert Morris transferred his rights therein to David A. Ogden for the Ogden Land Company. When the Senecas sought to repudiate their grant, the controversy was settled by the Treaty of 1844, the limits of the Cattaraugus-Allegany reservation being definitely fixed. This reservation is described as a tract about 30 miles in length, 1½ miles in width and containing some 30,469 acres.
When the Allegany reservation was laid out, it was considered of little value. This estimate was soon changed by the extension of railroads through it to the west. Construction of these railroads was purportedly authorized by an Act of Legislature of the State of New York, May 12, 1836, Laws 1836, c. 316. This Act permitted the use of these lands for railroad purposes, but it provided that they could be used for no other purpose, and that the fee should not vest in the railroads. The building of the railroads naturally brought about the growth of settlements and villages along the lines. Thus the City of Salamanca developed around a railway center. The land for these developments was leased from the Indians. These leases at first were taken largely without Federal authority and were held to be invalid by the state courts. Buffalo, R. & P. R. Co. v. Lavery, 1894, 75 Hun 396, 27 N.Y.S. 443; Baker v. Johns, 1886, 38 Hun 625; Ryan v. Knorr, 1880, 19 Hun 540. The State of New York recognized this invalidity and petitioned Congress to ratify such leases. Large investments had been made in reliance upon them, and Congress answered this call for relief in 1875 by legalizing certain leases and providing for further leasing under certain conditions, and later in 1890 by providing for renewals of the terms for 99 years. The lease rentals are paid to a United States Indian Agent and by him distributed to the Indians.
While the Six Nations do not constitute a "foreign" nation as that term is ordinarily used, they are recognized as separate political communities authorized to administer their own internal affairs. The authority in the United States to make treaties with these Indians is declared by the Supreme Court as "co-extensive with the power to make treaties with foreign nations." United States v. Forty-three Gallons of Whiskey, 93 U.S. 188, 197, 23 L.Ed. 846. Speaking of the Cherokee Nation, in Worcester v. State of Georgia, 6 Pet. 515, 561, 8 L.Ed. 483, and what was said there is applicable here, the court said: "The Cherokee nation, then, is a distinct community, occupying its own territory * * *. The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States," and in The Kansas Indians, 5 Wall. 737, 757, 18 L.Ed. 667, the court said: "As long as the United States recognizes their national *545 character they [Indians] are under the protection of treaties and the laws of Congress, and their property is withdrawn from the operation of State laws."
It thus appears that the Iroquois Nation of Indians, from the time of the appearance of the first white settlers, continuously asserted their right to certain lands occupied by them. The French and English claimed it by right of discovery and conquest. Out of these contentions came recognition of the Indian rights within certain reserves. These rights have been guaranteed by this government by its treaties with the Indians and by its laws. It follows as a sequence that the duty rests upon the government to see that the Indians are secure in these possessions. Vide also Peters v. Malin, C.C., 111 F. 244; United States v. Boylan, 2 Cir., 265 F. 165; Lowe v. Fisher, 223 U.S. 95, 32 S.Ct. 196, 56 L.Ed. 364; Cherokee Nation v. Hitchcock, 187 U.S. 294, 23 S.Ct. 115, 47 L.Ed. 183; Heckman v. United States, 224 U.S. 413, 32 S.Ct. 424, 431, 56 L.Ed. 820.
The nature of the relationship between the United States and these Indians by reason of these legal obligations is that of a guardian toward a ward and from this relationship "sprang obligations to the fulfilment of which the national honor has been committed." Heckman v. United States, supra. The "relation was that of a native claiming and receiving the protection of one more powerful." Worcester v. Georgia, supra. By reason of the "very weakness and helplessness" of the Indians "there arises the duty of protection, and with it the power." United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 1114, 30 L.Ed. 228. "Certain is it that as the United States as guardian of the Indians had the duty to protect them from spoliation and, therefore, the right to prevent their being illegally deprived of the property rights conferred * * *" by law. United States v. Board of Com'rs of Osage County, 251 U.S. 128, 40 S.Ct. 100, 102, 64 L.Ed. 184. A long line of decisions of the Supreme Court commencing with Worcester v. State of Georgia, supra, down to Carpenter v. Shaw, 280 U.S. 363, 50 S.Ct. 121, 74 L.Ed. 478, has defined the relation of the Indian tribes, including the Senecas, as wards of the United States. The United States has never relinquished its jurisdiction, Heckman v. United States, supra; People ex rel. Kennedy v. Becker, 241 U.S. 556, 557, 36 S.Ct. 705, 60 L.Ed. 1166, and its jurisdiction is exclusive. United States v. Boylan, supra.
The State of New York through its legislation and the decisions of its courts has recognized the jurisdiction of the Federal government. People ex rel. Cusick v. Daly, 212 N.Y. 183, 105 N.E. 1048, Ann. Cas.1915D, 367; Patterson v. Council of Seneca Nation, 245 N.Y. 433, 157 N.E. 734; Seneca Nation v. Christie, 126 N.Y. 122, 27 N.E. 275; Seneca Nation of Indians v. Appleby, 196 N.Y. 318, 89 N.E. 835; Woodin v. Seeley, 141 Misc. 207, 252 N.Y. S. 818.
The United States has an interest arising out of this relation of guardianship which gives it the right to sue to enforce its obligations and protect the Indians. "During the continuance of this guardianship, the right and duty of the nation to enforce by all appropriate means the restrictions designed for the security of the Indians cannot be gainsaid." Heckman v. United States, supra. As was said in United States v. Minnesota, 270 U.S. 181, 46 S.Ct. 298, 301, 70 L.Ed. 539: "Its [U. S.] interest arises out of its guardianship over the Indians, and out of its right to invoke the aid of a court of equity in removing unlawful obstacles to the fulfillment of its obligations, and in both aspects the interest is one which is vested in it as a sovereign."
The United States has the right to maintain suits in its own courts to enforce its obligations to the Indians. United States v. Boylan, supra; United States v. Fitzgerald, 8 Cir., 201 F. 295; Heckman v. United States, supra; United States v. Rickert, 188 U.S. 432, 23 S.Ct. 478, 47 L. Ed. 532; Minnesota v. Hitchcock, 185 U. S. 373, 22 S.Ct. 650, 46 L.Ed. 954; United States v. Gray, 8 Cir., 201 F. 291. The court in United States v. Inaba, D.C., 291 F. 416, 419, in referring to section 24 of the Judicial Code, 28 U.S.C.A. § 41, supra, said: "That the United States has the right in its own courts to bring such suits as may be necessary and appropriate for the protection of its Indian wards cannot be doubted." This is so even though the Indian himself could bring the action. United States v. Board of Commissioners of Grady County, 10 Cir., 54 F.2d 593; United States v. Dewey County, D.C., 14 F.2d 784; Board of Com'rs of Tulsa County v. United States, 10 Cir., 94 F.2d *546 450; United States v. Chehalis County, D. C., 217 F. 281; and cases hereinbefore cited.
Leona (Pierce) Kenjockety acquired the lot in question from her mother under the tribal laws and customs of the Seneca Nation of Indians, of which Nation both were members. The tribal relation has never been changed. The right of inheritance is controlled by the laws, usages and customs of the tribe. Jones v. Meehan, 175 U.S. 1, 20 S.Ct. 1, 44 L.Ed. 49. The allotment did not dissolve the tribal relations, United States v. Nice, 241 U.S. 591, 36 S.Ct. 696, 60 L.Ed. 1192, nor has the granting of citizenship terminated this status. United States v. Boylan, supra. Fidelia Pierce owned the lands in question when the Congressional Act of 1875 became law. 18 Stat. 330. This provided that "nothing in this section shall be construed to authorize the taxation of any Indian, or the property of any Indian not a citizen of the United States." Section 8. There is nothing seen in this or any other Act of Congress showing the intent to abrogate the provisions of treaties of 1789 and 1794. Under the Constitution these treaties are the supreme law of the land, and the obligations thereunder can be released only by concurrence of both parties.
While we are concerned here only with the right of the government to bring this suit, it is to be said that the laying of any tax by the state or by the municipality is an interference with the rights of the tribes on account of which action by the United States is justified. Act of 1875, supra. Neither the land nor the occupancy are taxable. Were this not so the land or the right to use it could be taken from the Indian. Kansas Indians, supra; Indian Territory Oil Co. v. Oklahoma, 240 U.S. 522, 36 S.Ct. 453, 60 L.Ed. 779; Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S. Ct. 216, 47 L.Ed. 299; United States v. Apple, D.C., 262 F. 200, and United States v. Board of Com'rs of Osage County, supra. It is to be also noted that the New York State Statute of 1857, p. 71, specifically exempts the Allegany-Cattaraugus reservation from the assessment of any tax "so long as said reservations remain the property of the Seneca nation." The premises, though they are within the municipality, are in the "reservation" and nothing has changed the tribal right of the Senecas so far as concerns their ownership of property within the tribe.
Defendant urges that the Act of March 3, 1871, Rev.St. Section 2079 (16 Stat. 566), 25 U.S.C.A. § 71, abolished negotiations by treaty with all Indian tribes and that the Act of February 19, 1875, 18 Stat. 330, superceded and modified all prior treaties made with the Seneca Nation of Indians, "to the extent of the provisions therein contained." The Act of March 3, 1871, expressly excepts from its provisions treaties theretofore made. Were this exception not included the United States could abolish or change a treaty without the approval of the Indian tribe with whom made. It is not seen that the Act of 1875 has any bearing in connection with the Act of 1871. As heretofore noted, it provides for the leasing of certain lands within the reservation of the Seneca Nation, for the collection of rent, and further that the State of New York should have certain authority in connection with the villages laid out on leased land. It also contains the provision hereinbefore noted that the right of the state to lay out highways, build bridges and provide for municipal laws and regulations within such villages shall not be construed to authorize the taxation of any Indian.
The case of People of State of New York ex rel. Kennedy v. Becker, 241 U.S. 556, 557, 36 S.Ct. 705, 60 L.Ed. 1166, cited by defendant, has no bearing since it did not involve reservation lands and the same is to be said with reference to United States ex rel. Pierce v. Waldow, D.C., 294 F. 111, 114, where the question was the authority of the Peace Makers Court to decree the surrender of land. The court in that case said: "The paramount authority of the federal government over them [Indians] is generally conceded, but the government has frequently recognized the right of the state to deal with Indians within its boundary." The last statement is quite true. Following the adoption of the Constitution by the Seneca Nation of Indians in 1848, the state passed numerous statutes relative to the administration of affairs upon the Seneca reservation. With these the federal government has acquiesced, but the state has seemingly recognized the lack of authority to tax Indian lands since it has never imposed any tax or enacted any statute authorizing the imposition of any tax upon such lands.
The motion to dismiss the complaint must be denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263175/ | 31 Cal.App.4th 763 (1995)
37 Cal. Rptr.2d 404
URETHANE FOAM EXPERTS, INC., Cross-complainant, Cross-defendant and Appellant.
JOHN LATIMER, Cross-defendant, Cross-complainant and Respondent.
Docket No. E011760.
Court of Appeals of California, Fourth District, Division Two.
January 19, 1995.
*764 COUNSEL
MacLachlan, Burford & Arias and Christopher D. Lockwood for Cross-complainant, Cross-defendant and Appellant.
No appearance for Cross-defendant, Cross-complainant and Respondent.
*765 OPINION
DABNEY, Acting P.J.
This case concerns the validity of an ex parte trial and default judgment against a defendant following an order allowing withdrawal of counsel for the defendant that did not comply with the mandatory procedures established in the California Rules of Court.[1]
Plaintiff First California Property and Casualty Insurance Company (First California) filed a complaint on July 12, 1989, alleging that its insured, cross-complainant John Latimer, had hired defendant Urethane Foam Experts, Inc. (Urethane) to repair a roof at a hotel and restaurant complex in Palm Springs. The contract called for payment to Urethane of $6,500. The complaint alleged that during the course of the repairs, Urethane left the roof open and exposed to the rain, and damages to the building and lost rental income resulted. First California paid for the repairs and then brought this suit in subrogation.
Urethane filed an answer and cross-complained against Latimer for sums due on the contract. Latimer filed a cross-complaint alleging damage exceeding that reimbursed by his insurer. Urethane filed an answer to the cross-complaint.
On May 18, 1992, Urethane's counsel of record moved to withdraw as counsel of record on the ground of nonpayment of bills. The court signed an order on June 11, 1992, granting the motion. The order stated that counsel was authorized to withdraw and that counsel should give notice to Urethane. The order stated, "The motion of attorneys Leonard A. Bock and Scott N. Harlow for an order of this court permitting each of them to withdraw as attorneys for defendant/cross-defendant, having come on regularly for hearing, [¶] IT IS HEREBY ORDERED that Leonard A. Bock and Scott N. Harlow be and are authorized to withdraw as attorneys for defendant/cross-defendant URETHANE FOAM EXPERTS, and that said attorneys shall give notice to said defendant at 732 Williams Road, Palm Springs, Ca. 92262, their telephone number being (619) 323-4196." The record does not indicate that the order was served on anyone.
On June 12, 1992, First California's counsel served a "notice of ruling and trial setting." The notice stated that the motion to withdraw had been granted and the court had set trial for July 6, 1992. The notice was mailed directly to Urethane.
On July 2, 1992, Urethane's former counsel served by mail on Urethane a form entitled "notice of attorney's withdrawal." However, the notice did not *766 contain any of the mandatory language of rule 376 concerning the client's obligations and the risks of failing to obtain new representation.
On July 6, 1992, the court conducted a trial and awarded judgment to First California in the amount of $85,899 and judgment to Latimer in the amount of $285,997. The court also awarded costs and prejudgment interest on both judgments. The judgment in favor of First California was entered on July 13, 1992, and notice of entry of the judgment was served on Urethane on July 21, 1992. The judgment in favor of Latimer was entered on July 16, 1992, and notice of entry of the judgment was served on Urethane on July 23, 1992.
On September 21, 1992, Urethane filed a notice of appeal as to both judgments. However, on November 24, 1992, the court dismissed as untimely the appeal as to the judgment in favor of First California.
DISCUSSION
Urethane contends the trial court did not comply with the procedures specified in the California Rules of Court for the withdrawal of attorneys from representation.[2]
Rule 376(d) states, "The order relieving counsel shall be served on the client and on all other parties in the manner specified in subdivision (c) for service of the notice. The order shall state the last known address and telephone number of the client which shall be the address and number of record for that party subject to Code of Civil Procedure section 1011(b). The order shall inform the client that failure to take appropriate action may result in serious legal consequences and the client might want to seek legal assistance. The order shall inform a corporate client that (1) it may participate in the action only through an attorney, (2) it retains all the obligations of a litigant, and (3) failure to appoint an attorney may lead to an order striking its pleadings or entry of its default." (Italics added.)
(1) Here, the court's order failed to inform Urethane that failure to act could result in serious legal consequences or to advise Urethane to seek legal assistance. The order also failed to inform Urethane, a corporation, that it could participate in the action only through an attorney, that it had continuing obligations as a litigant, and that entry of a default judgment against it was possible if it did not obtain legal representation.
Rule 376 was clearly designed to protect a client's rights when its counsel of record seeks to withdraw. Rule 376 requires the court to inform a party of *767 the consequences that may result from failure to obtain substitute counsel. Here, the court did not discharge this duty. Hence, the court erred in allowing counsel of record to withdraw without advising Urethane of the consequences of failure to obtain new counsel. We therefore conclude that the order was ineffective, and the court erred in permitting counsel of record to withdraw without giving proper advice to Urethane.
The court's error led to a trial at which Urethane did not appear and the entry of judgment against Urethane in favor of Latimer in the amount of $285,997 plus costs and prejudgment interest.
(2) Code of Civil Procedure section 594, subdivision (a) provides that a trial may not take place unless the adverse party was given at least 15 days' notice. This requirement is mandatory and jurisdictional; a judgment entered following a trial conducted in violation of the requirement is void. (Irvine National Bank v. Han (1982) 130 Cal. App.3d 693, 697 [181 Cal. Rptr. 864]; Isherwood v. Hyrosen Properties, Inc. (1987) 194 Cal. App.3d Supp. 33 [240 Cal. Rptr. 157].)
(3) Here, First California's counsel did send notice of the trial date more than 15 days in advance of the trial. However, the notice was sent to a party that had not received adequate notice of the withdrawal of its attorney; the notice was therefore ineffective. The judgment must be reversed.
DISPOSITION
The judgment is reversed. Appellant shall recover costs on appeal.
Hollenhorst, J., and Bigelow, J.,[*] concurred.
NOTES
[1] All further references to rules are to the California Rules of Court.
[2] Latimer did not file any respondent's brief.
[*] Retired judge of the Los Angeles Superior Court sitting under assignment by the Chairperson of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263186/ | 27 F.Supp. 108 (1939)
SLOAN
v.
APPALACHIAN ELECTRIC POWER CO.
District Court, S. D. West Virginia.
March 29, 1939.
R. G. Lilly, of Charleston, W. Va., for plaintiff.
J. B. Meek, of Huntington, W. Va., for defendant.
E. Paul Williams, of Ashland, Ky., for intervener.
HARRY E. WATKINS, District Judge.
Plaintiff, a resident of Kentucky, instituted this action against defendant, a resident of West Virginia, to recover $15,000 damages for personal injuries sustained in West Virginia. The matter is now before me upon motion of the Employers' Liability Assurance Corporation to intervene as a party plaintiff under Rule 24(a) and (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
Plaintiff was employed in the State of Kentucky by Catlettsburg, Kenova and Ceredo Water Company and was injured in the course of his employment while temporarily in West Virginia. He alleges that his injuries, a severe electric shock, were caused by the negligence of the defendant power company in the maintenance of its power lines. The water company carried an insurance policy with the insurance company, whereby the latter agreed to carry or adjust any workman's compensation claims which would arise against the water company. Plaintiff made claim for his injuries to the water company. This claim was accepted and is being paid by the insurance company. The insurance company has paid plaintiff $12.48 per week since the date of injury and will continue to pay him for such time as specified under the Kentucky Compensation Act (Ky.St. § 4880 et seq.), including medical expense not to exceed $400. It asks to intervene as a party plaintiff in order that such expenditures may be recovered out of any judgment against the power company. The plaintiff resists such motion.
The insurance company bases its right of subrogation upon Section 4890 of Baldwin's 1936 Revised Edition, Kentucky Statutes. That statute provides as follows: *109 "§ 4890. Injuries caused by third persons. Whenever an injury for which compensation is payable under this act shall have been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employe may at his option either claim compensation or proceed at law by civil action against such other person to recover damages, or proceed both against the employer for compensation and such other person to recover damages, but he shall not collect from both, and if compensation is awarded under this act either the employer or his insurance carrier, having paid the compensation or having become liable therefor, shall have the right to recover in his or its own name or that of the injured employe from the other person in whom legal liability for damages exists not to exceed the indemnity paid and payable to the injured employe. (March 23, 1916, c. 33, p. 354, § 9; as amd. March 22, 1922, c. 50, p. 167, § 2.)"
This statute has been fully construed by the Supreme Court of Kentucky in Berry, et al. v. Irwin, et al., 224 Ky. 565, 6 S.W.2d 705. There suit was brought by the employe against a negligent third party. The insurance company which had paid compensation was permitted to intervene, and allowed to recover the indemnity it had paid, out of the judgment against the third person.
Under Section 4888 of the Kentucky Statutes, employers who hire employes within Kentucky to work in whole or in part outside the state, may agree in writing with such employes to exempt from the operation of the Kentucky Compensation Act, any injuries received outside the state. In the absence of such agreement the act provides that the remedies provided thereunder shall be exclusive as regards injuries received outside the state upon the same terms and conditions as if received within the state. Here there was no such agreement and the Kentucky Compensation Act is applicable.
Rule 24(a) of the Federal Rules of Civil Procedure allows intervention as a matter of right when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; under Rule 24(b) permissive intervention is allowed when an applicant's claim or defense and the main action have a question of law or fact in common.
Under either of these rules this insurance company should be permitted to intervene here. In that manner effect can be given to the Kentucky law which allows the insurance company indemnity it pays out of any judgment which may be rendered for plaintiff. It does not appear that such intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Instead it will permit the just and speedy settlement of the entire controversy in one action.
Plaintiff says that since the accident happened in West Virginia, the West Virginia law should govern this question of intervention, and that in West Virginia an employer has no right of subrogation against a third person who negligently injures an employe for which injury the employe receives compensation. I can not agree that the West Virginia law controls this question.
It is true that the law of West Virginia, where the accident occurred, determines the question of negligence, but the law of Kentucky determines the rights of the parties under plaintiff's contract of employment. The contract of employment was entered into in Kentucky, and the provisions of the Kentucky Compensation Act became a part of that contract of employment, so that the insurance company's right of subrogation is not only statutory but contractual.
Plaintiff himself has recognized the applicability of the Kentucky Compensation Act by making claim and receiving compensation thereunder. The rights of the parties to that contract of employment must be enforced in accordance with the Kentucky law, irrespective of the place where the accident occurred or the place where suit is instituted. The motion to intervene is granted.
Counsel may submit an appropriate order in accordance with the conclusion reached. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263192/ | 31 Cal.App.4th 702 (1995)
38 Cal. Rptr.2d 15
AMERICAN ASSOCIATION OF WOMEN et al., Plaintiffs and Respondents,
v.
BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY et al., Defendants and Appellants; LETICIA A NETWORK et al., Interveners and Appellants.
Docket No. B072439.
Court of Appeals of California, Second District, Division Seven.
January 17, 1995.
*703 COUNSEL
Fernando C. Gomez, Lee R. Rydalch and Linda S. MacAllister for Defendants and Appellants.
Elizabeth Guillen, Vibiana Andrade, Manuel A. Romero, Susan E. Brown, Robert Rubin, Diane Chin, Ignatius Bau, Peter D. Roos and Irma D. Herrera for Interveners and Appellants.
*704 Richard L. Knickerbocker and Alan C. Nelson for Plaintiffs and Respondents.
OPINION
STOEVER, J.[*]
Plaintiffs filed their complaint and petition for mandamus and injunctive relief seeking to compel defendant board of trustees of the California State University to follow Education Code sections 68050 and 68062, subdivision (h). The indicated Education Code sections relate to undocumented aliens establishing residency for purposes of determining applicability of resident or nonresident tuition. Plaintiffs' action was a taxpayer suit pursuant to Code of Civil Procedure section 526a.
Interveners filed demurrers, motions to strike, motions to transfer the cause to Alameda County, and, ultimately, answers to the complaint.
The trial court overruled the demurrers, denied the motion to strike, denied the motions to transfer, and issued a writ of mandate compelling defendant to comply with Education Code sections 68050 and 68062, subdivision (h), and enjoining defendant and respondent from violating said code sections.
Defendant and interveners appeal.
CHRONOLOGY OF FACTS AND EVENTS
In 1983, the Legislature amended Education Code section 68062 by adding subdivision (h): "(h) An alien, including an unmarried minor alien, may establish his or her residence, unless precluded by the Immigration and Nationality Act (8 U.S.C. 1101, et seq.) from establishing domicile in the United States."
In 1985, the Alameda County Superior Court, in Leticia A. v. Board of Regents of the University of California (No. 588982-4) (Leticia A.) found (1) the policy of determining residency on terms other than those applied to United States citizens is unconstitutional pursuant to article I, section 7, subdivision (a) of the California Constitution; (2) enjoined the California State University to determine the residence status of undocumented aliens in the same manner and on the same terms as United States citizens; and (3) *705 enjoined the California State University from establishing California residency on terms different from a United States citizen for any semester or term from and after the date of entry of judgment. Leticia A. was a taxpayer suit pursuant to Code of Civil Procedure section 526a. California State University did not appeal.
In November 1990, the Court of Appeal, Second District (Div. Two), filed its opinion in Regents of University of California v. Superior Court (1990) 225 Cal. App.3d 972 [276 Cal. Rptr. 197] (review den.), more commonly referred to as the Bradford decision. The court held that Education Code section 68062, subdivision (h) was constitutional on its face and as applied; that Education Code section 68062, subdivision (h) precludes undocumented alien students from qualifying as residents of California for tuition purposes; and that the unappealed Alameda County Superior Court decision was not binding on the Los Angeles County Superior Court.
In May 1992, the Alameda County Superior Court filed a "Clarification of Order," apparently intending to reconcile or clarify its 1985 Leticia A. judgment with the Bradford decision. The Alameda County Superior Court exhaustively (sixteen and one-half pages) explained its 1985 ruling and the factual basis therefor. Then, it stated its disagreement (one-half page) with the Court of Appeal Bradford decision, on the grounds that the Bradford court did not make the same exhaustive factual considerations and findings as it (Alameda County Superior Court) did. (This appears to be a misunderstanding of the trial court vis-a-vis appellate court roles.)
The Alameda County Superior Court then held, "... that the Bradford decision, involving a different plaintiff and defendant,[1] does not preclude this Court's entry of further injunctive relief against California State University and Colleges." (Footnote 1 concedes that the University of California is bound by the Bradford decision; but, not so the California State University and College, which continues to be subject to the injunctive relief of the Alameda County Superior Court.)
ISSUE
The primary issue is which decision prevails:
1. The unappealed judgment of the Superior Court of Alameda County; or
2. The Court of Appeal decision in Bradford.
*706 LAW AND DISCUSSION
(1) Appellants contend that the parties to this (Los Angeles County Superior Court) case are bound by the judgment of the Alameda County Superior Court and not by the Court of Appeal decision in Bradford.
The Alameda County Superior Court 1992 "Clarification of Order" released the University of California from its 1985 Leticia A. injunction, while continuing the California State University therein. The Alameda County Superior Court "Clarification of Order" concedes that the Bradford decision is binding on the defendant University of California, but not upon the defendant California State University. We disagree with the determination that Bradford does not apply to the California State University system.
It is unnecessary to engage in recondite discussions of primary right, res judicata, privity, collateral estoppel, concurrent jurisdiction and so forth. Such issues may have been relevant before, but not after, Bradford, supra, 225 Cal. App.3d 972, which was correctly decided and is the law applicable to this case.
The Bradford decision incorporated therein the opinion of the Attorney General No. 84-101 (67 Ops.Cal.Atty.Gen. 241 (1984)), which was issued in response to a request by the Chancellor of the California State University. The California Supreme Court denied review of the Bradford decision on March 28, 1991.
California Constitution, article III, section 3.5 has been satisfied. An appellate court has determined that:
1. Education Code section 68062, subdivision (h) precludes undocumented alien students from qualifying as residents of California for tuition purposes; and
2. Education Code section 68062, subdivision (h) is constitutional on its face and as applied. (Bradford, supra, 225 Cal. App.3d 972.)
Education Code section 68062, subdivision (h) applies without limitation to the California State University system. (Ed. Code, §§ 68000, 68011, 68012.) Education Code section 68062, subdivision (h) is constitutional on its face and as applied. Contrary to the assertion by interveners, we do not find anywhere in the Bradford opinion that the Court of Appeal held that its decision would not be binding upon the California State University system.
Bradford, supra, 225 Cal. App.3d 972, is binding upon both the University of California and the California State University. The conclusion in Bradford *707 that Education Code section 68062, subdivision (h) precludes undocumented alien students from qualifying as residents of California for tuition purposes goes beyond the relief sought by respondents and granted by the trial court.
A thorough discussion of this interpretation, that is, preclusion of undocumented alien students, is not necessary to our decision in this matter. (2) Suffice it to say that Education Code section 68062, subdivision (h) does not, itself, make a blanket preclusion of undocumented alien students from qualifying as California residents for tuition purposes. That section clearly establishes the preclusionary standard as the domiciliary provisions of the Immigration and Nationality Act (8 U.S.C. § 1101 et seq.).
DISPOSITION
The order granting peremptory writ of mandate and preliminary injunction is affirmed.
Respondents shall recover their costs on appeal.
Pursuant to Code of Civil Procedure section 1021.5, respondents are entitled to recover their reasonable attorney fees from appellant Board of Trustees of the California State University. Following remittitur, the trial court will determine the amount of such reasonable attorney fees.
Lillie, P.J., and Woods (Fred), J., concurred.
NOTES
[*] Judge of the Los Angeles Superior Court sitting under assignment by the Chairperson of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263194/ | 893 A.2d 1119 (2006)
391 Md. 462
Orlando BYNDLOSS
v.
STATE of Maryland.
No. 54 September Term, 2005.
Court of Appeals of Maryland.
March 8, 2006.
*1121 Amy E. Brennan, Asst. Public Defender (Nancy S. Forster, Public Defender, on brief), Baltimore, for Petitioner.
Brian S. Kleinbord, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Md., on brief), Baltimore, for Respondent.
Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.
CATHELL, Judge.
This case concerns whether a police officer may detain the occupants of a vehicle for approximately thirty minutes, after the driver and passenger have both provided driver's licenses and registration for the vehicle and the officer has written a warning for the traffic violation, while waiting for confirmation of the validity of the licenses and registration and checking for outstanding warrants. The central issue is whether the period of time that the driver and passenger were detained while the officer retrieved the information improperly extended the traffic stop beyond what is considered reasonable under the Fourth Amendment of the United States Constitution or Article 26 of the Maryland Declaration of Rights.[1]
Petitioner, Orlando Byndloss, was charged in the Circuit Court for Prince George's County with importation of 28 or more grams of cocaine (count one),[2] possession *1122 of 448 or more grams of cocaine with intent to distribute (count two),[3] possession of cocaine with intent to distribute (count three),[4] conspiracy to distribute cocaine (count four), and possession of cocaine (count five).[5] On March 19, 2004, a pretrial hearing was held before the Circuit Court for Prince George's County concerning petitioner's motion to suppress the drug evidence. The motion was denied. On March 24, 2004, petitioner was subsequently tried and convicted on all counts, except conspiracy to distribute cocaine (count four), at a bench trial before the Circuit Court for Prince George's County. On May 7, 2004, the Circuit Court imposed a sentence of 15 years for importation of cocaine (count one) and a concurrent 15 years, the first five without the possibility of parole, for possession of 448 grams or more of cocaine with intent to distribute (count two). Counts three and five were merged with count two for sentencing purposes. Petitioner appealed to the Court of Special Appeals and that court affirmed the conviction. Byndloss v. State, 162 Md. App. 286, 873 A.2d 1233 (2005). On June 21, 2005, petitioner filed a petition for writ of certiorari. On August 10, 2005, we granted certiorari. Byndloss v. State, 388 Md. 404, 879 A.2d 1086 (2005).
Petitioner presented only one question:
"During a routine traffic stop, may a State trooper withhold the issuance of a written warning and continue to detain the occupants of a vehicle after the driver and passenger have both provided driver's licenses and registration for the vehicle and the trooper has written a warning for the traffic infraction, but he has not issued it to the driver because the computer system, through which record[s] are checked, is inoperable, preventing the trooper from confirming the validity of the licenses and registration and checking for outstanding warrants?"
We hold that, under the particular factual circumstances of the case at bar, the police *1123 did not improperly detain petitioner. Accordingly, we affirm the judgment of the Court of Special Appeals.
I. Facts
On November 19, 2003, Sergeant Clifford Hughes[6] of the Maryland State Police was on duty in the area of I-95 and I-495 in Prince George's County. At approximately 10:58 a.m. Sergeant Hughes observed a 1997 green Chevrolet Malibu with Florida registration plates driving north on I-95. The vehicle had a plastic license plate cover over its registration plate. The license plate of the vehicle was not clearly visible due to the plastic cover, in fact, "the vehicle registration tags and month were not visible at all."[7] As a result of this violation of § 13-411 of the Transportation Article, Sergeant Hughes activated his emergency equipment and pulled the vehicle over.[8] Petitioner was a passenger in this vehicle.
Sergeant Hughes called in the stop to the College Park barrack and was advised that the computer systems through which licenses, vehicle registrations, and outstanding warrants are checked were down. The two systems are known as (1) Maryland Interagency Law Enforcement System (MILES) and (2) National Crime Information Center (NCIC). During the call Sergeant Hughes was not given any indication of when the systems would be up and operating again.
At 10:59 a.m. Sergeant Hughes walked up to the vehicle on the passenger side.[9] He knocked on the window of the front *1124 seat passenger. Petitioner, sitting in the front passenger seat, put the window down. Sergeant Hughes identified himself as a Maryland State Trooper and advised the driver, Joan Henry Malone, and passenger, petitioner, that they were being audibly and visually recorded.[10] Sergeant Hughes then asked Ms. Malone for her driver's license and registration. He explained that the reason for the stop was the plastic cover on the vehicle license plate. Ms. Malone stated that she didn't know that it was illegal and volunteered to remove it from the vehicle. Sergeant Hughes explained to her that it was too dangerous to do that due to the traffic on I-95. Throughout this conversation Ms. Malone was still looking for her driver's license and registration card.
When Ms. Malone handed over her driver's license and registration card Sergeant Hughes noticed that her hands were shaking and that she seemed "nervous" and "restless." Sergeant Hughes asked Ms. Malone where she was going and she told him that she was on her way from Florida to New York. At this time petitioner also gave Sergeant Hughes his driver's license.[11] At 11:02 a.m. the conversation ended and Sergeant Hughes went back to his vehicle with the driver's licenses and registration card.
Sergeant Hughes sat in his vehicle, called for a K-9 unit, and then proceeded to write a warning for the license plate cover. He did not immediately call his dispatcher and ask them to run Ms. Malone's and petitioner's information through MILES and NCIC because he had been informed that the systems were down. Sergeant Hughes testified that he told the other officer on the scene "I'm going to talk to them a little more, she is real nervous." At 11:08 a.m., when he was finished writing the warning, Sergeant Hughes called back the College Park barrack and asked whether the systems were still down. The dispatcher advised him that the systems were still down, but that the problem only affected the College Park barrack. The dispatcher then advised him to contact either the Rockville or Forestville barrack because their systems were up and functioning. Sergeant Hughes then decided to hold off on giving Ms. Malone the written warning because he had not yet been able to run the licenses and registration through MILES and NCIC.
At 11:09 a.m. Sergeant Hughes switched over to another channel and called the Waterloo barrack, which was the closest barrack, approximately three miles north of the stop. Upon receiving the call, the dispatcher at the Waterloo barrack advised Sergeant Hughes that he could not hear him due to background noise or interference. At 11:10 a.m. Sergeant Hughes called the Waterloo dispatcher back using his cell phone. Sergeant Hughes requested license and outstanding warrant checks for Ms. Malone and petitioner and provided the dispatcher with the information from their driver's licenses and Ms. Malone's registration card. The Waterloo dispatcher said that he would call him back with the information.
While waiting to hear back from the Waterloo dispatcher, Sergeant Hughes got out of his vehicle and approached Ms. Malone's car. He explained to her that he was waiting for a license and warrant *1125 check to come back, and as soon as that came back, they would be free to go. He then asked Ms. Malone to step out of the car and come to the rear of the vehicle. Sergeant Hughes testified that he again explained to her that "apparently the system was being slow today and as soon as the information came back, she would be free to go, and explained to her because of liability purposes, [he] couldn't allow her to drive away without knowing if her license was suspended or anything." Sergeant Hughes then asked Ms. Malone again about her trip and where she was going:
"She told me she was going to New Jersey, and she had previously told me she was going to New York. I asked her did she have a lot of luggage in the vehicle and she said no. She had previously told me she was going to stay a week, and I asked her how she was going to stay a week without a lot of luggage, and she stated that she wasn't going to stay a week because she had to go back to work. Her stories were inconsistent with what she had previously stated to me. And at that time I also noticed that her eyes were watering and she appeared to be crying. She was jumpy. She couldn't keep still and she was holding herself."
On the video of the stop it is evident that it had become windy as Sergeant Hughes and Ms. Malone were standing outside and Ms. Malone stated that she was cold. After finishing their conversation, Sergeant Hughes returned to his police car and Ms. Malone remained standing outside.
At 11:19 a.m. Sergeant Hughes received a call from the College Park dispatcher informing him that Trooper First Class (TFC) Butler, the certified K-9 handler, could not locate Sergeant Hughes. After this call Sergeant Hughes called back the Waterloo barrack to see if they had received the information from MILES and NCIC. The Waterloo police communications officer told him to "stand by," which, according to the officer's testimony, means to wait and not transmit. At this point, Sergeant Hughes asked Ms. Malone, who was still outside on the side of the road, if she wanted to have a seat in his car and she agreed. Sergeant Hughes again explained to her that he was still waiting on the checks. After she further initiated conversation, he asked her whether "there were any weapons, narcotics, untaxed cigarettes, contraband, currency, et cetera, in the vehicle, and she said no." At 11:23 a.m. Sergeant Hughes called back the Waterloo barrack using his cell phone and spoke to the duty officer. He advised the duty officer that the police communications officer was taking a long time and was informed that they were very busy and would get back to him.
At 11:26 a.m. TFC Butler, the K-9 handler, arrived. Sergeant Hughes spoke with TFC Butler and asked him to conduct a scan of Ms. Malone's vehicle, which TFC Butler then began to do. At 11:27 a.m. the Waterloo barrack communications operator called Sergeant Hughes back and said that petitioner had an extensive criminal background in New York and Florida, but did not provide any information at this time on Ms. Malone. Soon thereafter, at approximately 11:30 a.m., Sergeant Hughes testified that:
"At the same time TFC Butler is running the dog around the vehicle, I observed the dog sit to the right-rear side of the vehicle, which I knew as a positive sit alert for the presence of narcotics.... I then explained to [Ms. Malone] that based on the positive sit alert of the K-9, that I was going to conduct a probable cause search of her vehicle."
Petitioner was asked to get out of Ms. Malone's vehicle and Sergeant Hughes and TFC Butler then conducted a thorough *1126 search of that car from 11:30 a.m. to 11:40 a.m. A search of a large suitcase found in the trunk revealed male clothes packed tightly together and in the center of the suitcase, in a white plastic bag, two plastic vest-like panels taped with yellow masking tape. These packages contained approximately two kilograms of cocaine.[12] Sergeant Hughes then arrested Ms. Malone and petitioner.
The Waterloo barrack's dispatcher never called back with further information concerning Ms. Malone or petitioner. After the arrests, Sergeant Hughes returned to the College Park barrack and had the police communications officer run Ms. Malone's information through MILES and NCIC.
After the preceding testimony, the Circuit Court at the "Motion to Suppress" hearing issued its ruling:
"In this instance, we have a confluence of misfortune on behalf of the defendants and poor timing on the part of the [S]tate in which the Trooper, through absolutely no fault of his own, was stuck with a K-9 officer that he called for at 11:02, who apparently got lost, and said he couldn't find the Trooper, who was clearly visible on the side of the road, but apparently on the opposite side of the sixor eightlane highway from where the K-9 officer was looking for him.
"And you had that, plus the fact that his home barracks in College Park had its computer down. And clearly until the second call that the Trooper made, he could not be certain whether it was the entire NCIC [or] MILES system and its connection to the state police or whether it was only the local computers at College Park, which it turned out to be.
"He was directed at College Park to call either Frederick or RockvilleForestville or Rockville, which might have made sense if you're sitting in College Park and you know that College Park is halfway between those two locations, but, in fact, the Trooper was on I-95 in the northbound lanes at or near the intersection with the Route 198 cutoff, and he knew that from the 198 exit, the Waterloo barracks is only a couple of miles down the road, whereas Rockville was 20 miles away.
"Learn your geography and you'll know the answer to that. I happen to know that, having driven it many times. And I think there is an old case from Judge Chasanow that says I'm allowed to take judicial notice of local geography. Because apparently you all don't know how to figure those things out. But anyway, that's the reality.
"Forestville was probably much farther than Rockville. Rockville was certainly much farther than Waterloo, which was the next barracks closer to College Park. What the Trooper didn't anticipate was that making that call for the records check was going to hit at the same time that apparently the Waterloo barracks was inundated either with an inefficient dispatcher or somebody who was inundated with a lot of calls coming in at just that particular time.
"So he was waiting in good faith for the records check to come back. I believe that I was wrong, and while I could *1127 appreciate your not wanting to correct me, but I frankly didn't remember what the finding was in [Wilkes],[[13]] and the [Wilkes] case clearly says that a K-9 sniffing on the exterior of a vehicle or even a suitcase does not create any Fourth Amendment issue whatsoever because the K-9 does not intrude into anything, and we saw that plainly on the video.
"So the length of time that it happened to take for both the K-9 and the records check were almost exactly and precisely concurrent. The records check, I believe, call came back while the dog was wandering around the vehicle, if I recall. If not, it was within a minute or so of the dog arriving and going around the vehicle. I observed the dog. I saw him stop twice, sniffing where it appeared to me that the defendant was seated on the passenger side of the vehicle.
"Again, as I said earlier, you can't tell on a twodimensional video what the distance is from the rear of the vehicle to the passenger door, but that was the area in which I saw him kind of sniff a little bit and then get pulled away by the handler to move on and go around the vehicle again. But he did that on each of the first two circuits and it was only on the third circuit that he came around and actually sat. But he was sitting on the same side of the vehicle that he had sniffed before. So I couldn't tell whether he was sniffing at the front passenger door or right behind that or closer to the rear of the vehicle on the side of the trunk by the rear door.
"Clearly, the officers who reported believed that the dog was indicating at the rear of the passenger compartment. They checked there to no avail. I watched the video and you could see the Trooper actually reach deep into the trunk to pull some piece of luggage, or whatever it was, to the front of the trunk in order to then search it. So whether it was in that area just above the wheel well, which would have been approximately where the dog was indicating, is really something for conjecture because I don't think that video is going to get any clearer no matter how many times you watch it.
"So you're going to have to wait for that, for the testimony of the handler as to where he was indicating. But I'm satisfied that there was enough at that indication to become then probable cause for a full search of the vehicle, passenger compartment and trunk.
"Now, as to the delay, I find no impermissible delay because it was absolutely not a pretext for the officer to be waiting for a call back to confirm whether or not there were outstanding warrants or any illegality in the licensing of the driver. While it appears at first blush that because he was able to very quickly clear up any confusion by the registration plate obscuring dateor month and year, he cleared that up, apparently, very quickly with the driver's license and registration card, but at the time that he was able to look at that, he was also calling in the information for outstanding warrant and criminal record check, which is routine procedure.
"The delay was caused through no fault of the officer. It was not a pretext. Granted he did try and do some more investigative work while talking prearrest with the defendant Malone, but all that established was some inconsistencies in what she had told him that raised his suspicions. In fact, he had already requested K-9 assistance. So *1128 those reasonable suspicions certainly didn't go to his effort to get a K-9 officer out there because he had already made that decision. So I find those to be irrelevant to this finding.
"But I don't see anything other than due diligence in the officer's part in making the stop."
The hearings judge declined to suppress the evidence of the cocaine as a violation of petitioner's Fourth Amendment or Article 26 protections against illegal search and seizure. At trial, the Circuit Court for Prince George's County convicted petitioner.
On appeal, the Court of Special Appeals affirmed the motions judge and the Circuit Court's decision, finding that "the purpose for the stop had not been accomplished before the K-9 Unit arrived" and that:
"The initial stop was not concluded and, therefore, no additional reasonable suspicion was needed to support continued detention of the vehicle, beyond that which supported the initial stop for violation of the traffic laws. By the time the record check information was finally relayed to the officer, revealing that [petitioner] had an extensive criminal background, the K-9 dog had already signaled that there were drugs in the vehicle, and the officers then validly searched it. See, e.g., Wallace v. State, 142 Md.App. 673, 686, 791 A.2d 968 (2002) (probable cause exists to search a vehicle once a drug dog alerts the officers to the potential presence of drugs in it). The detention lasted only long enough to complete procedures incident to the traffic stop."
Byndloss v. State, 162 Md.App. 286, 314-15, 873 A.2d 1233, 1250-51 (2005). We agree with this holdingthat under the factual circumstances present in this particular case, the initial stop was not concluded and the "detention lasted only long enough to complete procedures incident to the traffic stop."
II. Standard of Review
Our review of the Circuit Court's denial of petitioner's motion to suppress is ordinarily limited to the record of the suppression hearing, and not the record of the trial. Whiting v. State, 389 Md. 334, 345, 885 A.2d 785, 791 (2005); State v. Nieves, 383 Md. 573, 581, 861 A.2d 62, 67 (2004); Laney v. State, 379 Md. 522, 533, 842 A.2d 773, 779 (2004); Dashiell v. State, 374 Md. 85, 93, 821 A.2d 372, 376 (2003) (quoting State v. Collins, 367 Md. 700, 706-08, 790 A.2d 660, 663-64 (2002)) (citing Ferris v. State, 355 Md. 356, 368, 735 A.2d 491, 497 (1999)). We review the facts and evidence in the light most favorable to the prevailing party on the motion, in the case sub judice, the State. Whiting, 389 Md. at 345, 885 A.2d at 791; Nieves, 383 Md. at 581, 861 A.2d at 67; Laney, 379 Md. at 533, 842 A.2d at 779; Dashiell, 374 Md. at 93, 821 A.2d at 376-77 (quoting Collins, 367 Md. at 707, 790 A.2d at 664) (citing Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239, 1240 (1990)). We extend great deference to the hearing judge's fact finding and will not disturb the findings unless clearly erroneous, however, we review independently the application of the law to those facts to determine if the evidence at issue was obtained in violation of the law and, accordingly, should be suppressed. Whiting, 389 Md. at 345, 885 A.2d at 791; Nieves, 383 Md. at 581-82, 861 A.2d at 67; Laney, 379 Md. at 533-34, 842 A.2d at 779-80; Dashiell, 374 Md. at 93-94, 821 A.2d at 377 (citing Lancaster v. State, 86 Md.App. 74, 95, 585 A.2d 274, 284 (1991)); State v. Rucker, 374 Md. 199, 207, 821 A.2d 439, 444 (2003).
III. Discussion
Petitioner contends that the Court of Special Appeals erred in holding that the motions court properly denied his motion *1129 to suppress the evidence of the cocaine recovered from Ms. Malone's vehicle. Specifically, he argues that his detention by Sergeant Hughes while the trooper was waiting for information from MILES and NCIC amounted to an improper extended amount of time of detention in violation of his Fourth Amendment rights. Petitioner posits that the traffic stop was longer than necessary to effectuate the purpose of the stop, i.e., the warning for the plastic license plate cover.[14] The State argues that Sergeant Hughes reasonably detained petitioner while awaiting the results of a routine license and warrant check on Ms. Malone.[15]
Extended Length of the Traffic Stop
The case sub judice tests what is a reasonable extension of the length of a traffic stop in order for police to receive radio verification of the validity of an individual's driver's license, vehicle registration, and warrants check. It is petitioner's contention that the length of the detention of the driver, and thus himself, in the case at bar was unreasonable and therefore the K-9 search was a violation of his constitutional rights. We find that under the particular facts and circumstances of this case, the initial traffic stop was still ongoing at the time of the K-9 scan and resultant alert. The facts indicate that Sergeant Hughes exercised reasonable diligence under the circumstances, in obtaining the license, registration, and warrant information from MILES and NCIC and there was no evidence extant that the stop was extended beyond the time necessary to *1130 reasonably complete all of the actions associated with resolving the initial purpose of the stop.
The Fourth Amendment to the United States Constitution provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."[16]
The Fourth Amendment protects against unreasonable searches and seizures. See Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996); United States v. Mendenhall, 446 U.S. 544, 550-51, 100 S.Ct. 1870, 1875, 64 L.Ed.2d 497, reh'g denied, 448 U.S. 908, 100 S.Ct. 3051, 65 L.Ed.2d 1138 (1980). It is evident that the stopping of a vehicle and the detention of its occupants is a seizure and thus implicates the Fourth Amendment. See Whren, 517 U.S. at 809-10, 116 S.Ct. at 1772, 135 L.Ed.2d 89; United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985). "An automobile stop is thus subject to the constitutional imperative that it not be `unreasonable' under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." Whren, 517 U.S. at 810, 116 S.Ct. at 1772, 135 L.Ed.2d 89 (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395, 59 L.Ed.2d 660 (1979); Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977) (per curiam)). However, the detention of a person "must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983) (plurality opinion).
We stated in Wilkes v. State, 364 Md. 554, 774 A.2d 420 (2001):
"In determining whether there has been a violation of the Fourth Amendment right against unreasonable searches and seizures, the Supreme Court has stated:
The touchstone of our analysis under the Fourth Amendment is always `the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968). Reasonableness, of course, depends `on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.' United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975).
Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 332, 54 L.Ed.2d 331 (1977); see also Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996); Stokes [v. State], 362 Md. [407,] 412-13 n. 7, 765 A.2d [612,] 615 n. 7 [(2001)]."
Wilkes, 364 Md. at 571, 774 A.2d at 430.
It is undisputed that Sergeant Hughes had probable cause to stop Ms. Malone's vehicle and that there was a valid initial traffic stop. Pursuant to § 13-411 of the Transportation Article, Sergeant Hughes conducted a lawful stop of Ms. Malone's green Chevrolet Malibu, in which *1131 petitioner was the front seat passenger, after observing that the car's license plate was obscured by a plastic license plate cover. Petitioner does not challenge the stop itself[17] or even the Carroll[18] search of the vehicle made after the K-9 alerted to the presence of narcotics.[19] Petitioner argues that "the constitutional violation was the unreasonably prolonged detention or seizure of [petitioner], a passenger in a car that was stopped because a registration plate cover was displayed on the vehicle's rear tag." Petitioner contends that the cocaine recovered from the vehicle was "the fruit[] of the unlawful detention" and therefore must be suppressed. See Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Petitioner's argument boils down to two points: (1) Ms. Malone and petitioner were detained longer than necessary for the issuance of a warning or citation for having the plastic license plate cover and (2) the continued detention was not justified by the circumstances that took place over the "brief period of time that it should have taken to determine the status of the driver, passenger and vehicle." We find that Ms. Malone and petitioner were not detained *1132 longer than necessary under the circumstances present in the case sub judice.
Because petitioner does not dispute the legitimacy of the stop, we find that the initial seizure was justified and turn to address whether the traffic stop was "longer than is necessary to effectuate the purpose of the stop." See Royer, 460 U.S. at 500, 103 S.Ct. at 1325, 75 L.Ed.2d 229. In our determination of whether petitioner's Fourth Amendment rights have been violated, we must first establish when the initial legitimate stop ends. As we discussed in State v. Green, 375 Md. 595, 826 A.2d 486 (2003):
"Judge Raker, speaking for this Court, has drawn a bright line, demarcating the point at which an ordinary traffic stop ends:
In sum, the officer's purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention. See Royer, 460 U.S. at 500, 103 S.Ct. at 1325-26. Thus, once the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot. United States v. Sandoval, 29 F.3d 537, 540 (10th Cir. 1994).
355 Md. at 372, 735 A.2d at 499. This language clarifies that, after a traffic citation or warning has been issued, the Fourth Amendment allows only (1) consensual encounters between the police officer and driver, and (2) detentions supported by, at least, reasonable articulable suspicion."
Green, 375 Md. at 610, 826 A.2d at 495. In the case sub judice, the initial justified detention was not concluded at the time the K-9 dog alerted to the presence of narcotics in the car. Due to the systems being down at the College Park barrack and then the delayed response of the Waterloo barrack, Sergeant Hughes had not been able to obtain information to verify the validity of the licenses, Ms. Malone's registration, or conduct a warrant check on Ms. Malone or petitioner. The initial purpose of the stop had not been fulfilled. Therefore, petitioner's only available argument is that the length of the detention was not reasonable, and that the resulting search of the vehicle should be found to be a violation of his Fourth Amendment rights.
Petitioner "acknowledges that the length of a traffic stop, per se, is not dispositive of whether the traffic stop was unreasonable, but it is a factor to consider with all of the other circumstances." As we have discussed previously in Wilkes:
"The Supreme Court has expressly rejected imposing rigid time limitations on traffic stops. See [United States v.] Sharpe, 470 U.S. [675,] 685, 105 S.Ct. [1568,] 1575, 84 L.Ed.2d 605 [(1985)]. In that case, the Supreme Court noted that as `[m]uch as a "bright-line" rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.' Id. The Supreme Court continued:
In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of *1133 investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But `[t]he fact that the protection of the public might, in the abstract, have been accomplished by "less intrusive" means does not, itself, render the search unreasonable.' The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.
Id. at 686-87, 105 S.Ct. at 1575-76, 84 L.Ed.2d 605 (citations omitted)."
Wilkes, 364 Md. at 576-77, 774 A.2d at 433. We will not simply determine that a stop was unreasonable due to the length of time over which it occurred. Based on Sharpe, it is necessary to revisit the facts, as expounded upon supra, in order to determine whether Sergeant Hughes "diligently pursued" the retrieval of the license, registration, and warrant information from MILES and NCIC.
On November 19, 2003, at 10:58 a.m. Sergeant Hughes pulled the vehicle over. At this time Sergeant Hughes called in the stop to the College Park barrack and was notified that the MILES and NCIC information systems were down but was not given an indication of when they would be back up. At 10:59 a.m. he approached the vehicle, notified the driver, Ms. Malone, of the infraction, spoke with her for a few minutes and obtained her driver's license and registration for the vehicle as well as the passenger's (petitioner) driver's license. At 11:02 a.m. Sergeant Hughes returned to his patrol vehicle, called for a K-9 handler, examined the documents and wrote out a warning for the plastic license plate cover. When he was finished, at 11:08 a.m., he called back the College Park barrack to see if the system was back up. He was informed that it was still down, but that he should contact another barrack because the system failure was limited to College Park. Sergeant Hughes then called the Waterloo barrack, located approximately three miles north of the location of the stop. It was 11:09 a.m. and there was apparently too much background noise or interference for the dispatcher to hear. Sergeant Hughes then, immediately, at 11:10 a.m. used his cell phone to call back the dispatcher. He provided the dispatcher with all of the necessary information to run the check and the dispatcher told him that he would call him back over the air once he received the information. Sergeant Hughes then got out of his vehicle, walked up to Ms. Malone's car and informed her that he was waiting on the results of a license and warrant check.
It is at this point in the stop that petitioner argues that the length of the detention has become unreasonable. Petitioner acknowledges that "police may conduct checks of driver's licenses, vehicle registrations and warrant statuses during a traffic stop. . . ."[20] However, petitioner *1134 contends that "such authority is premised on the fact that this information can be accessed quickly." As the Court in Wilkes discussed:
"Such holdings make sense as modern technology has availed police officers with the ability to quickly access relevant information without unnecessarily prolonging the duration of the stop or unreasonably increasing the level of intrusion. See United States v. Gonzalez, 763 F.2d 1127, 1130 (10th Cir.1985) (`The police officer had a car radio and contact thereby with dispatchers who had instant access to the National Crime Information Center (NCIC) computer records that could quickly resolve, with reasonable certainty, whether there were warrants outstanding against the driver and whether the car had been reported stolen.')."
Wilkes, 364 Md. at 579, 774 A.2d at 435. In the case sub judice, petitioner argues that the detention continued beyond a period during which the police would "normally" have received information concerning the driver's licenses, registration, and warrant check.
Sergeant Hughes didn't hear back from either dispatcher until 11:19 a.m. At that time the College Park dispatcher called to inform him that the K-9 handler was lost and could not find the stop location. Sergeant *1135 Hughes then called the Waterloo barrack again to see if the license check and warrant information had come back, and was told to "stand by." At 11:23 a.m., tired of waiting for a response, Sergeant Hughes called back the Waterloo barrack using his cell phone and spoke to the duty officer, who told him that they were very busy. At 11:26 a.m. the K-9 handler arrived and proceeded to conduct a scan on Ms. Malone's vehicle. At 11:27 a.m. the Waterloo barrack called Sergeant Hughes back and said that petitioner had an extensive criminal background,[21] however, the dispatcher did not provide any outstanding warrant information nor did he provide any information on the driver, Ms. Malone. At 11:30 a.m. the K-9 dog alerted to the presence of narcotics in Ms. Malone's vehicle.
We addressed similar factual circumstances in Wilkes. In Wilkes, a vehicle was stopped for exceeding the speed limit. While the police were awaiting the results of a records check, a K-9 dog arrived, scanned the vehicle and alerted to the presence of narcotics. We upheld the search. In that case, however, there was no argument that the retrieval of the records check took an unreasonable amount of time. The K-9 unit had arrived within five minutes of the stop. Petitioner draws our attention to a footnote in Wilkes, in which we stated:
"Under the facts of the instant case, the K-9 scan, at the least, occurred while the troopers were waiting for conclusive warrant information, and that period of time, itself, was not unreasonably long. An overly long period of waiting for warrant information may well create problems relating to Fourth Amendment compliance."
364 Md. at 583-84 n. 22, 774 A.2d at 438 n. 22. While it is true that an overly long detention while waiting for warrant information may create Fourth Amendment problems, we do not find the period of detention in the case sub judice, based upon the particular facts and circumstances, to be such an occasion. As the Court in Wilkes also stated:
"If the K-9 scan was conducted prior to [the Trooper] receiving any information from the [barrack] concerning the computer check, then, as we have indicated. . . the initial purpose for the traffic stop was not yet fulfilled and the K-9 scan was justified without additional independent reasonable articulable suspicion."
364 Md. at 583, 774 A.2d at 437. It is evident in the case at bar that the K-9 scan was being conducted prior to Sergeant Hughes receiving any information concerning the records check and thus, the initial purpose for the stop was not yet fulfilled.
In Wilkes, we discussed Pryor v. State, 122 Md.App. 671, 716 A.2d 338, cert. denied, 352 Md. 312, 721 A.2d 990 (1998), a case in which a driver was stopped for exceeding the speed limit. The driver was then detained and made to wait for a K-9 unit to arrive. Under the circumstances presented in Pryor, the Court of Special Appeals suppressed the evidence obtained from the search, finding that a person stopped for a minor traffic violation "cannot be detained at the scene of the stop longer than it takesor reasonably should taketo issue a citation for the traffic violation that the motorist committed." 122 Md.App. at 674-75, 716 A.2d at 340. However, as we pointed out in Wilkes:
"that court also recognized that there may be reasons that justify the extension *1136 of a traffic stop: `[t]his is not a case in which an extended detention of the motorist could be justified by the need to administer a "field sobriety" test or by technical difficulties in determining the status of the motorist's license or the ownership of the vehicle that has been stopped.'"
364 Md. at 575 n. 16, 774 A.2d at 433 n. 16 (citing Pryor, 122 Md.App. at 681-82 n. 7, 716 A.2d at 343 n. 7). The extended period of detention in the case sub judice was caused by technical difficulties in determining the status of Ms. Malone's and petitioner's driver's licenses, the registration of the vehicle, and warrant checks. There is no evidence that Sergeant Hughes was anything but diligent in his attempts at obtaining that information.
It is established that a records check of a driver's license, registration, and outstanding warrants is an integral part of any traffic stop. See Prouse, 440 U.S. at 663, 99 S.Ct. at 1401, 59 L.Ed.2d 660; Wilkes, 364 Md. at 578, 774 A.2d at 434. As Judge Davis, writing for the Court of Special Appeals, expressed in the opinion below:
"It is beyond cavil . . . that the law contemplates a record check for outstanding warrants or other infractions as part of the initial stop for the traffic violation. The Court of Appeals has unequivocally confirmed the principle that `[i]t is clear that an officer conducting a routine traffic stop may request a driver's license, vehicle registration, and insurance papers, run a computer check, and issue a citation or warning.' Nathan [v. State], 370 Md. [648,] 661-62, 805 A.2d 1086, [1094 (2002)]. We have similarly opined that a single detention takes place and a K-9 scan for drugs is constitutionally permissible in situations where the scan is `at a point in time when the trooper "was still awaiting the results of the license and registration check [and] the scan did not prolong the detention."' Graham v. State, 119 Md. App. 444, 469, 705 A.2d 82[, 94] (1998) (quoting Munafo [v. State], 105 Md.App. [662,] 671-72, 660 A.2d 1068[, 1072 (1995)]). See McKoy v. State, 127 Md. App. 89, 732 A.2d 312 (1999) (after stopping the defendant's vehicle for speeding, the officer obtained the license of the defendant and, before the dispatcher responded to the officer's request for information on the defendant's license and before the citation was written, it was permissible for the K-9 to sniff the vehicle).
In a case factually on point with Graham, we opined in In re Montrail M., 87 Md.App. 420, 589 A.2d 1318 (1991), that the officer had reasonable suspicion to detain the vehicle, as it was in an isolated area in the early morning hours. After the officer asked for the driver's license and registration to `run a check,' the canine unit arrived. Id. at 429, 589 A.2d [at 1323]. Before the check was completed, the canine quickly scanned the vehicle and indicated the presence of drugs. We held that `only one detention occurred,' as the `trained dog arrived on the scene while [the police officer] was still running a check on [the defendant's] license and registration, and the scan took place as the deputy completed the check.' Id. at 437, 589 A.2d [at 1327]. See Graham, 119 Md.App. at 458, 705 A.2d 82 (citing Montrail with approval for an example of what constitutes a single detention). The initial reason for the traffic stop in this case a concealed license plate was still ongoing when the K-9 arrived and conducted the scan of appellant's vehicle. Fortuitously, the computer check had not been completed in spite of the fact that Trooper First Class Butler and the K-9 Unit were *1137 delayed because the Trooper was unable to find the location of the traffic stop."
Byndloss, 162 Md.App. at 307-08, 873 A.2d at 1246.
While there may in the future be an occasion that arises in which the length of a detention caused by systems being down violates an individual's Fourth Amendment or Article 26 rights, this is not such a case.
The proper method for analyzing the detention, i.e., the diligent pursuit of the investigation, was espoused in Sharpe as discussed supra by this Court in Wilkes. Petitioner argues that Sergeant Hughes "should have determined whether the College Park barrack was the only system experiencing the problem," and suggests that "he should have contacted another barrack immediately upon returning to his car the first time at 11:02 a.m." Furthermore, petitioner argues that Sergeant Hughes "waited too long to get a response from [the Waterloo] barrack before trying another barrack," that "[h]e could have called the Rockville or Forrestville barrack." We, however, find that Sergeant Hughes was sufficiently diligent in his pursuit of the records check. He knew that the College Park barrack's system was down when he first made the stop, but not how long it would be down or whether the problem was systemic, affecting the other barracks. He made his second call to College Park within a reasonable time period to see if the system was back up. At that point he was informed that he should call another barrack, which he immediately did. The Waterloo barrack informed him that they would call him with the information. When they didn't get back to him quickly, he called them back on two different occasions. These efforts on the part of Sergeant Hughes indicate reasonable diligence in obtaining the records check (as the motions judge, Circuit Court, and Court of Special Appeals found).
IV. Conclusion
We find that, under the particular facts and circumstances present in the case sub judice, the initial stop by Sergeant Hughes was not concluded at the time the K-9 dog alerted to the presence of narcotics. Sergeant Hughes with sufficient diligence pursued the acquisition of the records check involving the validity of Ms. Malone's driver's license and registration, petitioner's driver's license, as well as warrant checks on both individuals. We find that the seizure or detention was reasonable under the circumstances. Therefore, there was no violation of petitioner's Fourth Amendment or Article 26 rights. We affirm the Court of Special Appeals finding that the detention lasted only long enough to complete procedures incident to the traffic stop.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE PETITIONER.
BELL, C.J., files a dissenting opinion, in which GREENE, J., joins.
Dissenting Opinion by BELL, Chief Judge which GREENE, J., joins.
Respectfully, we dissent.
The majority acknowledges, as we believe it must, that the period of time that the driver, Ms. Malone, and petitioner, Orlando Byndloss, as passenger, were detained was an extended period of time. The majority characterizes the central issue in the case as "whether the extended length of time that the driver and passenger were detained while the officer retrieved the information improperly extended the traffic stop beyond what is considered reasonable under the Fourth Amendment of the United States Constitution or Article 26 of *1138 the Maryland Declaration of Rights." 391 Md. 462, 465, 893 A.2d 1119, 1121 (2006) (footnote omitted). After analyzing the nature of the stop, however, and the officer's diligence, as the majority does, we are led to a contrary conclusion; namely, that the lack of reasonable suspicion and the officer's lack of diligence resulted in an unreasonable detainment of the petitioner.
A law enforcement officer's objective in a routine traffic stop is to enforce the laws of the roadway and, ordinarily, to investigate the manner of driving with the intent to issue a citation or warning. Our Court's view is crystallized in Ferris v. State, 355 Md. 356, 369, 735 A.2d 491, 497-98 (1999), in which Judge Raker summarized several Supreme Court holdings concerning the Fourth Amendment as it relates to traffic stops:
"[A] traffic stop involving a motorist is a detention which implicates the Fourth Amendment. See United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 1573, 84 L.Ed.2d 605 (1985); Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984) (analogizing the degree of intrusiveness of the usual traffic stop to the degree of restraint imposed by the typical Terry stop) . . . . [O]rdinarily such a stop does not initially violate the federal Constitution if the police have probable cause to believe that the driver has committed a traffic violation. Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 1772, 135 L.Ed.2d 89 (1996). Nonetheless, . . . it [is] clear that the detention of a person `must be temporary and last no longer than is necessary to effectuate the purpose of the stop.' Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983) (plurality opinion)."
Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention. See Royer, 460 U.S. at 500, 103 S.Ct. at 1325-26, 75 L.Ed.2d at 238. Thus, once the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot. See United States v. Sandoval, 29 F.3d 537, 540 (10th Cir.1994). Many other courts around the country, in addressing traffic stops under similar circumstances, have held that a continued detention, absent independent justification, constitutes an illegal seizure under the Fourth Amendment. In Ferris, for example, we acknowledged the observations of the Supreme Court of Colorado:
"When, as here, the purpose for which the investigatory stop was instituted has been accomplished and no other reasonable suspicion exists to support further investigation, there is no justification for continued detention and interrogation of citizens. People v. Redinger, 906 P.2d 81, 85-86 (1995) (en banc) (footnote omitted). See United States v. Soto-Cervantes, 138 F.3d 1319, 1322 (10th Cir.1998), cert. denied, 525 U.S. 853,525 U.S. 853, 119 S.Ct. 131, 142 L.Ed.2d 106 (1998); Karnes v. Skrutski, 62 F.3d 485, 491 (3rd Cir.1995); United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir.1994); United States v. Obasa, 15 F.3d 603, 607 (6th Cir.1994); People v. Rodriguez, 945 P.2d 1351, 1360 (Colo.1997) (en banc); Commonwealth v. Torres, 424 Mass. 153, 674 N.E.2d 638, 642 (1997). See also Berkemer, 468 U.S. at 439, 104 S.Ct. at 3150 (`[U]nless the detainee's answers provide the officer with probable cause to arrest him, he must then be released') (footnotes omitted); Davis v. State, 947 S.W.2d 240, 243 (Tex.Crim. *1139 App.1997) (en banc) (`[O]nce the reason for the stop has been satisfied, the stop may not be used as a "fishing expedition for unrelated criminal activity."') (quoting Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 422, 136 L.Ed.2d 347 (1996) (Robinette II) (Ginsburg, J., concurring))."
Ferris, 355 Md. at 372-73, 735 A.2d at 499-500. Moreover, we acknowledged that:
"Many of these cases employing careful scrutiny if not skepticism over continued detentions in the context of traffic stops are consistent with the admonition of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and its progeny that a Terry stop must not only be justified at its inception, but its scope throughout must be reasonably related to the circumstances which justify the intrusion. United States v. Babwah, 972 F.2d 30, 33 (2nd Cir.1992)."
Id. at 373, 735 A.2d at 500.
We glean from the case law that a detention or seizure becomes unreasonable if an individual is detained longer than it should reasonably take to check on a driver's license, registration, or other investigative information. Further, it is important to note, as the Court of Special Appeals illustrated in Carter v. State, 143 Md.App. 670, 692-93, 795 A.2d 790, 803 (2002), that
"[o]nce a reasonable time for the processing of a traffic charge has expired, even a minimal further delay to accommodate the arrival of a drug-sniffing canine is not permitted. Graham v. State, 119 Md.App. 444, 469, 705 A.2d 82 (1998). That foreclosure is for the obvious reason that the dog sniff, however valuable it might be for other investigative purposes, does not in any way serve the purpose of . . . justifying [the initial] traffic stop. Once the purpose of the traffic stop has been fully and reasonably served, no further detention is permitted unless, in the course of the traffic stop, some independent articulable or reasonable suspicion has arisen to create some new and self-sufficient investigative purpose."
In this context, it is, thus, imperative to keep in focus the sequence of events that transpired in the case sub judice after Sergeant Hughes stopped the vehicle operated by Ms. Malone:
10:59 a.m. Sergeant Hughes approaches the vehicle after the stop. The reason for the stop was that a plastic cover over the license plate obscured the tag. The driver, Ms. Malone, according to the officer, seemed nervous and restless. Ms. Malone volunteered to remove the plastic cover, however, the Sergeant told her that removing the cover on Interstate 95 would be too dangerous.
11:02 After retrieving both Ms. Malone's driver's license and registration; and the petitioner's driver's license, Sergeant Hughes went back to his vehicle. He told the other officer on the scene, "I'm going to talk to them a little more, she is real nervous." He called and requested a K-9 unit after the initial contact with Ms. Malone and Mr. Byndloss, when he knew the College Park Barracks ("CPB") computer system was down. More importantly, Sergeant Hughes wrote a warning for the tag violation but did not give it to Ms. Malone.
11:08 Sergeant Hughes then called the CPB. The CPB told him that the system was down and advised him that the Rockville or Forestville Barrack's systems were up and running.
11:09 Sergeant Hughes called the Waterloo Barracks[1] because it was geographically *1140 closer to the traffic stop than both the Rockville or Forestville Barracks, but the Waterloo dispatcher could not hear him due to background noise and interference during the transmission.
11:10 Sergeant Hughes called the Waterloo Barracks from his cell phone, and provided Ms. Malone's and Mr. Byndloss's information and asked for license and outstanding warrant checks on both individuals. As he waited for a reply from the Waterloo Barracks, he exited his vehicle, approached Ms. Malone's vehicle and told her to get out of the car and come to the rear of the vehicle. He told her that the system was slow and asked her questions about where she was traveling, how long she was staying at her destination and about her luggage. He noticed that she had been crying, was jumpy and her stories were inconsistent. Because the weather was windy and cold, Ms. Malone told the officer that she was cold. The Sergeant returned to his patrol car, leaving Ms. Malone standing alongside Interstate 95.
11:19-11:20 The CPB called and told the officer that the K-9 unit could not find the location of the traffic stop. Again Sergeant Hughes called the Waterloo Barracks and was told to "stand by." Sergeant Hughes noticed that Ms. Malone was still outside and asked her if she would like to sit in his vehicle.[2] He asked her if there was any contraband in her vehicle. She said no, she did not think there was contraband in the vehicle.
11:23 Sergeant Hughes, using his cell phone, called the Waterloo Barracks again and was informed that they were busy and would get back to him.
11:26 The K-9 unit arrived.
11:27 The Waterloo Barracks called and informed the Sergeant that the Mr. Byndloss had an extensive criminal record.
11:30-11:40 The K-9 made a hit on the vehicle for drugs. A search was conducted, in which drugs were found in the trunk, in a suitcase containing men's clothing.
Having made a valid traffic stop based on the tag violation, the Sergeant, within ten minutes had conducted the necessary investigation, obtained the requisite information, addressed the matter with the driver, and made the determination that a warning ticket should be issued. Sergeant Hughes could not complete a license and registration check because the computers at his barracks were down. It is worth noting that there is no requirement that a trooper must complete a record check when the computer is down. At this point, absent some reasonable articulable suspicion, the stop should have ended.
According to Sergeant Hughes, however, his observation that Ms. Malone appeared "nervous" and "restless" made him "suspicious." Although he requested and obtained both Ms. Malone's and Mr. Byndloss's *1141 identification,[3] Ms. Malone's demeanor apparently made such an impact on the Sergeant that he not only told the accompanying officer that he was "going to talk to them a little more, she is real nervous," but his "suspicion" also led him to call the K-9 unit first, before running a check on the driver's and passenger's identification.
Previously, we have held that if a person is nervous when pulled over by a police officer, that behavior does not rise to the level of reasonable suspicion:
"[N]ervousness . . . of the driver pulled over by a Maryland State trooper is not sufficient to form the basis of police suspicion. . . . There is no earthly way that a police officer can distinguish the nervousness of an ordinary citizen under such circumstances from the nervousness of a criminal who traffics in narcotics. An individual's physiological reaction to a proposed intrusion into his or her privacy cannot establish probable cause or even grounds to suspect. Permitting citizen's nervousness to be the basis for a finding of probable cause would confer upon the police a degree of discretion not grounded in police expertise, and, moreover, would be totally insusceptible to judicial review."
Ferris, 355 Md. at 388, 735 A.2d at 508 (quoting Whitehead v. State, 116 Md.App. 497, 505, 698 A.2d 1115, 1119 (1997)).
Moreover, in Ferris, this Court cautioned against "placing too much reliance upon a suspect's nervousness when analyzing a determination of reasonable suspicion." Id. at 389, 735 A.2d at 509 (citations omitted). Noting that characterizing an individual as nervous, even unusually so, "is an extremely subjective evaluation," id. at 389, 735 A.2d at 508 (citing United States v. Fernandez, 18 F.3d 874, 879 (10th Cir.1994)), in which an officer who has had no prior interaction with the person whose behavior is being characterized, "could not reasonably gauge [the person's] behavior during the traffic stop with his usual demeanor." Id. (citing United States v. Beck, 140 F.3d 1129, 1139 (8th Cir.1998)).
In evaluating the scope of this traffic stop, we are mindful that a police officer's actions during a traffic stop must be reasonably related to the purpose of the stop. An officer must have reasonable suspicion to temporarily detain a driver, and the nervousness of the driver, under Fourth Amendment analysis, does not constitute reasonable suspicion. Furthermore, absent valid consent, a reasonable suspicion of other unlawful activity, or a reasonable suspicion that a detainee is armed and dangerous, an officer may not expand an investigative detention beyond the scope of the stop or embark on a "fishing expedition" in hope that something will turn up. *1142 In the case sub judice, the officer not only lacked suspicion, but his actions unreasonably expanded the scope of the stop in time and manner.
In Wilkes we referred to the Supreme Court's decision in Sharpe which stated that the length of time upon which a traffic stop is measured is not a rigid one. See Wilkes v. State, 364 Md. 554, 576-77, 774 A.2d 420, 433 (2001) (citing Sharpe, 470 U.S. at 685, 105 S.Ct. at 1575, 84 L.Ed.2d at 615). Furthermore, there is no bright line test for reasonableness with respect to detentions following a traffic stop. Sharpe, 470 U.S. at 685, 105 S.Ct. at 1575, 84 L.Ed.2d at 615. Nonetheless, in Sharpe, the standard was that
"[a] court making this assessment should take care to consider whether the police are acting in a swiftly developing situation and in such cases the court should not indulge in unrealistic second-guessing. The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it."
Sharpe, 470 U.S. at 686-87, 105 S.Ct. at 1575-76, 84 L.Ed.2d at 616 (citations omitted).
This Court pointed out that modern technology allows for quick access to information without unnecessarily prolonging the duration of the stop, to cut down on the level of intrusion. Wilkes, 364 Md. at 579, 774 A.2d at 435 (citing U.S. v. Gonzalez, 763 F.2d 1127, 1130 (10th Cir.1985)).
Further,
"[i]n assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant."
Sharpe, 470 U.S. at 686, 105 S.Ct. at 1575, 84 L.Ed.2d at 615.
What was not discussed in Wilkes was the police officer's reasonable use of modern technology in such a manner so as to avoid prolonged roadside detentions. The majority, however, relies primarily upon Wilkes in resolving this case. The facts in Wilkes are inapposite. The K-9 unit in Wilkes arrived on the scene within five minutes after the stop. Here, the K-9 unit arrived approximately thirty minutes after the stop, while it took thirty minutes to verify information concerning the driver's license, registration, and warrant information. Thirty minutes is too long to verify information using computer technology, especially considering that other reasonable alternatives were available. Sergeant Hughes could have contacted either the Rockville or Forestville Barracks or, in the alternative, issued the warning he had written earlier and allowed the driver and the passenger to leave the scene.
When Sergeant Hughes failed to proceed diligently under the circumstances, the prolonged detention became unreasonable. See Lee v. Cline, 149 Md.App. 38, 56, 814 A.2d 86, 96-97 (2002), rev'd on other grounds, 384 Md. 245, 863 A.2d 297 (2004); Pryor v. State, 122 Md.App. 671, 674-75, 716 A.2d 338, 340 (1998) (holding "that, unless continued detention can be justified by what occurs during the brief period of time . . . [a] motorist who is subjected to a `Whren stop' for a minor traffic violation cannot be detained at the scene of the stop longer than it takesor reasonably should taketo issue a citation. . . .") (second emphasis added) (footnote omitted). See also, Charity v. State, 132 Md.App. 598, 615, 614, 753 A.2d 556, 565; cert. denied, 360 Md. 487, 759 A.2d 231 (2000) (a "legitimate . . . traffic stop to *1143 justify a coincidental investigation has a finite `shelf life,' even when the traffic stop. . . is not formally terminated" and "the legitimating raison d'etre [may] evaporate if its pursuit is unreasonably attenuated or allowed to lapse into a state of suspended animation").
Moreover, in the present case, the State has failed to satisfy its burden of proving that the scope of the stop and detention was reasonable given the length of the detention. The stop extended beyond the time reasonably necessary for Sergeant Hughes to investigate a traffic offense. The articulated reason for the traffic stop was because of the tag violation. Although the driver offered to remove the cover immediately and apparently could have, the officer refused to permit the removal because, in the Sergeant's opinion, it was too dangerous a maneuver alongside Interstate 95. Yet, approximately ten minutes later, from 11:10 a.m.-11:20 a.m., Sergeant Hughes directed Ms. Malone to stand outside her car, which was stopped adjacent to Interstate 95.
In addition, Sergeant Hughes never explained why he did not promptly call either Rockville or Forestville Barracks from his cell phone when the College Park Barracks dispatcher informed him that those computer systems were up and running.[4] The suppression hearing judge stated that Sergeant Hughes did not call the Rockville or Forestville Barracks because of the distance between where the stop occurred and the location of those two barracks. That assertion is not persuasive after one considers that the matter of checking for information contained in a computer has no correlation to the proximity of the officer to a barrack.[5] The evidence reasonably supports the conclusion that the delay in obtaining confirmation with regard to the driver's license, registration, and warrant information was a direct result of Sergeant Hughes's lack of due diligence. Clearly, delaying the time it took to obtain the license, registration, and warrant information, permitted the arrival and subsequent scan of the vehicle by the K-9 unit, constituting a second stop, unrelated to the tag violation. When Sergeant Hughes became aware that he could not proceed diligently, he should have given Ms. Malone the warning he had written earlier and allowed her to leave.
Unfortunately, in justifying the State's actions, the majority today expands our holding in Ferris. In doing so, it overlooks the overarching policy explicated in Royer of balancing the individual's right to privacy and the State's legitimate interests. *1144 Commentators have acknowledged, in some jurisdictions that, "Terry has been whittled away to the point that . . . `routine' traffic stops are commonly turned into drug investigations through a variety of techniques, including `questioning about drugs, grilling about the minute details of travel plans, seeking consent for a full roadside exploration of the motorist's car, or parading a drug dog around the vehicle.'" O'Boyle v. Wyoming, 117 P.3d 401, 415 (Wyo.2005) (quoting WAYNE R. LAFAVE, 4 SEARCH AND SEIZURE § 9.3(d), 370, (4th ed. 2004) (other citations omitted)). By virtue of the majority's opinion, this Court further whittles away at Terry and validates stalling as another technique to turn routine traffic stops into drug investigations, notwithstanding the absence of reasonable suspicion.
The majority maintains that the purpose of the stop had not yet been completed, after all, the Trooper had not been able, by no fault of his own, to complete the license and registration checks. That cannot be the test. The convenience of Maryland's citizens should be taken into account. Under the majority's rationale, a stop for a traffic infraction no more serious than this one, so long as the computer system remains inaccessible, can be extended, to the affected citizen's utter and severe inconvenience, for an unlimited period, as long as it is necessary to check that citizen's license and registration, and the citizen subjected to it would have absolutely no recourse.
It warrants reminding that it is within this Court's province, and indeed, it is this Court's obligation, to make an independent, reflective constitutional judgment of the trial court's factual findings whenever claim of a constitutionally-protected right is involved. Although this Court gives great weight to the findings of the trial judge as to specific, first-level facts (such as the time interrogation began), this Court must make its own independent judgment as to what to make of such facts and must, in making such independent judgment, resolve for itself the ultimate, second-level fact of whether a constitutional violation occurred. See Ferris, 355 Md. at 368, 735 A.2d at 497; see also Walker v. State, 12 Md.App. 684, 695, 280 A.2d 260 (1971), Perkins v. State, 83 Md.App. 341, 346, 574 A.2d 356 (1990).
We do not disagree with the majority as to any of the facts on the record. Our conclusions as to what the trooper could have, and indeed, should have, done are entirely based on the lapses of time established and our belief that the lack of certain facts support an opposite conclusion. Accordingly, based upon our independent evaluation of the evidence to support the extended detention, we are satisfied that evidence seized as a result of the unconstitutional detention should have been suppressed.
Judge GREENE joins in this dissenting opinion.
NOTES
[1] Article 26 of the Maryland Declaration of Rights is, generally, in pari materia with the Fourth Amendment of the United States Constitution. Fitzgerald v. State, 384 Md. 484, 506, 864 A.2d 1006, 1019 (2004) (citing Gahan v. State, 290 Md. 310, 319, 430 A.2d 49, 54 (1981)).
[2] Maryland Code (2002), § 5-614 of the Criminal Law Article states in pertinent part:
"(a) Unlawful amounts.(1) Unless authorized by law to possess the substance, a person may not bring into the State:
. . .
(ii) 28 grams or more of cocaine;
...
(2) A person who violates this subsection is guilty of a felony and on conviction is subject to imprisonment not exceeding 25 years or a fine not exceeding $50,000 or both."
[3] Maryland Code (2002), § 5-612 of the Criminal Law Article states in pertinent part:
"(a) Unlawful amounts.A person who violates § 5-602 of this subtitle with respect to any of the following controlled dangerous substances in the amounts indicated is subject on conviction to a fine not exceeding $100,000 and the enhanced penalty provided in subsection (c) of this section:
. . .
(2) 448 grams or more of cocaine;
. . .
(c) Enhanced penalty.(1) A person who is convicted under § 5-602 of this subtitle with respect to a controlled dangerous substance in an amount indicated in subsection (a) of this section shall be sentenced to imprisonment for not less than 5 years."
[4] Maryland Code (2002), § 5-602 of the Criminal Law Article states:
"Except as otherwise provided in this title, a person may not:
(1) manufacture, distribute, or dispense a controlled dangerous substance; or
(2) possess a controlled dangerous substance in sufficient quantity reasonably to indicate under all circumstances an intent to manufacture, distribute, or dispense a controlled dangerous substance."
[5] Maryland Code (2002), § 5-601 of the Criminal Law Article states in pertinent part:
"(a) In general.Except as otherwise provided in this title, a person may not:
(1) possess or administer to another a controlled dangerous substance, unless obtained directly or by prescription or order from an authorized provider acting in the course of professional practice; or
. . .
(c) Penalty.(1) Except as provided in paragraph (2) of this subsection, a person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 4 years or a fine not exceeding $25,000 or both."
[6] According to his testimony at the March 19, 2004, motions hearing, Sergeant Hughes was assigned to the Special Operations section of the Interstate Criminal Enforcement Team. He had twelve years of police experience two as a Suffolk, Virginia police officer (from 1992-1994) and ten years as a Maryland State Trooper. Sergeant Hughes testified that his duties as a member of the Interstate Criminal Enforcement Team were as follows:
"Our main objective is traffic enforcement on the interstates throughout Maryland. We are to intercept the bulk shipment of drugs, untaxed cigarettes, currency, illegal weapons, and any other contraband, as well as identify interstate terrorists, and we accomplish that through aggressive, proactive traffic enforcement."
Further addressing what he meant by "aggressive, proactive traffic enforcement," Sergeant Hughes stated that, "[w]e go out and we look for violations, traffic violations." If they discover a traffic violation, Sergeant Hughes testified that:
"We do what we call the complete traffic stop process. We identify the operator and/or passengers in the vehicle, we look for anything basically out of place, indicate if there is criminal activity, whether it be nervousness or any other things that you don't see in a normal traffic stop, and just follow through with it."
[7] Maryland Code (1977, 2002 Repl.Vol.), § 13-411 of the Transportation Article states in pertinent part:
"(c) How plates fastened; legibility.At all times, each registration plate shall be:
(1) Maintained free from foreign materials, including registration plate covers as defined in § 13-411.1 of this subtitle, and in a condition to be clearly legible; ...."
Maryland Code (1977, 2002 Repl.Vol.), § 13-411.1 of the Transportation Article states in pertinent part:
"(a) Definition.In this section, `registration plate cover' means any tinted, colored, painted, marked, clear, or illuminated object that is designed to:
(1) Cover any of the characteristics of a vehicle's registration plate; or
(2) Distort a recorded image of any of the characters of a vehicle's registration plate recorded by a traffic control signal monitoring system under § 21-202.1 of this title."
[8] At this time a second state trooper, in a separate vehicle, also pulled over to assist with the stop.
[9] Sergeant Hughes in his testimony termed this the "alternate approach" which is used for officer safety purposes due to the traffic on I-95.
[10] The record contains the DVD recording of the stop in its entirety.
[11] There is no information in the record as to why or how Sergeant Hughes obtained petitioner's driver's license, nor has it been raised as an issue in the case sub judice. Therefore, we shall not address the permissibility of an officer obtaining such information from a passenger.
[12] Once Sergeant Hughes returned to the College Park barrack he removed the masking tape from the two packages and weighed them. The total weight of the two packages was 2,124.4 grams. Five samples were taken from each package, each sample weighing approximately one gram, and sent to the chemist for analysis. Petitioner stated in his brief that: "The parties stipulated that the chemist, if called as a witness, would have testified that the substance contained in the samples `was in fact cocaine.'"
[13] Wilkes v. State, 364 Md. 554, 774 A.2d 420 (2001).
[14] Petitioner also contends that there was no articulable suspicion of illegal activity to justify an extended detention, i.e., a "second" stop. We shall not address this issue, as we find that the purpose of the initial stop was not completed prior to the search by the K-9 unit, discussed infra.
[15] While under the circumstances, i.e., on a trip from Florida to New York, sitting in a vehicle alongside a major interstate highway with the officer in possession of his license, it was extremely unlikely that any such passenger would attempt to leave the scene; nonetheless, the record does not indicate that the officer had ordered the petitioner not to leave. His "detention" (if that is what it was) was incidental to the driver's detention. We are holding that the extent of the detention was not violative of petitioner's rights. No issue is raised as to the standing of the passenger to object to the driver's detention at a traffic stop. Therefore, it is not necessary to resolve the question of whether a passenger has a right to object to the length of the detention of a driver which is based on the driver's traffic violation, as it is not before us.
In the case sub judice there is no evidence in the record that petitioner attempted to resist the "detention," as there was in Dennis v. State, 345 Md. 649, 693 A.2d 1150 (1997) (Dennis II), cert. denied, 522 U.S. 928, 118 S.Ct. 329, 139 L.Ed.2d 255 (1997). The Court in Dennis II, addressed the issue presented in Dennis v. State, 342 Md. 196, 674 A.2d 928 (1996) (Dennis I), vacated, 519 U.S. 802, 117 S.Ct. 40, 136 L.Ed.2d 4 (1996), "whether a passenger in a vehicle whose driver has been stopped by police for a traffic violation may be convicted of disorderly conduct and battery when, rather than heeding the police command to remain in the vehicle, he walks away from the scene, and subsequently resists police attempts at detention." Dennis I, 342 Md. at 198, 674 A.2d at 929. Based on the stop being for the officer's safety, rather than a Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968) investigative stop, the Court reaffirmed its finding in Dennis I that "to justify detaining the passenger, the officer must have a reasonable suspicion that the passenger engaged in criminal behavior and must have intended to conduct further investigation based on that suspicion." 342 Md. at 211-12, 674 A.2d at 935.
The only question before us is petitioner's challenge to the length of the detention which resulted from the license and registration check of the documents. Because petitioner sat in the car and did not attempt to walk away, the issue of his actual detention in the first instance is not before us; we are limited to the issue of the length of the stop.
[16] The Fourth Amendment applies to the States through the Fourteenth Amendment to the United States Constitution. See Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961); Dashiell, 374 Md. at 94, 821 A.2d at 377.
[17] Petitioner stated in his brief, "[i]n light of Whren, [petitioner] does not challenge the initial stop of the vehicle for displaying a registration plate cover which, according to the testimony of Sgt. Hughes, obscured the registration plate when the sun hit it."
[18] When officers have probable cause to believe that a vehicle contains contraband, they are not required under the Fourth Amendment to obtain a warrant before searching the car and seizing the contraband. See Carroll v. United States, 267 U.S. 132, 150-51, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Florida v. White, 526 U.S. 559, 559, 119 S.Ct. 1555, 1557, 143 L.Ed.2d 748 (1999); Nathan v. State, 370 Md. 648, 665-66, 805 A.2d 1086, 1096-97 (2002). The K-9 alert provided probable cause for the search. See Wilkes v. State, 364 Md. 554, 774 A.2d 420 (2001).
Once the police have probable cause to search a lawfully stopped vehicle they may conduct a warrantless search of any container found inside that may contain the contraband. See Wyoming v. Houghton, 526 U.S. 295, 307, 119 S.Ct. 1297, 1304, 143 L.Ed.2d 408 (1999) (holding "that police officers with probable cause to search a car may inspect passengers' belongings found in the car that are capable of concealing the object of the search"); California v. Acevedo, 500 U.S. 565, 579-80, 111 S.Ct. 1982, 1991, 114 L.Ed.2d 619 (1991) ("police may search without a warrant if their search is supported by probable cause"); United States v. Ross, 456 U.S. 798, 825, 102 S.Ct. 2157, 2173, 72 L.Ed.2d 572 (1982) ("If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search."); but see State v. Wallace, 372 Md. 137, 159-60, 812 A.2d 291, 304-05 (2002), cert. denied, 540 U.S. 1140, 124 S.Ct. 1036, 157 L.Ed.2d 951 (2004) ("A canine alert on the exterior of a vehicle does not support the proposition that the drugs potentially in the car are concealed on a particular occupant of that vehicle. When the police get all of the occupants out of the vehicle and find no drugs in the vehicle, they cannot use a positive general canine scan of the car as authority to go further and search a non-owner/non-driver passenger.").
[19] Officers do not need to have articulable suspicion in order to conduct a K-9 "sniff" because it is not a search within the scope of the Fourth Amendment. See United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644-45, 77 L.Ed.2d 110 (1983) (a dog sniff of luggage does not constitute a "search" under the Fourth Amendment); City of Indianapolis v. Edmond, 531 U.S. 32, 40, 121 S.Ct. 447, 453, 148 L.Ed.2d 333 (2000); Fitzgerald v. State, 384 Md. 484, 864 A.2d 1006 (2004) (holding that a canine sniff of an apartment's exterior is a "non-search" under the Fourth Amendment); State v. Wallace, 372 Md. 137, 156 n. 6, 812 A.2d 291, 302 n. 6 (2002) ("a canine sniff, in and of itself, is not a search for purposes of the Fourth Amendment"); Wilkes, 364 Md. at 580-82, 774 A.2d at 435-37; Gadson v. State, 341 Md. 1, 8 n. 4, 668 A.2d 22, 26 n. 4 (1995), cert. denied, 517 U.S. 1203, 116 S.Ct. 1704, 134 L.Ed.2d 803 (1996) ("A dog sniff of a vehicle conducted during a lawful detention is not a `search' within the meaning of the Fourth Amendment.").
[20] In Wilkes the Court provided an extensive list of case law supporting the reasonableness of conducting such checks:
"Conducting checks of driver's licenses, vehicle registration, and possible warrants is reasonable. See United States v. Mendez, 118 F.3d 1426, 1429 (10th Cir.1997) (`An officer conducting a routine traffic stop may run computer checks on the driver's license, the vehicle registration papers, and on whether the driver has any outstanding warrants or the vehicle has been reported stolen. However, once the computer checks confirm that the driver has produced a valid license and proof of entitlement to operate the car, the driver must be permitted to proceed on his way, without further delay by police for additional questioning.') (internal citations omitted); United States v. McRae, 81 F.3d 1528, 1535 n. 6 (10th Cir.1996) (noting that an officer conducting a routine traffic stop is authorized to conduct a computer check); State v. Holman, 221 Neb. 730, 732-33, 380 N.W.2d 304, 307 (1986) (check of driver's history, registration, and for outstanding warrants is part of the normal procedure for a traffic stop); State v. Bell, 382 So.2d 119, 120 (Fla.Dist.App.1980) (police are authorized to determine if there is an outstanding warrant for arrest during stop); Clark v. State, 171 Ind.App. 658, 358 N.E.2d 761, 763 (1977) (Police officer's radio call to headquarters to check on any outstanding warrants of defendant was within the scope of the initial investigatory stop).
. . .
"In 1993, the Court of Appeals for the Fifth Circuit considered a similar argument in a case where police questioned a driver and passenger while awaiting the results of a computer check in United States v. Shabazz, 993 F.2d 431 (5th Cir.1993). That court stated:
Here, appellants cannot successfully claim that the detention exceeded its original scope. Appellants concede, and we have no doubt, that in a valid traffic stop, an officer can request a driver's license, insurance papers, vehicle registration, run a computer check thereon, and issue a citation. In this case, Officer LaChance asked Shabazz to exit the vehicle and produce his driver's license. He then called in for a computer check of the license. The questioning that took place occurred while the officers were waiting for the results of the computer check. Therefore, the questioning did nothing to extend the duration of the initial, valid seizure. Because the officers were still waiting for the computer check at the time that they received consent to search the car, the detention to that point continued to be supported by the facts that justified its initiation.
Id. at 437 (footnote omitted) (citations omitted); see also United States v. Crain, 33 F.3d 480, 485 (5th Cir.1994) (`[W]hen questioning takes place while officers are waiting for the results of a computer check and therefore does not extend the duration of the stop the questioning does not violate Terry.'). Thus, a reasonable continued investigation of the scene, while awaiting the results of a computer check was permissible police procedure under the Fourth Amendment."
Wilkes, 364 Md. at 578-80, 774 A.2d at 434-35 (footnote omitted).
[21] For safety reasons this information would be immediately made known to the officer without waiting for the results of the additional requests that were made.
[1] Maryland State Police Waterloo Barracks is located on Route 1 (Washington Blvd.), in Jessup, Howard County, Maryland. Malone's vehicle was stopped south of Route 198 on Interstate 95 in Prince George's County.
[2] Curiously, from approximately 11:10 a.m.-11:20 a.m., Sergeant Hughes apparently left Ms. Malone standing outside on the shoulder of Interstate 95. He had told her minutes earlier that he did not think it was a good idea for her to remove the plastic cover from her license plate, because it was too dangerous on Interstate 95 due to traffic.
[3] It is unclear why the petitioner's license was being checked and, unfortunately, the record provided no clarity on the subject, and the issue was not raised by the petitioner. Petitioner's sole issue was:
"During a routine traffic stop, may a State trooper withhold the issuance of a written warning and continue to detain the occupants of a vehicle after the driver and passenger have both provided driver's licenses and registration for the vehicle and the trooper has written a warning for the traffic infraction, but he has not issued it to the driver because the computer system, through which record[s] are checked, is inoperable, preventing the trooper from confirming the validity of the licenses and registration and checking for outstanding warrants?"
Sergeant Hughes testified that he employed, "aggressive, proactive traffic enforcement" techniques when looking for traffic violators. See Byndloss v. State, 162 Md.App. 286, 291, 873 A.2d 1233, 1236 (2005). In light of that testimony, a matter of concern for us, was that the first information provided to the Sergeant, in response to the record check, involved the passenger, Mr. Byndloss's extensive criminal history instead of either his or Ms. Malone's driving history.
[4] The Sergeant failed to exercise due diligence in contacting the Rockville or Forestville Barracks, although several opportunities clearly were presented. He easily could have contacted both or either barracks
(1) after he became aware that both Rockville and Forestville systems were up and running,
(2) after he called the Waterloo Barrack the first time and experienced interference and noise, (but instead he chose to call Waterloo on his personal cell phone),
(3) after he called Waterloo on his cell phone, either
(i) immediately, or,
(ii) after a few minutes; when it should have been apparent to him that an unreasonable amount of time had passed and the traffic stop was no longer a temporary detention, and
(4) after Waterloo advised him to "stand by."
[5] We are not swayed by Sergeant Hughes's explanation that the distance between the traffic stop and the Rockville or Forestville Barracks prevented him from contacting them for fear of interference. When the Sergeant experienced interference with the Waterloo Barracks, he "immediately" switched to using his cell phone to diminish background noise. The Sergeant could have used his cell phone to call either the Rockville or Forestville Barracks. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333677/ | 281 S.C. 444 (1984)
316 S.E.2d 369
Larry SINGLETARY, Appellant,
v.
STATE of South Carolina, Respondent.
22096
Supreme Court of South Carolina.
May 8, 1984.
*445 William T. Toal, of Johnson, Toal & Battiste, P.A., Columbia, for appellant.
Atty. Gen. T. Travis Medlock, and Asst. Atty. Gen. Donald J. Zelenka, Columbia, for respondent.
May 8, 1984.
LITTLEJOHN, Chief Justice:
In May 1982, a jury convicted Larry Singletary, Appellant, of two counts of murder. The Appellant failed to perfect a direct appeal. This court issued a Certificate of No Return and dismissed the appeal. Appellant then filed for post conviction relief (PCR) alleging that the trial judge's charges were erroneous and that he had been denied his sixth amendment right to effective counsel. The PCR judge denied Appellant's petition, and this appeal followed. We affirm.
He would challenge the correctness of the judge's charge which included the following:
What is reasonable doubt? It is not an imaginary or fanciful doubt; it is a substantial doubt. It is a doubt which the words imply; a doubt for which you can give or assign a reason based on the testimony and the evidence in this case.... A reasonable doubt is a doubt which makes an honest, sincere, conscientious juror in search of the truth hesitate.... *446 Malice is the word suggesting wickedness, hatred, and a determination to do what one knows to be wrong without just cause or excuse or legal provocation. Malice is a term of art; a technical term importing wickedness and excluding just cause or excuse. It is something which springs from wickedness, from depravity, from a heart devoid of social duty and fatally bent upon mischief.... Malice is said to be expressed where there is manifested a violent, deliberate intention unlawfully to take away the life of another human being.
No objection was made to either of these charges.
Trial counsel filed notice of intent to appeal. Appellant's family hired other counsel to replace trial counsel. This counsel filed notice of intent to appeal, ordered the transcript, and served the State with a proposed case and exceptions. After reviewing the record and talking with the family, he decided not to perfect the appeal because he believed that an appeal would be frivolous.
He informed the family of this. He does not specifically recall telling Appellant that he was not perfecting the appeal. He does recall telling Appellant that he was not going forward with it and that Appellant should try PCR.
This court dismissed the appeal. Appellant then filed for PCR, alleging that:
(1) The above stated charges of the trial judge were erroneous and denied Appellant his due process rights; and
(2) The failure of his trial attorney to object to the charges and the failure of retained counsel to perfect the appeal amounted to ineffective assistance of counsel.
The PCR judge found that he had waived his right to appeal and had received effective assistance of counsel.
This court granted Appellant's petition for a writ of certiorari to review the waiver issue and allowed Appellant to brief any other trial errors. White v. State, 263 S.C. 110, 208 S.E. (2d) 35 (1974).
"On appeal from an order granting post conviction relief, our review is limited to whether there is any evidence to support the trial court's findings of fact." Greene v. State, 276 S.C. 213, 214, 277 S.E. (2d) 481, 481 (1981). A review of the record reveals that Appellant knew of his right to appeal and voluntarily waived that right. The PCR judge correctly found that Appellant waived his right to a *447 direct appeal. Nevertheless, in accordance with White v. State, we have reviewed the errors alleged to have occurred at trial.
Appellant failed to object to either of the charges by the trial judge. "... [T]he failure of a defendant to object to the charge as made or to request additional instructions, when the opportunity to do so is afforded, constitutes a waiver of any right to complain of errors in the charge." State v. Humphrey, 276 S.C. 42, 44, 274 S.E. (2d) 918, 918 (1981) (quoting State v. Todd, 264 S.C. 136, 139, 213 S.E. (2d) 99 (1975)).
Regardless of this waiver, neither charge is erroneous. "[I]t is not error to equate substantial doubt with reasonable doubt." State v. Butler, 277 S.C. 452, 458, 290 S.E. (2d) 1, 4 (1981), cert. denied, 459 U.S. 932, 103 S.Ct. 242, 74 L.Ed. (2d) 191 (1982) (quoting State v. Griffin, 277 S.C. 193, 198, 285 S.E. (2d) 631, 633 (1981)). The charge on malice, read in its entirety, has the approval of this court. State v. Judge, 208 S.C. 497, 38 S.E. (2d) 715 (1946).
Finally, the PCR judge's finding that Appellant's sixth amendment right to counsel was not violated is also supported by the evidence. Neither the trial counsel's failure to object to the judge's charges nor the retained counsel's failure to perfect an appeal amount to ineffective assistance of counsel. Marzullo v. Maryland, 561 F. (2d) 540 (4th Cir.1977).
Affirmed.
NESS, GREGORY and HARWELL, JJ., and PAUL M. MOORE, Acting Associate Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333786/ | 170 Ga. App. 86 (1984)
316 S.E.2d 548
BLUE CROSS & BLUE SHIELD OF GEORGIA/ATLANTA, INC.
v.
MERRELL.
67876.
Court of Appeals of Georgia.
Decided March 2, 1984.
Patrick L. Swindall, Michael Hurst, for appellant.
David H. Tisinger, Kevin B. Buice, for appellee.
BANKE, Judge.
The appellee sued the appellant insurer alleging that it wrongfully failed to pay her claim for medical expenses incurred as the result of her hospitalization for treatment of a pulmonary embolus, and a jury awarded her a bad-faith penalty and attorney fees in addition to damages. The appellant insurer had rejected the claim based on evidence that the treatment was for a pre-existing condition, the plaintiff having suffered a pulmonary embolus on two occasions prior to the effective date of her policy. On appeal, the insurer's sole contention is that the trial court erred in submitting the claim for a bad-faith penalty and attorney fees to the jury.
The appellee filed her complaint on June 24, 1982. Although she testified at trial that she had submitted her hospital bills to the appellant, there was no evidence indicating when she had done so. After submitting the bills, she had called the appellant's office on several occasions and had eventually been notified that her claim was denied because it involved a pre-existing condition. However, the record is silent as to when these calls were made. Held:
OCGA § 33-4-6 (formerly Code Ann. § 56-1206) provides as follows: "In the event of a loss which is covered by a policy of insurance and the refusal of the insurer to pay the same within 60 days after a demand has been made by the holder of the policy and a finding has *87 been made that such refusal was in bad faith, the insurer shall be liable to pay such holder, in addition to the loss, not more than 25 percent of the liability of the insurer for the loss and all reasonable attorney's fees for the prosecution of the action against the insurer." (Emphasis supplied.) It has been held that a failure to wait at least 60 days between making demand and filing suit constitutes an absolute bar to recovery of a bad-faith penalty and attorney fees under this statute. See Guarantee Reserve Life Ins. Co. &c. v. Norris, 219 Ga. 573 (134 SE2d 774) (1964). See also Columbus Fire & Safety Equip. Co. v. American Druggist Ins. Co., 166 Ga. App. 509 (304 SE2d 471) (1983), construing OCGA § 10-7-30 (b), a virtually identical statute.
We reject the appellee's contention that the dates on the medical bills themselves, which were issued in September and October 1981, constitute circumstantial evidence that the demand was made sufficiently in advance of her complaint. Furthermore, the mere submission of the bills would not necessarily constitute an actual demand for payment within the meaning of the statute. See Guarantee Reserve Life Ins. Co. &c. v. Norris, supra, at 575, holding that "[s]tanding alone a proof of loss is not a demand for payment thereof under the plain provisions of the statute . . ." The award of the bad-faith penalty and attorney fees is accordingly reversed.
Judgment reversed in part. Shulman, P. J., and Pope, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333788/ | 316 S.E.2d 736 (1984)
James Richard EDENTON
v.
COMMONWEALTH of Virginia.
Record No. 831312.
Supreme Court of Virginia.
June 15, 1984.
*737 R. Wayne Dawson, Richmond, for appellant.
Wayne T. Halbleib, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., Walter A. McFarlane, Deputy Atty. Gen., on brief), for appellee.
Present: All the Justices.
PER CURIAM.
The principal question presented by this appeal is whether the misdemeanor of which the accused was convicted was a lesser-included offense of the felony of which he was indicted.
The indictment charged that "James Richard Edenton did operate a motor vehicle... after having been found to be an habitual offender ... and while the order of the court prohibiting such operation was still in effect" in violation of Code § 46.1-387.8.[1] At trial, defendant introduced as an exhibit a certified copy of a judgment entered by a circuit court in another circuit holding that the order adjudicating Edenton an habitual offender was void for lack of personal jurisdiction. Upon consideration of that exhibit, the trial court, sitting without a jury, entered judgment convicting Edenton of "operating a motor vehicle without a valid operator's license (Virginia Code Section 46.1-349[2]), a misdemeanor and lesser included offense under the indictment."
A person indicted of a felony may be convicted of any offense which is "substantially charged in the indictment, whether it be felony or misdemeanor." Code § 19.2-285. But, defendant contends, the misdemeanor of which he was convicted is not an *738 offense lesser-included in the felony of which he was indicted.
In Ashby v. Commonwealth, 208 Va. 443, 158 S.E.2d 657 (1968), cert. denied, 393 U.S. 1111, 89 S.Ct. 884, 21 L.Ed.2d 808 (1969), one of the questions on appeal was whether, as the accused argued, the misdemeanor of indecent exposure was an offense lesser-included in the felony of sodomy. Analyzing a statutory predecessor of Code § 19.2-285, we said:
An accused can be acquitted of the greater offense charged in the indictment and at the same trial convicted of lesser offenses if the lesser offenses "be substantially charged in the indictment." [Citation omitted.] But an indictment charging a greater offense can be considered as also charging only those lesser offenses the elements of which are elements of the greater offense, and the accused can be convicted under the indictment only of the greater offense or of such lesser offenses. [Citation omitted.]
Indecent exposure, though it may occur in almost all cases of sodomy ... is not a fact that must be charged or proved to sustain a conviction of sodomy in any case .... Therefore, indecent exposure is not a lesser offense included in the offense of sodomy ....
208 Va. at 444-45, 158 S.E.2d at 658.
The act of operating a motor vehicle on the highways of this Commonwealth is a fact common to the offenses defined in Code §§ 46.1-349 and 46.1-387.8. But the character of the acts proscribed in those statutes is different. The gravamen of the misdemeanorthe crucial elementis the act of operating a motor vehicle by a driver who has not obtained a valid operator's license by making a lawful application and passing the required examination. The gravamen of the felony is the act of operating a motor vehicle by a driver who has been convicted of multiple violations of the traffic laws and formally adjudged to be a danger to other users of the highways. Just as indecent exposure "is not a fact that must be charged or proved to sustain a conviction of sodomy", Ashby, 208 Va. at 445, 158 S.E.2d at 658, the act of driving without a valid operator's license proscribed by Code § 46.1-349 is not a fact that must be charged or proved to sustain a conviction of the felony defined in Code § 46.1-387.8. Consequently, the misdemeanor is not a lesser-included offense.
Nevertheless, the Attorney General reasons that "[i]t is arguable that the last paragraph of § 46.1-387.8 ... was designed to evidence the legislature's understanding" to the contrary. That paragraph provides, in part, that when a driver is charged with the misdemeanor of driving without a license, a district court must certify the case to a circuit court if it determines that the driver previously has been adjudicated an habitual offender.
The Attorney General's argument overlooks a significant fact, one the General Assembly is presumed to have known. Even in this age of computerized information, there remain administrative delays incident to the gathering, publication, and dissemination of statewide driving records. Handicapped by such delays, a district court may be unable to discover the existence of an habitual offender order before it convicts the accused of the misdemeanor charge. In such case, the driver would be immunized from punishment for the felony he had committed, because conviction of a lesser-included offense bars prosecution of the offense in which it is included. Myers v. Commonwealth, 148 Va. 725, 730, 138 S.E. 483, 484 (1927). Such a result would effectively defeat the public policy goals declared in the Habitual Offender Act, see Code § 46.1-387.1, and we reject the Attorney General's reasoning.
We hold that the misdemeanor defined in Code § 46.1-349 is not an offense substantially charged in the indictment of a violation of Code § 46.1-387.8 and, hence, that the trial court erred in convicting the defendant of the misdemeanor. We will reverse the judgment and dismiss the case.
Reversed and dismissed.
NOTES
[1] § 46.1-387.8. Operation of motor vehicle by habitual offender prohibited; penalty; enforcement of section. It shall be unlawful for any person to operate any motor vehicle in this State while the order of the court prohibiting such operation remains in effect, except that such an order shall not operate to prevent or prohibit such person from operating a farm tractor upon the highways when it is necessary to move such tractor from one tract of land used for agricultural purposes to another tract of land used for the same purposes, provided that the distance between the said tracts of land shall not exceed five miles. Any person found to be an habitual offender under the provisions of this article who is thereafter convicted of operating a motor vehicle in this State while the order of the court prohibiting such operation is in effect, shall be punished by confinement in the penitentiary not less than one nor more than five years or, in the discretion of the jury or the court trying the case without a jury, by confinement in jail for twelve months and no portion of such sentence shall be suspended, except that in cases wherein such operation is necessitated in situations of apparent extreme emergency which require such operation to save life or limb, said sentence, or any part thereof may be suspended.
For the purpose of enforcing this section, in any case in which the accused is charged with driving a motor vehicle while his license, permit or privilege to drive is suspended or revoked or is charged with driving without a license, the court before hearing such charge shall determine whether such person has been held an habitual offender and by reason of such holding is barred from operating a motor vehicle on the highways of this State. If the court determines the accused has been so held, it shall certify the case to the court of record of its jurisdiction for trial.
[2] § 46.1-349. Driving without license prohibited; penalties.(a) No person, except those expressly exempted in §§ 46.1-352 through 46.1-356 shall drive any motor vehicle on any highway in this State until such person shall have made application for an operator's or chauffeur's license, as hereinafter provided, and satisfactorily passed the examination required by § 46.1-369 and obtained either an operator's or chauffeur's license, nor unless such license issued to such person is valid.
(b) Upon a first conviction of a violation of this section, the penalty imposed shall be as provided in § 46.1-387. Upon a second or subsequent conviction of a violation of this section, which second offense shall have occurred within one year of a first offense, the penalty shall be imprisonment in jail for not less than ten days nor more than six months, and, in addition, may be a fine not less than one hundred dollars nor more than five hundred dollars. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333666/ | 253 Ga. 67 (1984)
316 S.E.2d 457
FAIRCLOTH
v.
THE STATE.
40656.
Supreme Court of Georgia.
Decided June 12, 1984.
Manning & Leipold, Calvin A. Leipold, Jr., for appellant.
Robert E. Wilson, District Attorney, John H. Petrey, Assistant District Attorney, Michael J. Bowers, Attorney General, Dennis R, Dunn, for appellee.
CLARKE, Justice.
Appellant was indicted and tried in DeKalb County for the murder of his wife and for burglary and aggravated assault upon Jack Moody. He was convicted of felony murder, aggravated assault and criminal trespass. He was sentenced to life for murder, and twelve months concurrently on the trespass; no sentence was entered on the aggravated assault which was merged into the felony murder. He appeals the murder conviction to this court and we affirm.
Appellant and the victim had been married since 1960. It became evident in 1981 that there were problems in the marriage. The victim worked as a counselor and assistant director at St. Jude House, a center for those with alcohol and drug problems. The victim was the counselor of Jack Moody at St. Jude's and a friendship developed which was known to appellant. There was evidence that Moody and the victim began seeing each other on a more personal level in the fall of 1982. There were several encounters and arguments between the appellant and his wife and the appellant and Moody over this relationship.
In December of 1982 appellant had an argument with his wife about her relationship with Moody and became angry when she would not reveal where Moody lived. During this incident appellant struck her about the face several times; the confrontation ended when the police arrived. At this point his wife moved into her own apartment.
During this period there was evidence that appellant had been following his wife and recording her movements on a calendar and had taped her phone conversations. On January 29, 1983, appellant was unable to find his wife at her apartment and drove by the home of Moody where he saw his wife's car. He walked around the house and saw his wife and Moody reading the newspaper.
Appellant retrieved a .38 automatic pistol and a camera from his car and entered the house. Moody and the victim had gone to bed. Appellant proceeded into the dark bedroom, jerked the covers off the bed and took a picture.
*68 Moody testified that after the flash of the camera appellant fired the pistol once and then used the pistol to strike him on the head. Appellant testified that after he took the picture, Moody reached for the nightstand. He stated that he believed there was a gun in the nightstand and struck Moody on the head with his gun which then accidentally discharged. The bullet from the single shot struck the victim in the arm and traveled through her chest. Appellant called for emergency medical treatment and left. He returned shortly and was arrested on the scene. The gun, camera and a tape recorder were found in his car by the police.
1. During the trial Moody testified as to three previous incidents involving confrontations and conversations between himself and the appellant. Each was brought on by Moody's relationship with appellant's wife and occurred between September and December of 1982. The defense objected to this testimony on the grounds of relevancy and hearsay. The trial court ruled the testimony was relevant; testimony of statements made by appellant to Moody was allowed in and the court disallowed other statements attributable to Mrs. Faircloth. We find no error.
Evidence of the previous difficulties between the victim and the accused, occurring within three months of, and leading up to, the killing was relevant to show the state of mind and motives of the appellant. Blalock v. State, 250 Ga. 441 (298 SE2d 477) (1983). Appellant's statement to Moody that nobody was going to get his wife away from him was also admissible to show state of mind and motive. Dover v. State, 250 Ga. 209 (296 SE2d 710) (1982).
2. Prior to trial the defense filed a motion pursuant to OCGA § 17-7-211 for production of scientific reports. Copies of all written reports were supplied by the state prior to trial. The appellant contends that testimony of Kelly Fite, firearms examiner for the state crime lab, concerning a spent cartridge in the murder weapon, should have been stricken because no written report on that subject was submitted. Fite testified that he examined firing pin impressions on the spent cartridge from the murder weapon to determine if there had been multiple strikes on the cartridge case. He then said that there was no difference between a cartridge with one strike and one with many strikes. OCGA § 17-7-211 attaches only when there is a writing. Law v. State, 251 Ga. 525 (307 SE2d 904) (1983). All written reports were produced and the prosecution violated no right of the accused.
3. Appellant next contends that it was error to overrule his hearsay objection to the testimony of Officer Lane. Lane was the police officer called to the home of the Faircloths on the morning of December 14, 1982. A co-worker of Mrs. Faircloth had driven to the home to give her a ride to work. When she arrived appellant and his wife were outside and the appellant was armed and threatened the co-worker *69 who drove away and phoned police.
Officer Lane testified that when he arrived at the home he observed redness around Mrs. Faircloth's face and head. Lane stated that he asked what the problem was and Mrs. Faircloth replied that her husband hit her several times and put a gun to her head. Appellant told Lane that the gun was not loaded. The objection was to Lane's testifying as to the statement made by Mrs. Faircloth.
Hearsay is defined in Georgia as evidence "which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons." OCGA § 24-3-1. At trial the prosecution relied on Broome v. State, 141 Ga. App. 538 (233 SE2d 883) (1977), which states that a witness may testify as to statements made by others in the presence of the accused. See also Hewitt v. State, 127 Ga. App. 180 (193 SE2d 47) (1972). Hewitt involved testimony of eyewitnesses to the crime and held that what they saw and heard in the defendant's presence was not hearsay. This conclusion was apparently based upon the fact that since the defendant was also present he could utilize a full and thorough cross-examination to challenge their testimony.
The problem with this analysis is apparent in the present case. The out-of-court declarant whose veracity would be at issue as to whether or not her husband hit her is Mrs. Faircloth who, of course, is now unavailable. The statement was not an outburst at the time of the crime charged but was made over a month before.
The presence of the party against whom a statement is offered has been considered relevant when considering hearsay but the presence is significant only when the issue is whether the accused heard the statement or had acquiesced in the statement. McCormick on Evidence, § 246 at p. 586. We note that presence of the out-of-court declarant at trial is also relevant and the modern trend is to allow the out-of-court (hearsay) statements of such witnesses because they may be directly cross-examined. McCormick, supra, § 251.
Even though hearsay, any error in its admission in this case would be harmless. Appellant himself testified that he struck his wife on that day because she had lied to him about her relationship with Moody. In addition it was cumulative of other evidence of the deteriorating marital relationship between the Faircloths.
4. The trial court included a charge on the offense of Peeping Tom in the charge to the jury. Appellant contends this was error because it was not alleged in the indictment and was not a lesser included crime of any indicted charge. Again we find no harm to the appellant. Examining the charge it is clear that in charging on felony murder the court instructed the jury that felony murder could only be found if the accused was in the commission of an aggravated assault or burglary. These were offenses included in the indictment and of *70 which the accused was on notice as required by our recent holding in McCrary v. State, 252 Ga. 521 (314 SE2d 662) (1984). Since the charge was not included in the felony murder charge and the appellant was not convicted of Peeping Tom, no harm has been shown.
5. Appellant also contends it was error not to grant a mistrial after the prosecuting attorney made what is contended to be an improper statement during closing argument. Pretermitting the issue of the propriety of the remarks, we find that the court's statements to the jury and counsel at the time of the objection and motion were sufficient to overcome the objection.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333670/ | 170 Ga. App. 32 (1984)
316 S.E.2d 6
LEVITT
v.
THE STATE.
67230.
Court of Appeals of Georgia.
Decided February 8, 1984.
Rehearing Denied February 28, 1984.
Adam P. Cerbone, for appellant.
Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.
SHULMAN, Presiding Judge.
Appellant was convicted of armed robbery and moved for a new trial on the grounds that he was incompetent to stand trial and that the trial court erred in denying his motion to suppress the evidence obtained in a warrantless search of his motel room. This appeal follows the trial court's denial of appellant's motion.
1. The trial court construed appellant's motion in regard to his alleged incompetence to stand trial as an extraordinary motion for new trial, since the objection was not raised at trial and the contention was based solely on newly discovered evidence not contained in the record.
An extraordinary motion for new trial is not directly authorized by statute in this state but is indirectly authorized by OCGA §§ 5-5-40, 5-5-41. Dick v. State, 248 Ga. 898 (1) (287 SE2d 11). The requirements for a successful extraordinary motion for new trial based on newly discovered evidence are set out in Dick, supra, p. 900. The key determination to be made in the present case is whether the newly discovered evidence is so material that it would probably produce a different verdict.
"[T]he issue of mental competency to stand trial is the same whether raised before, during or subsequent to trial, and if, in fact, [appellant] was not competent at the time of his trial but is now competent to stand trial, a new trial should be granted." Smalls v. State, *33 153 Ga. App. 254, 256 (265 SE2d 83). In Smalls, this court recognized the dilemma facing a trial judge in determining a person's competency, noting that he must rely on opinions of psychiatrists as to an individual's mental condition, which opinions are imprecisely based on observation, behavior, and what an individual chooses to tell a psychiatrist about his background and actions. The court concluded that a person's mental condition is at best an "educated guess" except in the most extreme cases.
Appellant's counsel averred by affidavit that appellant was extremely uncooperative in the preparation of his defense. Appellant refused to discuss the circumstances surrounding his arrest and also refused to reveal where he was from or the names of any relatives. Subsequently, appellant informed his counsel that he wished to plead guilty, but his plea was rejected by the trial court. At trial, appellant agreed to testify in his own behalf, but reconsidered and refused to do so.
After appellant's conviction, his parents learned of their son's incarceration and promptly drove from Illinois to Savannah to talk with appellant's counsel. They informed appellant's counsel that appellant had previously been confined to a psychiatric ward after he had been arrested in 1974 for discharging a firearm in front of a police station and for possession of marijuana. Any record of those offenses had been expunged from the system pursuant to the Illinois First Offender Act.
The Supreme Court, in Crawford v. State, 240 Ga. 321, 326 (240 SE2d 824), stated that the issue in a case such as the one at bar is whether the defendant understood the nature and object of the proceedings against him, whether the defendant rightly comprehended his own condition in reference to such proceedings, and, finally, whether the defendant was capable of rendering effective assistance to his attorney in the preparation of his defense. In connection with the last criterion, it is well settled that the relevant inquiry is not whether the defendant would assist in his defense, but whether he could do so. Banks v. State, 246 Ga. 178 (3) (269 SE2d 450).
Upon request by defense counsel, the trial court ordered a psychiatric examination of appellant. At the hearing on appellant's motion for new trial, Dr. Miguel D. Bosch, the state psychiatrist, testified that appellant was initially uncooperative when he attempted to talk to him. The doctor stated that after several visits, appellant inexplicably began to cooperate and that he also agreed to take medication that he had previously refused. Dr. Bosch was unable to finish his analysis of appellant because of appellant's transfer to the corrections facility in Jackson. Even so, the doctor was able to testify that appellant did not suffer from specific delusional beliefs of persecution nor was he overly psychotic or out of touch with reality. Additionally, *34 Dr. Bosch stated that appellant was aware of the import of the charges against him and that he was in court because of it. He also admitted that it was in fact possible that appellant's refusal to cooperate with his attorney could have stemmed from a simple unwillingness to communicate. However, while acknowledging the inconclusiveness of his analysis, Dr. Bosch stated that it was his opinion that appellant suffered from a paranoiac condition that would preclude appellant from effectively assisting his attorney in the preparation of his case. Therefore, in essence, Dr. Bosch testified that appellant met the first two requirements outlined in Crawford, but failed to satisfy the final one because of his paranoiac condition.
Based on its observation of the trial and the testimony of Dr. Bosch and defense counsel, the trial court ruled that appellant's mental condition at the time of the trial was such that he adequately understood the nature of the charges against him and that he was capable of cooperating with his attorney if he had so chosen. The trial court was authorized to draw such a conclusion since it, as the trier of fact, is not bound by the opinion of an expert witness and may find an accused sane even without positive testimony as to sanity. Moses v. State, 245 Ga. 180, 181 (263 SE2d 916). Furthermore, "[a]pplications for new trial are in large part addressed to the sound discretion of the trial court. [Cit.]" Allanson v. State, 158 Ga. App. 77, 78 (279 SE2d 316).
Accordingly, after a review of the evidence adduced at the hearing, and especially in light of Dr. Bosch's equivocal testimony, we find no abuse of discretion on the part of the trial court in the present case. Since the newly discovered evidence was not so material as to demand a different verdict, appellant's extraordinary motion for new trial was properly denied by the trial court.
2. Appellant's final enumeration of error involves the trial court's denial of his motion to suppress evidence seized in his motel room at the time of his arrest. The evidence at trial revealed that on the morning of November 6, 1981, a man with a gun approached the head teller of the Garden City branch of the Trust Company Bank and demanded that she fill a paper bag with money. She complied with the gunman's request, but she was also able to put a dye bomb in the bag along with the money. The robber then fled. When the Garden City Police answered the bank's alarm, the branch manager gave them a description of the man and pointed the officer in the direction he had escaped. The officers then encountered a man who had been in foot pursuit of the robber. He gave the same description of the man as the one that had been given by the bank manager. The officers were in the process of sealing off the immediate area when they received a report that the owner of a nearby motel had seen a man fitting the description of the bank robber go into one of the rooms at *35 the motel. The police officers went to the room specified by the owner, knocked on the door, and identified themselves. A man who fit the description of the bank robber, and who was later identified as appellant, opened the door. He had stains on his clothes that appeared to be red dye, and his room was engulfed in tear gas fumes. An officer put appellant against a wall, frisked him, and read him his Miranda rights. After an inquiry by the arresting officer, appellant told him that the money was in a trash can in the bathroom and that the gun was in a briefcase under the bed.
Appellant claims that his arrest was illegal since it was effected without a warrant and that, as a result, the money and the gun were illegally seized. Appellant further contends that, even if the arrest itself was legal, the evidence was still illegally seized because it was not within appellant's "immediate presence." See OCGA § 17-5-1.
We hold that the arrest of appellant was legal since probable cause for his arrest obviously existed after the police officers observed the red dye on appellant, the tear gas fumes in his room, and appellant's resemblance to all of the descriptions given of the robber. Starr v. State, 159 Ga. App. 386, 388 (283 SE2d 630). Furthermore, there likely would have been a "failure of justice as a matter of law" had the arresting officer delayed the arrest until a warrant could have been obtained. Durden v. State, 250 Ga. 325 (1) (297 SE2d 237). The facts of this case involved such "exigent circumstances" as to authorize appellant's arrest without a warrant. Warden v. Hayden, 387 U.S. 294, 298 (87 SC 1642, 18 LE2d 782).
As stated above, after appellant was given his Miranda rights, he voluntarily disclosed the location of the money and the gun. Therefore, the seizure of the evidence was legal since it was consented to by appellant. Abrams v. State, 223 Ga. 216 (4) (154 SE2d 443). It follows that the trial court properly denied appellant's motion to suppress.
Judgment affirmed. McMurray, C. J., and Birdsong, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333671/ | 170 Ga. App. 230 (1984)
316 S.E.2d 583
CHEEK
v.
THE STATE.
67676.
Court of Appeals of Georgia.
Decided March 12, 1984.
Kenneth E. Lucas, for appellant.
*234 James L. Wiggins, District Attorney, James E. Turk, Assistant District Attorney, for appellee.
McMURRAY, Chief Judge.
Defendant was convicted of the offense of theft by receiving stolen property (the engine and the transmission of a 1979 Pontiac Trans Am automobile). The Pontiac automobile was stolen from a motel in Warner Robins, Georgia as reported to the local police on February 8, 1980.
The defendant appeals following the denial of his motion for new trial as amended. Held:
1. Approximately one year after the automobile was reported as stolen, an abandoned stripped vehicle was found in the woods in another county (where this trial took place). By and through investigation with the use of the National Crime Information Center and the Georgia Crime Information Center it was determined to have been stolen from the owner in Warner Robins and had been reported stolen as shown above. Approximately a year after the abandoned *231 stripped automobile was found the sheriff was provided with information as to the whereabouts of the engine that had been taken from that automobile. Further information disclosed that another person had purchased an Oldsmobile automobile from the defendant, and the engine in that automobile was determined to have the same vehicle identification number as that of the stolen automobile. An arrest warrant was obtained for the defendant. At the time the arrest warrant was served the defendant made explanations to the officers as to where he had gotten the engine he had installed in the Oldsmobile. At this point in time the defendant was advised of his Miranda rights. One of the investigators asked the defendant if he could examine the original engine which had been removed from the Oldsmobile, and while inspecting the engine he observed a transmission. The defendant admitted that the transmission had been attached to the engine he bought from another person. The VIN number on the transmission. also corresponded to the one which came out of the stolen Pontiac automobile. Further investigation by the officers failed to disclose the location of the individual from whom the defendant had allegedly purchased the engine and transmission. The substance of all of the above facts was disclosed by the state's evidence.
The defendant contends the trial court erred in failing to grant a directed verdict of acquittal at the close of the state's case in chief in that the state failed to prove the defendant knew the engine and transmission were stolen or that he should have known they were stolen and there was a fatal variance between the "allegata et probata" as to the indictment. Mere proof of possession, even though in the absence of an explanation, is not enough evidence to support a verdict of guilty, but such possession, coupled with facts and circumstances from which knowledge may be inferred that the property so received was stolen is sufficient to support the verdict. See Austin v. State, 89 Ga. App. 866 (2), 868-869 (81 SE2d 508). The evidence included contradictory statements by the defendant, as well as other facts which the jury might have found sufficient to excite the suspicions of the defendant as a reasonable man that the motor and transmission were stolen. Defendant contends that the state's evidence did not exclude the reasonable hypothesis that the defendant had bought this engine and transmission from another person, citing Walker v. State, 157 Ga. App. 728 (278 SE2d 487), and Wood v. State, 156 Ga. App. 810 (275 SE2d 694). The facts of the case sub judice are different from those in Wood v. State, supra, which is inapposite. We note that the ruling of Walker v. State, supra, is that a rational trier of fact could reasonably have found from the evidence adduced proof of the defendant's guilt beyond a reasonable doubt. Here the state investigated the defendant's claims with reference to where he obtained the stolen property and found no basis for same in trying to locate the individual *232 from whom he allegedly purchased the stolen property. Only where a verdict of acquittal is the only legal finding possible is the trial court required to direct a verdict. See Summers v. State, 99 Ga. App. 183, 184 (1) (108 SE2d 140); Merino v. State, 230 Ga. 604 (1), 605 (198 SE2d 311).
Even if the recent cases of our appellate courts in some manner have changed the rule as set forth above as in Merino v. State, 230 Ga. 604 (1), 605, supra, and its progeny, in following Jackson v. Virginia, 443 U.S. 307, 319 (99 SC 2781, 61 LE2d 560), the trial court did not err in refusing to grant the motion for directed verdict of acquittal. See Lee v. State, 247 Ga. 411, 412 (6) (276 SE2d 590); Bankston v. State, 251 Ga. 730 (309 SE2d 369), rev'g s.c., 165 Ga. App. 184, 185 (299 SE2d 85). But see State v. Royal, 247 Ga. 309, 310 (275 SE2d 646), citing Merino, supra, and also see Conger v. State, 250 Ga. 867, 870 (301 SE2d 878). The evidence was sufficient for the trial court to determine that the fact finder, the jury in the case sub judice, could reasonably have found the defendant guilty beyond a reasonable doubt, and upon our examination of the record and transcript we also so find.
With reference to the value of the stolen property the defendant himself told one of the state agents that he bought the engine for $200 and he also testified that he was knowledgeable about automobile parts and could get an engine and transmission for $250 to $300. There was other evidence presented that the defendant himself had tried to sell a transmission for $125. While all of this evidence failed to establish the value of the engine and transmission as amounting to $800 as alleged in the indictment, nevertheless there was ample evidence to show its value is greater than $100 (a misdemeanor), and there was no specific objections to this evidence at trial which precludes appellate review with reference to the value of the allegation ($800) to meet the proof (greater than $100). See Moore v. State, 138 Ga. App. 902, 903 (6) (227 SE2d 809). As to the argument that there was a failure of venue, slight evidence is sufficient to establish same where there is no conflicting evidence at trial. See Carter v. State, 146 Ga. App. 681 (247 SE2d 191); Cole v. State, 162 Ga. App. 353 (1) (291 SE2d 427). We find no merit in the first two enumerations of error.
2. It was contended next that the sheriff had given hearsay testimony as to what another person had told him that the automobile was stolen in Warner Robins, had been stripped, and the defendant had put the engine out of the stolen automobile into another. Other testimony proved all of these facts, but even so, this testimony by the sheriff is original evidence to explain the conduct of the officers in investigating the case. See OCGA § 24-3-2 (formerly Code Ann. § 38-302); Simpson v. State, 159 Ga. App. 235, 237 (4) (283 SE2d 91). There is no merit in this complaint.
*233 3. Defendant's next enumeration of error is to the denial of his objection to the testimony of the witness who advised the sheriff that the engine and transmission had been stolen from the Trans Am automobile. This testimony merely spearheaded the investigation as to the defendant's participation in the case. Apparently the only testimony that this witness gave with connection to this case was that she was related to the defendant (her brother-in-law), and she identified a photograph of a Trans Am automobile which picture was shown to her by the wife of the defendant, as being the same as state's Exhibit 1, a newspaper article with a picture of the recovered automobile. Her testimony did not get into the information she had furnished the sheriff. Later in defense the defendant's wife was called and testified, denying that she had shown any such picture to this witness. The object of all legal investigation is the discovery of the truth as recently stated and held in Gibbons v. State, 248 Ga. 858 (286 SE2d 717), here we find no merit in the objection that her testimony was purely hearsay. Again see Simpson v. State, 159 Ga. App. 235, supra.
4. The next enumeration of error we consider is that the trial court erred in failing to exclude the testimony of a witness that he had heard the defendant offering to sell a transmission for the value of $125. Defendant contends that this testimony was merely "a transmission" and not the transmission allegedly stolen. The stolen transmission having been found in the defendant's possession this evidence was material and relevant to show value, and we find no merit in this complaint inasmuch as the defendant's objection that same was hearsay was not subject to objection.
5. The remaining enumeration of error is that the trial court erred in allowing the prosecutor to make statements over objection during cross-examination of the defendant as a witness regarding irrelevant and prejudicial matters. The defendant's wife had testified, and the question asked of the defendant was that the wife had participated in the theft of the automobile in Houston County. The defendant replied, "no sir." The defendant further vehemently denied that he knew anything about the stolen automobile, that he had merely purchased the engine and transmission and had installed the engine and possessed the transmission and did not know they were stolen. As the state was entitled to a thorough and sifting cross-examination we find no merit in this complaint. See OCGA § 24-9-64 (formerly Code Ann. § 38-1705); Dampier v. State, 245 Ga. 427, 434 (12), 435 (265 SE2d 565); Morris v. State, 150 Ga. App. 94, 95 (256 SE2d 674).
Judgment affirmed. Deen, P. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333672/ | 170 Ga. App. 287 (1984)
316 S.E.2d 797
GRIFFIN
v.
THE STATE.
67726.
Court of Appeals of Georgia.
Decided February 29, 1984.
Rehearing Denied March 14, 1984.
*294 Ronald G. Shedd, for appellant.
F. Larry Salmon, District Attorney, William H. Boggs, Assistant District Attorney, for appellee.
DEEN, Presiding Judge.
At approximately 8:00 p. m. on June 27, 1979, Jerry Penney, having passed out at Eva's Tavern in Rome, Georgia, was arrested and placed in the police station drunk tank. At that time, Penney had no noticeable injuries. Around midnight, following his arrest for being drunk and disorderly, the appellant, Nathaniel Griffin, was placed in the same drunk tank. Penney was lying on the floor, still unconscious and unharmed.
Penney's position during the remainder of the night was somewhat in dispute. Steve Vasil was also placed in the drunk tank from approximately 1:30 a. m. until 2:15 a. m., and he recalled that Penney had gotten up and lain down on the concrete slab next to the appellant. The police officer who placed Vasil in the cell and later retrieved him, however, claimed that Penney's position on the floor had not changed. When one officer went to the drunk tank around 8:00 a. m., he found Penney sprawled out, with his pants removed, on the floor next to the shower stall; there were noticeable injuries to Penney's head, and there was blood on the cell floor and walls. The appellant was sitting on the concrete slab.
When questioned, the appellant explained that he did not know what had happened to Penney. When he was put into the drunk tank, he had gotten Penney off the floor and placed him on the cell's concrete slab along the wall which served as seating. The appellant then fell asleep until he subsequently was awakened when Vasil was placed in the cell. At that time, he noticed Penney on the floor and bleeding from the nose and mouth. He got Penney back onto the concrete seating, removed and wet his own undershirt, and wiped Penney's face. After Vasil was removed from the cell, the appellant had unrolled toilet paper onto the cool concrete and had gone to sleep. At trial, the appellant recounted essentially the same explanation.
Dr. Charles Sennett examined Penney at the hospital emergency room shortly afterwards, and observed multiple bruises and contusions about his head and face. A CT scan revealed a blood clot on the *288 brain. Other tests revealed a blood alcohol content of .162 percent and a barbiturate level of 0.9. (Dr. Sennett estimated that Penney's blood alcohol content at the time of his arrest probably approached .4 percent.) Neurosurgery was performed to remove the clot, but significant brain damage had already occurred and Penney remained comatose until his death on March 18, 1982 (resulting from a gunshot wound to the chest). During the autopsy, Dr. Sennett found that 75 percent of Penney's brain had been destroyed, and that that damage had occurred in excess of several months earlier. The physician explained that the brain injury resulted from internal movement of the brain, which could have been caused by violently shaking, or by falling and striking one's head, or by forceful blows to the head.
Dr. Harris Pittman performed the neurosurgery on Penney on June 28, 1979, and noted that Penney would never again have led a functional existence because of the extensive brain damage. Dr. Pittman felt that the trauma to Penney's head could have been inflicted by anything from a wall to a shoe or fist, but he thought that it would be stretching one's imagination to believe that the injuries could have resulted from falling off the drunk tank concrete seating. While he acknowledged the possibility that the head injuries could have resulted from falling in the shower stall and striking the head on the concrete ledge and on the floor, Dr. Pittman nevertheless favored the theory of a severe beating.
The appellant was released soon after the interrogation, and, other than a month-long sojourn in Chattanooga, Tennessee, he remained in the Rome area until February 1981, when he relocated to his brother's residence in Vacaville, California. On or about August 15, 1981, according to Officer Jan Makowski of the Vacaville police department, the appellant approached him in the station parking lot and indicated that he wanted to talk to him about having killed someone. At the time, the appellant held an unfinished bottle of beer, walked unsteadily, and had an odor of alcohol on his breath. Makowski informed the appellant of his Miranda rights, despite the appellant's protests that he already knew them. The appellant then divulged that while in jail in Rome, Georgia, he had knocked unconscious another cellmate in a fight, and that the victim had been in a coma ever since and very likely had died. Immediately following the interview, Makowski placed the appellant under arrest for public drunkenness and sent a teletype inquiry to the Rome police department regarding the appellant's story. The appellant was released from custody hours later, however, before a responsive teletype was received. A few days later, Rome police officers arrived and arrested the appellant. The appellant subsequently denied approaching Makowski and making the statement, and instead claimed that Makowski had driven past him, pulled over, and arrested him for public *289 drunkenness.
Following his trial and conviction for aggravated battery, the appellant was sentenced to 20 years' imprisonment. On appeal, he contends that the trial court erred with several evidentiary rulings; that the trial court erred in not declaring a mistrial because of improper questioning or comments made by the prosecutor; that the trial court erred in allowing the prosecutor to refer to the appellant's moving to California as flight from the jurisdiction and in instructing the jury on the law of flight; that the trial court erred in sentencing the appellant to the maximum sentence under the recidivist statute; and that the evidence was insufficient to support the verdict. Held:
1. The appellant contends that the trial court incorrectly allowed the jury to hear the testimony about the appellant's confession in California, because the court never made a finding that the confession had been voluntary. Review of the record does not substantiate that contention.
"[A] jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given. The rule allows the jury, if it so chooses, to give absolutely no weight to the confession in determining the guilt or innocence of the defendant but it is not for the jury to make the primary determination of voluntariness. Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity." Sims v. Georgia, 385 U.S. 538, 543-544 (87 SC 639, 17 LE2d 593) (1967); Payne v. State, 249 Ga. 354, 359-360 (291 SE2d 226) (1982). In the instant case, following a Jackson-Denno hearing, the trial court specifically held that the appellant's constitutional safeguards had been observed and that there was sufficient evidence to find that the appellant had been aware of what he was doing. The clear and unmistakable meaning of that ruling was that the appellant had been advised of and understood his rights, and that he had voluntarily chosen to waive those rights. The trial court properly allowed the jury to consider the evidence of the appellant's confession.
2. The appellant also contends that the trial court erred in admitting several physical items removed from the drunk tank following the incident, including a pair of boots, tissue paper, a comb, a matchbook, a pair of blue jeans, a white undershirt, and a pair of black socks. However, despite the inability of the various police custodians to recount an uninterrupted chain of custody, the officer who collected the items from the drunk tank identified them as the same articles, or at least what appeared to be. "Unlike more fungible articles, the exhibits [in this case] could be identified upon mere observation; therefore, it was not necessary to trace their custody by requiring each custodian of the exhibits to testify." Lord v. State, 134 Ga. *290 App. 683, 684 (215 SE2d 493) (1975); accord, Benson v. State, 164 Ga. App. 19 (295 SE2d 579) (1982).
Moreover, there is nothing to substantiate the appellant's speculative fear that the articles might have been tampered with before reaching the crime lab. The appellant himself claimed to have wiped blood off Penney's face with his undershirt, and the crime lab was able only to determine generally that human blood was on the clothing, and could not specify which type. Under these circumstances, even were a strict chain of custody of these distinct, physical objects required, no harm resulted from the lack of it.
3. The appellant also contends that the trial court erred in admitting Detective Barnett's testimony about his inquiry with the other prisoners in the cell block concerning any knowledge they might have about the Penney incident, on the grounds that it constituted inadmissible hearsay, as well as that officer's testimony that there was blood on the appellant's clothing, on the grounds that it was inadmissible opinion evidence.
The court allowed Barnett to recount that when he had asked other prisoners whether they had seen or heard anything happen in the drunk tank, no one had responded. OCGA § 24-3-2 provides that "[w]hen, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence." This code section, however, permits the admission of such evidence only when "the conduct and motives of the actor are matters concerning which the truth must be found (i.e., are relevant to the issues on trial)." Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982); Little v. State, 165 Ga. App. 389, 391 (300 SE2d 540) (1983). In this case, the elicited testimony served to explain the conduct of the investigating officer, and this specific conduct was not relevant to the issue at trial. Notwithstanding the above, however, we find no harmful error in the admission of testimony that none of the other prisoners saw or heard any disturbance in the drunk tank that night. See Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976); Momon v. State, supra.
The appellant's contention that the detective's testimony about blood on the appellant's clothing was inadmissible opinion evidence is without merit. At trial, counsel for the appellant objected to the testimony not on that basis, but on the ground that the testimony should be excluded because some of the clothing was not produced during the trial. There was no real dispute that blood stains were on the appellant's clothing; the appellant acknowledged such in the taped interview which was played and admitted into evidence, without objection, prior to Barnett's testimony. It is by now axiomatic that admission of evidence over objection, even if error, is harmless when *291 evidence to the same effect has already been admitted without objection. Jones v. Brawner, 160 Ga. App. 314 (287 SE2d 255) (1981); Classic Restorations v. Bean, 155 Ga. App. 694 (272 SE2d 557) (1980).
4. Both Officer Makowski of the Vacaville police force and Officer Kines of the Rome police force were allowed to testify that when they approached the appellant's brother in California to execute the arrest warrant for the appellant, the brother refused to allow them to enter his house. The trial court sustained the objection to any testimony recounting the actual verbal refusal. The appellant contends that even the general explanation of why the two officers did not enter the house of the appellant's brother constituted inadmissible hearsay which was prejudicial in that it implied that the appellant was evading the police.
The state maintains that the evidence was admissible as explanation of the officer's conduct. As discussed above, however, the restrictive application of OCGA § 24-3-2 required by Momon v. State, supra, no longer provides such saving grace of admissibility in this case, because the officer's conduct was not at issue. Nevertheless, it cannot be said that reversible error resulted from the general testimony of Officer Kines that the appellant's brother refused to allow them entrance. Officer Makowski had earlier given identical testimony, without objection, and such rendered harmless the admission of the later testimony. Moreover, the trial court's ruling clearly indicated that the testimony was competent only for the purpose of explaining why the officers did not enter the house to execute the arrest warrant and that it had no bearing on the case against the appellant. Despite our conclusion that the testimony was not competent even for that limited purpose, it is highly improbable that any possible, prejudicial use of the testimony survived the trial court's ruling.
5. Dr. Pittman, who performed neurosurgery on Penney, was shown photographs of the drunk tank and allowed to testify that in his opinion the injuries were probably sustained in a severe beating, as opposed to falling in the cell. The appellant contends that this opinion was mere conjecture and therefore erroneously admitted into evidence.
OCGA § 24-9-67 provides that "[t]he opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses." If an expert witness is asked to draw an inference of fact from data observed by himself or presented by others, such an opinion is one of fact and proper opinion evidence, even though it purports to answer an ultimate question of fact in the case. King v. Browning, 246 Ga. 46 (268 SE2d 653) (1980); Security Life Ins. Co. v. Blitch, 155 Ga. App. 167 (270 SE2d 349) (1980). Accordingly, the trial *292 court properly allowed Dr. Pittman to express his opinion on the cause of the victim's injuries, considering the structural design of the place of injury and the nature of the injuries.
6. Following the appellant's presentation of evidence, including his own testimony, that at the time of the Penney incident in the drunk tank, he had certain physical injuries which limited his physical exertion, the trial court allowed the prosecutor to ask the appellant whether the physical injuries had limited his ability to fight with his brother just before his arrest for being drunk and disorderly; the prosecutor also was allowed to present rebuttal testimony of the arresting officers recounting the appellant's pre-arrest altercation with his brother. The appellant contends that this testimony impermissibly placed his character into evidence.
The appellant placed in issue his particular physical limitations at the time of his arrest on June 27, 1979. The prosecutor's cross-examination of the appellant and the presentation of the rebuttal testimony were proper subjects of inquiry and admissible for the purpose of contradicting the appellant's allegations of physical limitations. The trial court clearly instructed the jury that the testimony was limited to that purpose. Because the evidence may have incidentally placed the appellant's character in issue, it did not become inadmissible. Fryer v. State, 165 Ga. App. 157 (299 SE2d 884) (1983); accord, Smith v. State, 165 Ga. App. 669 (302 SE2d 414) (1983).
7. The appellant contends that the trial court should have declared a mistrial because of the prosecutor's reference, during closing argument, to the appellant as an alcoholic, and because of the prosecutor's comment during closing argument that the appellant had fled the jurisdiction to avoid the trial in the federal civil suit brought by Penney's survivors against the City of Rome (seeking damages for the injuries sustained in the drunk tank). In closing argument, however, the prosecutor may argue all reasonable inferences and deductions which might have been drawn from the evidence, however illogical the inferences or deductions may seem to the defendant. Wisdom v. State, 234 Ga. 650 (217 SE2d 244) (1975); Garrett v. State, 160 Ga. App. 877 (288 SE2d 592) (1982); Sharp v. State, 153 Ga. App. 486 (265 SE2d 837) (1980). In this case, the appellant was drunk when he was arrested in Rome, Georgia, on June 27, 1979, and in Vacaville, California, on August 15, 1981; further, he admitted to having sought treatment for alcohol abuse at detoxification centers and the VA hospital. The evidence authorized the inference or deduction that the appellant was an alcoholic.
For the same reason, we do not find objectionable the prosecutor's suggestion during closing argument that the appellant fled the jurisdiction to California to avoid having to testify in the federal civil suit brought by Penney's survivors against the City of Rome. The appellant *293 was arrested in California, and upon cross-examination of the appellant, he was questioned with regard to his reason for moving to California. He, of course, denied that he fled the state to avoid appearing as a witness in the Penney federal civil suit, but he admitted that he had been aware of that civil action and, in fact, was properly cross-examined about prior inconsistent statements he made about the incident in a deposition given to one of the parties of that litigation. Under these circumstances, we conclude that the prosecutor's comment was a permissible inference drawn from the evidence.
8. The appellant also contends that the trial court erred in instructing the jury on the law of flight. The trial court was careful to instruct the jury that it must determine whether a flight occurred and whether or not the flight was due to a sense of guilt or for other reasons, which was a correct statement of the law of flight. Lewis v. State, 200 Ga. 388 (37 SE2d 405) (1946); Young v. State, 239 Ga. 53 (236 SE2d 1) (1977); see also, Fountain v. State, 149 Ga. 519 (7) (101 S.E. 294) (1919). While an immediate flight is not necessary to authorize a jury charge on the matter, as "there can be no set or specific time necessary to constitute flight. . .," Hamby v. State, 71 Ga. App. 817, 819 (32 SE2d 546) (1944); Johnson v. State, 148 Ga. App. 702 (252 SE2d 205) (1979), the evidence of the appellant's removal to California approximately 20 months after the Penney incident, without more, probably would not have authorized a jury charge on flight because of the remoteness in time; there was, however, other evidence of flight, in that the appellant admitted to having moved to Chattanooga, Tennessee, shortly after the incident. Even though this relocation lasted but one month, after which he returned to the Rome area until he moved to California, it was sufficient evidence to authorize a jury charge on flight.
9. The appellant next contends that he was improperly sentenced as a recidivist. We agree that he could not properly have been sentenced as a recidivist under OCGA § 17-10-7, on the basis of but one prior, out-of-state felony conviction. See Cofer v. State, 166 Ga. App. 436 (304 SE2d 537) (1983). However, it appears from the record that the trial court merely considered the previous out-of-state manslaughter conviction as an aggravating circumstance in determining the appropriate sentence and did not sentence the appellant as a recidivist.
10. Viewing the evidence in the light most favorable to uphold the jury's verdict, there was sufficient competent evidence for a rational trier of fact to find the appellant guilty of aggravated battery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Judgment affirmed. McMurray, C. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333617/ | 170 Ga. App. 212 (1984)
316 S.E.2d 774
LIPSEY
v.
THE STATE.
68072.
Court of Appeals of Georgia.
Decided February 14, 1984.
Rehearing Denied March 12, 1984.
Don C. Keenan, Julie K. Fegley, David S. Bills, for appellant.
Robert E. Wilson, District Attorney, Jonathan C. Peters, Barbara Conroy, Assistant District Attorneys, for appellee.
BANKE, Judge.
Pending appeal of his conviction of child molestation, the appellant seeks the reversal of an order denying his motion for an appeal bond. The appellant was indicted for three counts of child molestation, each involving his 12-year-old stepdaughter. The first count was *213 based on alleged sexual intercourse, the second on alleged sodomy, and the third on alleged fondling. A jury found him not guilty as to the sexual intercourse count and guilty as to the sodomy and fondling counts. The court imposed a 20-year sentence on each of the convictions, to be served consecutively.
At the hearing on the motion for appeal bond, the appellant's wife testified that she and the appellant had lived together in the Atlanta area for nine years and that the appellant's mother, his daughters by a previous marriage, and his grandchildren also resided in the area. A former employer testified that he was willing to offer the appellant his old job back in the event bond were granted. It appears that the appellant has no prior criminal record and that during the year before trial he was free on $500 bond, without incident. After hearing this evidence, the court announced: "I'm not going to grant an appeal bond in this case. The court in its discretion finds there is substantial likelihood that he would flee the jurisdiction since he is now facing a 40-year sentence, has been sentenced to 40 years. The court also finds that he has there is substantial likelihood of interference with witnesses in the case based upon the evidence heard at the trial." A written order to this effect was filed several days later. The appellant was subsequently granted a new trial as to Count 3 of the indictment due to improper venue. Thus, his sentence presently stands at 20 years rather than 40 years. Held:
"The mandate of Birge v. State, [238 Ga. 88, 89 (230 SE2d 895) (1976)], requires the trial court to address four questions when determining whether to allow an appeal bond: (1) Is there a substantial risk the applicant will flee? (2) Is there a substantial risk the applicant will pose a danger to others or to the community? (3) Is there a substantial risk the applicant will intimidate witnesses or otherwise interfere with the administration of justice? (4) Does it appear the appeal was frivolous or was taken only for purposes of delay? An affirmative answer to any of these questions will support denial of an appeal bond." White v. State, 146 Ga. App. 147 (245 SE2d 870) (1978); Moore v. State, 151 Ga. App. 413, 414-415 (260 SE2d 350) (1979).
There is no evidence in either the transcript of the bond hearing or the transcript of the trial to suggest the existence of a substantial risk that the appellant might flee, intimidate witnesses, or otherwise interfere with the administration of justice if released on bond pending appeal. Compare Morton v. State, 166 Ga. App. 170 (303 SE2d 509) (1983). All the evidence is in fact to the contrary. In support of its conclusion that the appellant might flee, the court evidently relied solely on the length of the sentence originally imposed. This sentence was subsequently reduced from 40 years to 20 years by virtue of the granting of the appellant's motion for new trial as to Count 3 of the *214 indictment, and we do not in any event believe that in a non-capital case the length of the sentence alone can serve as a sufficient basis for the denial of an appeal bond. Rather, this is merely one factor to be taken into consideration along with others. Accord Birge v. State, supra, 238 Ga. at 90, citing ABA Standards, Criminal Appeals, § 2.5 (a) and (b) (1974). As for the court's finding that there was a substantial risk that the appellant might intimidate witnesses or otherwise interfere with the administration of justice, this was evidently based on evidence that the appellant's wife had sought prior to trial to influence the victim to change her testimony. We reject the state's apparent contention that the actions of the appellant's wife may be attributed to the appellant based merely on the fact of their relationship.
The court's order denying the motion for appeal bond is reversed, with direction that a reasonable appeal bond be set instanter. Shulman, P. J., Birdsong, Carley, and Sognier, JJ., concur. McMurray, C. J., Deen, P. J., Quillian, P. J., and Pope, J., dissent.
POPE, Judge, dissenting.
"The granting or refusing of bail in felony cases after indictment and conviction is a matter within the sound discretion of the trial court, and this court will not control that discretion unless it has been flagrantly abused." Watts v. Grimes, 224 Ga. 227 (161 SE2d 286) (1968). Based upon the record in this case, I do not believe the trial court has flagrantly abused its discretion in denying appellant's motion for bond pending appeal. Therefore, I respectfully dissent.
The record evidence shows that the crimes with which appellant was charged took place during early 1982. Shortly thereafter, the twelve-year-old victim (appellant's stepdaughter) was placed in a home for children. At some point prior to trial, the victim's mother (appellant's wife) took her from the home to a small office in the courthouse. As the result of her mother's statements to her, the victim recanted her allegations of misconduct on the part of appellant. Present in the courthouse office were the victim, her mother, appellant's trial counsel and a court reporter; no one else was present. The victim testified at trial that her mother had told her if she said her allegations against appellant were false, then the family could get back together again. The victim was afraid that if she did not change her story, she would have to spend the rest of her life at the children's home. This courthouse meeting took place at a time when appellant *215 was free on bond pending trial and was living with his wife, the victim's mother. Additionally, at the hearing on appellant's motion for bond pending appeal, the evidence showed that appellant, if he were released, would likely again be living with his wife. He thus would have access to the victim, who made occasional visits from the children's home.
As noted by the majority, appellant was granted a new trial on one of his convictions (Count III) subsequent to the trial court's denial of his motion for bond. Although there is no evidence of appellant's direct involvement in attempting to intimidate or to influence the testimony of the victim, the trial court was authorized to infer from the circumstances that appellant was aware of and concurred in the actions of his wife in trying to influence the victim's testimony at trial. Also, the trial court was authorized to consider, and apparently did consider, that appellant had received a maximum sentence for each of his crimes. See Birge v. State, 238 Ga. 88, 90 (230 SE2d 895) (1976). Under these circumstances, and although there was some evidence to the contrary, I believe the trial court did not abuse its discretion in concluding that there was a substantial risk that appellant would attempt to intimidate the twelve-year-old victim or otherwise interfere with the administration of justice, particularly now as to any retrial of Count III. See, e.g., Royals v. State, 155 Ga. App. 389 (270 SE2d 908) (1980). I would affirm the trial court's denial of bond pending appeal.
I am authorized to state that Presiding Judge Deen joins in this dissent.
ON MOTION FOR REHEARING.
The state urges for the first time on motion for rehearing that certain evidence presented during the trial showing prior mistreatment of the victim by the appellant should be construed as evidence of witness intimidation. However, the conduct in question occurred before the appellant was charged with child molestation and was so integrally connected to the commission of the offense as to be a part of it. As previously stated, the appellant was free on bond for a year between the time of his arrest and the time of his trial, and there is absolutely no indication that during that period he, as opposed to his wife, engaged in any attempt to intimidate the victim or any other witness. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333650/ | 170 Ga. App. 9 (1984)
316 S.E.2d 21
DUFF'S ENTERPRISES, INC.
v.
B. F. SAUL REAL ESTATE INVESTMENT TRUST.
67433.
Court of Appeals of Georgia.
Decided February 27, 1984.
David R. Lavance, Jr., for appellant.
James G. Edwards II, W. Fred Orr II, for appellee.
SOGNIER, Judge.
B. F. Saul Real Estate Investment Trust sued its tenant, Duff's Enterprises, Inc., to recover rent and other sums allegedly due under *10 a shopping center lease. The Investment Trust moved for and was granted summary judgment in an amount which included past-due rent, interest, and attorney fees. Duff's appeals.
1. Appellant contends that the trial court erred by granting summary judgment in favor of appellee in an amount totalling $34,500 when appellee offered evidence supporting a claim of only $28,448.63. This contention is without merit. The lease document, admitted by appellant, provided for interest at a rate not to exceed 18% per annum on sums not paid when due, and it is undisputed that this rate was used to compute the amount of interest awarded on judgment. Recordex Corp. v. Southeastern Metal Prods., 147 Ga. App. 79, 80 (1C) (248 SE2d 159) (1978). The lease also provided for payment of attorney fees in collection of overdue amounts, and attorney fees were awarded at the rate of 10% pursuant to OCGA § 13-1-11. Roddy Sturdivant Enterprises v. Nat. Advertising Co., 145 Ga. App. 706, 707 (244 SE2d 648) (1978). Appellee carried its burden of showing when each rental payment was due and payable and the amount owing. There was no error.
2. Appellant contends that an issue of fact remains as to whether appellee breached the lease by unreasonably refusing to consent to a subletting of the premises by appellant. The lease prohibits the assigning or subletting of the premises by the tenant without the prior written consent of the landlord. A separate provision of the lease states that "The Demised Premises shall be used and occupied by Tenant solely for the purpose of a smorgasbord and for no other purpose whatsoever." Appellant sought to sublet the premises after closing its business there, but while still paying rent. The only prospective sub-tenant submitted by appellant for appellee's approval planned to operate a nightclub/lounge on the premises.
The proposed use of the premises as a lounge for the purpose of serving alcoholic beverages is not the same, or reasonably similar, to the use prescribed in the lease a smorgasbord, or arguably, a restaurant or other food service operation. Thus, the issue of the reasonableness of appellee's refusal to consent to subletting the premises is not before us as it might have been, had the appellee unreasonably withheld its consent to a sub-tenant intending a like use. Compare in this regard Homa-Goff Interiors v. Cowden, 350 S2d 1035 (Ala. 1977); Fernandez v. Vazquez, 397 S2d 1171 (Fla. App. 1981); Funk v. Funk, 633 P2d 586 (Idaho 1981); Scheinfeld v. Muntz TV, 214 NE2d 506 (Ill. 1966); Shaker Bldg. Co. v. Federal Lime & Stone Co., 277 NE2d 584 (Ohio 1971).[1] The lease provision requiring the landlord's consent *11 to subletting the premises must be construed together with the provision restricting use, Rosen v. Wolff, 152 Ga. 578, 588 (110 S.E. 877) (1921), and where the use of the premises is expressly limited as it is here, the tenant may not assign or sublet for a contrary use. Commercial Auto Loan Corp. v. Keith, 79 Ga. App. 268, 269 (53 SE2d 381) (1949). Cf. Arrington v. Walter E. Heller Intl. Corp., 333 NE2d 50, 58 (Ill. 1975); Shaker Bldg. Co., supra at 587. Contra, Ringwood Assoc. v. Jack's of Route 23, 379 A2d 508, 511 (N.J. 1977).
The trial court did not err by granting summary judgment in favor of appellee.
Judgment affirmed. Quillian, P. J., and Pope, J., concur.
NOTES
[1] Unlike some of the jurisdictions represented by the citations above, Georgia does not require mitigation of damages in lease contracts. Peterson v. Midas Realty Corp., 160 Ga. App. 333, 334 (287 SE2d 61) (1981), and cases cited therein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333717/ | 316 S.E.2d 622 (1984)
Thomas E. MILLER
v.
RUTH'S OF NORTH CAROLINA, INC., B & H Foods, Inc., Frances June Griffin, Robert Griffin, Ruth's of South Carolina, Inc., and B & H, Inc. of Chester.
No. 8326SC847.
Court of Appeals of North Carolina.
June 19, 1984.
*623 Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston by Gaston H. Gage and Debra L. Foster, Charlotte, for plaintiff appellant-appellee.
Fairley, Hamrick, Monteith & Cobb by S. Dean Hamrick and F. Lane Williamson, Charlotte, for defendants appellants-appellees.
BRASWELL, Judge.
This appeal is the third arising out of litigation between these parties. Ruth's I [now concluded and reported in 68 N.C.App. 40, 313 S.E.2d 849 (1984)] concerned the denial of the plaintiff's request for attorneys' fees after maintaining a successful action in which the defendant-corporations were required to redeem the plaintiff's shares of stock. Ruth's II, currently before this Court, stemmed from the entry of summary judgment in favor of the defendants, dismissing an action filed on 15 January 1982 which included shareholders' derivative claims as well as plaintiff's individual claims. Ruth's III is the subject of this opinion. The plaintiff in this case has appealed the denial of his motion for leave of court to file a supplemental complaint and the granting of the defendants' motion to strike a supplemental claim in his "reply." The defendant-corporations have appealed the entry of summary judgment in favor of the plaintiff, dismissing their counterclaim.
*624 The plaintiff sued as a minority shareholder in two food distribution corporations, Ruth's of North Carolina, Inc., and Ruth's of South Carolina, Inc. The defendant Frances June Griffin is the majority shareholder in these corporations as well as in the two other defendant corporations. The plaintiff, past president and director of the Ruth's corporations, brought this action on 6 December 1976 alleging various acts of mismanagement and breaches of fiduciary duty by the defendants.
The complaint sought relief by asking for the appointment of a receiver for the liquidation and involuntary dissolution of the two Ruth's companies, or in the alternative, by requiring the Ruth's companies to repurchase the plaintiff's shares at their fair market value. The defendants' answer contained a counterclaim seeking damages for various breaches of the plaintiff's fiduciary duties while an officer and a director of the Ruth's corporations prior to 6 December 1976 and as a shareholder since 6 December 1976. The plaintiff, on 22 March 1977 in response to the counterclaim, filed a document entitled "Answer to Counterclaim, Offset and Supplement to Complaint," seeking damages in the amount of one million dollars against the defendants Robert Griffin and Frances June Griffin for their efforts to squeeze the plaintiff out of the Ruth's corporations. The defendants, on 29 March 1977, moved to have the counterclaim asserted within the plaintiff's "reply" stricken. The motion was not ruled on at that time. The record further shows that on 5 May 1981, the plaintiff made a motion for leave of court to file a supplemental complaint pursuant to G.S. 1A-1, Rule 15(d). This motion was denied.
This case went to trial on 11 January 1982. The plaintiff and the defendants differed on what issues were before the court. The plaintiff contended that he had alleged in his pleadings a derivative suit as well as an action for his individual claims against the defendants. The defendants, on the other hand, asserted that the only issue before the trial court was whether the court should appoint a receiver to effect dissolution and liquidation of the Ruth's corporations or whether the Court should enter redemption of the plaintiff's shares of stock. Based on these contentions, the trial court ordered "that only the issues involving the appointment of a receiver or alternative equitable relief should be tried in this action at this time, and that all other issues and claims, if any there be, should be, and hereby are, severed and to be tried separately." Thus, only the individual claims against these parties and not the derivative claims on behalf of the corporation were to be litigated at this time.
On 3 March 1982, the trial court, supported by findings of fact and conclusions of law, ordered in lieu of liquidation under its authority pursuant to G.S. 55-125.1 that "the respective Ruth's corporations shall purchase at their fair value the respective shares of the plaintiff in such respective corporations." Since no finding or conclusion of law in this judgment was excepted or objected to, the defendants' liability was not contested. A reference was then ordered and a referee was appointed to determine the shares' fair market value.
Based on the referee's report, the trial court ordered the plaintiff to deliver his shares in Ruth's of North Carolina and that the defendants pay $165,615, plus interest, to the Clerk of Court. The plaintiff was also ordered to deliver his shares in the Ruth's of South Carolina to the Clerk and the defendant was required to purchase these shares for $132,400, plus interest. Neither the plaintiff nor the defendants excepted to any of the trial court's findings of fact or conclusions of law in this judgment. Thus, the amount of the defendants' liability was not disputed.
Thereafter, the plaintiff moved on 21 April 1983 for summary judgment. On 9 June 1983 "upon defendants' motion (filed March 29, 1977) to strike the counterclaim alleged in the reply of plaintiff, and upon the motion (filed April 21, 1983) of plaintiff for summary judgment dismissing the counterclaim," the trial court granted the defendants' motion to strike, dismissing the claim within the plaintiff's reply and granted *625 the plaintiff's motion for summary judgment, dismissing the defendants' counterclaim. From this order, the plaintiff and the defendant Ruth's corporations appeal.
The plaintiff assigns as error the denial of his motion for leave of court to file a supplemental complaint and the granting of the defendants' motion to strike the supplemental claim in his pleading entitled "Answer to Counterclaim, Offset and Supplement to Complaint." These supplemental claims, denominated as such by motion or in the pleading itself, are governed by G.S. 1A-1, Rule 15(d). Generally, motions to allow supplemental pleadings should be freely granted unless their allowance would impose a substantial injustice upon the opposing party. Foy v. Foy, 57 N.C.App. 128, 290 S.E.2d 748 (1982). However, by the very way in which this case has progressed, we find it unnecessary to reach a determination of whether these newly asserted claims within these supplemental pleadings would impose a substantial injustice against the defendants.
By severing all other issues for trial, the trial court only dealt with those issues involving the individual claims brought by the plaintiff against the defendants and those brought by the defendants against the plaintiff. The first judgment entered in this case established the defendant's liability. Through the second judgment entered against the defendants, the amount of their liability was determined. Within the last judgment, the following conclusion of law appears, to which no exception was taken:
6. Upon payment by the corporate defendants of the amounts specified herein, the corporate defendants and the individual defendants shall be relieved and forever discharged for any obligation any of them may have by reason of any acts of mismanagement or otherwise arising out of the operation of the corporate defendants. (Emphasis added.)
The trial court further provided that "[t]here is no just cause for delay and this is a final Judgment from which any party hereto may appeal." No appeal has been taken from this judgment. We hold that the plaintiff by failing to except to this conclusion of law has in effect relinquished his right to pursue any other claims he might have against the defendants which arise out of the management and operation of the defendant-corporations. The trial court, using its discretionary powers under G.S. 55-125.1(a)(4) for the protection of a minority shareholder, ordered relief which would best compensate the plaintiff once and for all. The trial court viewed the relief given as settling all the plaintiff's claims against the defendants. By not objecting, the plaintiff is bound by that "settlement." This reasoning is reinforced by the fact that within the "Supplemental Complaint" the plaintiff prayed for the exact reliefthe redemption of his sharesas awarded in the final judgment. The plaintiff cannot now complain that his motion to file a supplemental pleading was denied when the relief sought in that pleading has been awarded.
We similarly feel that the million dollar claim against the individual defendants asserted in the "Answer to Counterclaim" cannot now be pursued because the allegations of this claim also stem from alleged wrongdoing by the individual defendants in their management and operation of the Ruth's corporations. Also, G.S. 1A-1, Rule 7(a), provides in part that "[t]here shall be a complaint and an answer; a reply to a counterclaim denominated as such .... No other pleading shall be allowed." Plaintiff's response to the counterclaim is limited to a reply by this rule. There is no such pleading as an "Answer to Counterclaim, Offset and Supplement to Complaint." In any event, the function of a reply is to deny the new matter alleged in the answer or affirmative defenses which the plaintiff does not admit. A reply may not state a cause of action. Phillips v. Mining Co., 244 N.C. 17, 92 S.E.2d 429 (1956). Other matters within a reply outside of this scope may properly be stricken on motion. Davis v. Highway Commission, 271 N.C. 405, 156 S.E.2d 685 (1967). *626 Realizing that additional claims are not properly pled in a reply, the plaintiff in the "Answer to Counterclaim" asks that "this pleading be allowed by the Court as a supplement to plaintiff's Complaint pursuant to G.S. 1A-1, Rule 15(d). According to Rule 15(d), however, supplemental pleadings may be allowed upon a party's motion in the trial court's discretion, not as a matter of right, upon terms as are just. See Deutsch v. Fisher, 32 N.C.App. 688, 233 S.E.2d 646 (1977), affirmed, 39 N.C.App. 304, 250 S.E.2d 304, disc. rev. denied, 296 N.C. 736, 254 S.E.2d 177 (1979). No abuse of discretion having been shown, we hold that the trial court properly denied the plaintiff's motion under Rule 15(d) and properly granted the defendants' motion to strike the supplemental claim in the document labeled "Answer to Counterclaim."
The defendants, Ruth's of North Carolina and Ruth's of South Carolina, have also appealed in this case and have assigned as error the granting of summary judgment in favor of the plaintiff, dismissing their counterclaim. When the trial began and the parties differed as to what issues had been raised by the pleadings, the trial court ordered that only the issues involving the appointment of a receiver or the granting of any alternative equitable relief should be tried immediately. The issue of whether the plaintiff had properly pled a shareholders' derivative action was to be decided at a later date. With only the individual claims between the parties remaining, the trial judge made a final disposition of this part of the case when pursuant to his equitable powers under G.S. 55-125.1(a)(4) he ordered the corporate-defendants to redeem the plaintiff's shares. Because the trial court was in the process of resolving all of the individual claims asserted, any wrongful conduct by the plaintiff affecting the corporations would have been necessarily reflected in the amount that the corporate-defendants were ordered to pay as the fair market value of his shares. Thus, since the counterclaim was disposed of through the final judgment filed 19 October 1982, we hold that no genuine issue of any material fact existed for trial and that the trial court properly granted the plaintiff's motion for summary judgment.
With regard to both parties' appeal, the judgment of the trial court is
Affirmed.
VAUGHN, C.J., and EAGLES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333725/ | 316 S.E.2d 148 (1984)
Rudolph V. REASE
v.
COMMONWEALTH of Virginia.
Record No. 830182.
Supreme Court of Virginia.
April 27, 1984.
*149 David J. Fudala, Alexandria (Hirschkop & Grad, P.C., Alexandria, on brief), for appellant.
Linwood T. Wells, Jr., Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on brief), for appellee.
Present: COCHRAN, POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ., and GORDON, Retired Justice.
COMPTON, Justice.
In this criminal appeal, the question is whether the state court lost jurisdiction to revoke a suspended sentence because of a lapse of time caused by defendant's federal imprisonment for a crime committed while on state probation.
As pertinent here, Code § 19.2-306 provides:
"The court may, for any cause deemed by it sufficient which occurred at any time within the probation period, or if none, within the period of suspension fixed by the court ... revoke the suspension of sentence and any probation, if the defendant be on probation, and cause the defendant to be arrested and brought before the court at any time within one year after the probation period .... In the event that any person placed on probation shall leave the jurisdiction of the court without the consent of the judge, or having obtained leave to remove to another locality violates any of the terms of his probation, he may be apprehended and returned to the court and dealt with as provided above."
Appellant Rudolph V. Rease pleaded guilty to a charge of robbery and was sentenced by the trial court in November of 1972 to:
"[S]erve ten (10) years in the Penitentiary House of this Commonwealth, at hard labor, but in mitigation of punishment, it appearing compatible with the public interest so to do, the Court does now suspend seven (7) years of the said sentence, conditioned upon the defendant's good behavior and that he shall be on active probation ... for a period of five years upon his release from confinement."
Defendant was released from confinement on July 22, 1974.
During the term of probation, defendant was arrested by federal authorities on October 20, 1976, and charged with a bank robbery that occurred on that date. He was detained in federal custody in the Arlington County jail pending trial and sentencing. Upon being notified of defendant's federal arraignment, the court below issued a warrant in November requiring defendant to show cause why his suspended sentence and probation should not be revoked. This bench warrant was not served on defendant at that time.
In December, defendant was found guilty of the federal charge and sentenced *150 in January of 1977 to serve 18 years in a federal penitentiary. On January 13, defendant's Virginia probation officer advised the state trial judge of the sentencing and that defendant was still incarcerated in the nearby Arlington jail. The Commonwealth at that time did not attempt to arrange a hearing on the probation violation.
On January 17, defendant was moved to a federal penitentiary. In March, a Virginia detainer based on the bench warrant was filed against defendant with the Federal Bureau of Prisons. The defendant remained in federal penal institutions in Pennsylvania, Georgia, Illinois, and Indiana until released on parole on October 19, 1982. During this period of incarceration, defendant made requests that the detainer be released or that Virginia afford him a hearing on the revocation of his probation. The trial court denied the release request and Virginia authorities notified him that he would not be returned to the Commonwealth for a revocation hearing until released from federal custody.
On the day of defendant's federal discharge, the bench warrant was served and defendant was brought to Virginia. A revocation hearing was held on November 5, 1982. Defendant asserted that the trial court lacked jurisdiction to revoke the probation because the time fixed by Code § 19.2-306 within which the court could act had expired. The trial court ruled that when defendant came under federal control there was a "tolling effect" on the time constraint of the Virginia statute. Thus, the court exercised jurisdiction, found that defendant had violated probation, and ordered execution of the suspended seven-year penitentiary sentence. Defendant appeals from that order.
On appeal, defendant focuses on the statute in question. He concedes that a crime was committed during the probation period. He agrees that during the probation period of July 22, 1974 to July 22, 1979, and within one year thereafter, the trial court had absolute discretion to revoke the probation and suspended sentence. He contends, however, that the court's power to revoke could not extend beyond July 22, 1980 and that when defendant was brought before the court on November 5, 1982, the court acted without jurisdiction in ordering execution of the suspended sentence.
Defendant further argues that because federal law expressly provides for delivery of a federal prisoner to state custody by use of a writ of habeas corpus ad prosequendum, see 28 U.S.C. § 2241(c)(5) (1982); 28 C.F.R. §§ 527.30-.31 (1983), the State of Virginia readily could have brought him back to Fairfax for a probation revocation hearing during his period of federal incarceration. He says he "did not abscond or try in any way to avoid the charge which had been placed against him; indeed, he wrote numerous letters requesting a disposition of the charge." Defendant also argues that the Commonwealth's "conduct in this case ignores the serious harm to [him]... brought about by such a lengthy delay in conducting the revocation proceedings." He says the fact that a detainer is outstanding for an inmate "directly affects the conditions of his confinement, including security classification, parole release date, and eligibility to participate in work release programs and other programs." More importantly, he urges that delaying revocation proceedings until the term of federal incarceration expires deprives defendant of any opportunity for concurrent sentencing under the Virginia statute which authorizes such procedure when a defendant is in a federal prison at the time of state sentencing. See Code § 19.2-308.1. He contends that such a delay thus can lengthen unjustly the term of incarceration.
Conceding the time constraints of § 19.2-306 are jurisdictional, the Attorney General contends the defendant's probation was revoked within the time prescribed by law. He argues that the statute, while limiting the time within which revocation of a suspended sentence or probation may take place, provides two "exceptions" to such limit. The Attorney General urges that these "exceptions" consist of cases in which a person, who has been placed on probation, leaves "the jurisdiction of the *151 court without the consent of the judge," or obtains "leave to remove to another locality" and then "violates any of the terms of his probation." In those cases, the argument continues, the statute provides merely that such persons "may be apprehended and returned to the court and dealt with as provided above." The Attorney General says that the "clear intent" of the General Assembly, in referring specifically to those situations, was to take them outside the time limits otherwise prescribed for revocation hearings. He says, citing foreign authority, that it is not unusual for the legislature to place an exception into a statute of limitations for persons who become residents of another state or otherwise remain outside the state. Here, the Attorney General argues, "it is clear" the defendant left the jurisdiction without obtaining the consent of the judge.
We do not agree with this interpretation, given the facts of this case. We are of opinion that the language "shall leave the jurisdiction of the court without the consent of the judge" manifestly applies primarily to a fugitive or to one who absconds. It does not apply to a person who, as here, departs the Commonwealth because he is in the custody of federal authorities.
Alternatively, the Attorney General argues that if we do not find the so-called statutory "exception" applies to the defendant, we should nevertheless determine that the trial court had jurisdiction to revoke the probation. He contends that a proper construction of the statute excludes from its provisions cases where a probationer commits a crime leading to his incarceration outside the Commonwealth and the state court promptly has issued a bench warrant followed by a detainer.[*]
We agree with the alternative position of the Attorney General. The probation statutes are highly remedial and should be construed liberally. Richardson v. Commonwealth, 131 Va. 802, 811, 109 S.E. 460, 462 (1921). The power of the court to revoke for breach of the terms and conditions of probation should not be restricted beyond the limitations fixed by the statutes. Dyke v. Commonwealth, 193 Va. 478, 484, 69 S.E.2d 483, 486-87 (1952); accord Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982).
Moreover, the probation statutes "afford to trial courts a valuable means of bringing about the rehabilitation of offenders against the criminal laws." Dyke v. Commonwealth, 193 Va. at 484, 69 S.E.2d at 486. Rehabilitation is more readily accomplished when the probationer is under the broad control of the court and the direct supervision of the court's probation officer. And when defendant, due to his own conduct, is no longer under such control and supervision, the act of grace in granting probation in the first place is rendered a nullity.
Consequently, we hold that the legislature did not intend the statutory one-year limitation to restrict the power of the court to revoke probation under these circumstances. When, as here, the probationer commits another crime within the probation period and is arrested by another jurisdiction, thereby placing himself beyond the jurisdiction and control of the sentencing court, the one-year time constraint of § 19.2-306 is suspended. The time limit *152 remains suspended, when the probation period expires during incarceration in the other jurisdiction, until the probationer is released by such other jurisdiction, provided the original court as soon as practicable has issued a warrant charging violation of probation and a detainer. Therefore, in this case the one-year statutory period was suspended because of defendant's federal arrest and commenced to run on October 19, 1982, the day defendant was released from federal custody. Thus, the trial court had jurisdiction, and the November 1982 revocation hearing was held in a timely manner.
Finally, we address defendant's policy argument. He claims that no tolling period should be allowed because delay in disposing of the probation violation causes denial of certain penal benefits and privileges. These contentions are answered fully by reference to Moody v. Daggett, 429 U.S. 78, 97 S. Ct. 274, 50 L. Ed. 2d 236 (1976).
In Moody, the Supreme Court decided that a federal parolee imprisoned for a crime committed while on parole was not entitled constitutionally to a prompt revocation hearing when a parole violator warrant was issued and lodged with the institution of his confinement but not served on him. In that case, the defendant asserted protected liberty interests in both the length and conditions of his confinement. He contended those interests were disregarded in several particulars by issuance against him of an unexecuted parole violator warrant. He claimed such procedure barred him from serving his prior sentence concurrently with his present sentences, retarded his parole eligibility on the later convictions, and adversely affected his prison classification status. Id. at 85, 97 S.Ct. at 277.
The Supreme Court held there was no requirement for an immediate revocation hearing, before the parolee had been taken into custody as a parole violator. Id. at 86, 97 S.Ct. at 278. The Court said that the defendant's present confinement and consequent liberty loss did not derive from the outstanding detainer, but from his recent convictions. "Issuance of the warrant and notice of that fact to the institution of confinement did no more than express the... intent to defer consideration of parole revocation to a later time." Id.
The Court decided that the "other injuries" the defendant claimed to suffer either did not involve a loss of protected liberty or had not occurred by reason of the warrant and detainer. Id. at 87, 97 S.Ct. at 278. Noting that the defendant's "real complaint" was that he desired to serve his revoked sentence concurrently with the sentences for the present crimes, the Court said that the federal authorities retained full discretion to dismiss the warrant or to decide, after hearing, that the parole need not be revoked. Id. The Court said that nothing in the applicable federal statute or regulations gave the defendant the "right" to force the decision on revocation. Id. at 88, 97 S.Ct. at 279.
In conclusion, the Court observed that a decision, immediately upon incarceration for a subsequent offense, would deprive the correctional authorities of valuable information about the defendant's entitlement to continued release notwithstanding the parole violation. The Court noted that a decision to revoke often would be "foreordained" upon conviction of subsequent crimes. Id. at 89, 97 S.Ct. at 279-80. The Court said that it is appropriate to hold a revocation hearing at a time when an accurate prediction on defendant's future conduct can be made, based on his record of behavior in prison. The most relevant time for such a hearing, therefore, would be at the expiration of the parolee's intervening sentence.
The applicability, by analogy, of the statements in Moody to defendant's contentions in the present case is obvious and need not be set out seriatim. When a state probation violation warrant merely has been issued but not served and a detainer has been lodged, a defendant has no *153 constitutional or statutory right to force the trial court to decide the revocation issue. This is true even though, as here, the defendant was, for a brief time, held in federal custody in jail in an adjoining county. Accordingly, it was entirely proper for the trial court to follow the procedure employed in this case and to defer decision on the probation violation until completion of defendant's federal incarceration.
Because we find no error in the judgment of the trial court, the order appealed from will be
Affirmed.
NOTES
[*] A detainer in this context is an administrative device to assure that a prisoner "subject to an unexpired term of confinement will not be released from custody until the jurisdiction asserting a parole violation has had an opportunity to actin this case by taking the inmate into custody or by making a parole revocation determination." Moody v. Daggett, 429 U.S. 78, 80, n. 2, 97 S. Ct. 274, 275, n. 2, 50 L. Ed. 2d 236 (1976). "When two autonomous jurisdictions are involved," as when a state detainer is placed against an inmate of a federal penitentiary, "a detainer is a matter of comity." Id.; cf. The Agreement on Detainers, Code §§ 53.1-210 to -215 (applicable when a person is serving a term of imprisonment and there is pending in any other party jurisdiction "any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner ...." § 53.1-210, art. III). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263400/ | 142 F.Supp. 215 (1956)
Hollice HOLMAN, Marshall G. Meek, Albert E. Cavanaugh, Michael A. McCann, Ross J. Pandolfino, Glenn A. Gulick, Joseph F. Mehal, Jr., John L. Hill, George D. Harkins, Vernon Shores and Eugene Pugh, for and on behalf of themselves and others similarly situated as a class, Plaintiffs,
v.
INDUSTRIAL STAMPING AND MANUFACTURING COMPANY, Division of Vinco Corporation, a corporation, Mechanics Educational Society of America, Local No. 6 of Detroit, Michigan, an unincorporated association or labor union, George White, President, and Matt E. Smith, Secretary, thereof, Defendants.
No. 15068.
United States District Court E. D. Michigan, S. D.
June 29, 1956.
*216 Edward N. Barnard, Detroit, Mich., for plaintiffs.
James E. Tobin and Miller, Canfield, Paddock & Stone, Detroit, Mich., Jack G. Day, Cleveland, Ohio, James P. Hannan, Detroit, Mich., for defendants.
LEVIN, District Judge.
This action arises out of a labor-management dispute. Plaintiffs allege that defendants are depriving them of vested seniority rights and are discriminating against them as to these rights and other conditions of employment. The employer defendant filed a motion for summary judgment. The other defendants, hereinafter described, filed a motion to dismiss. Both motions are grounded upon the assertion that this Court is without jurisdiction.
The allegations in this proceeding are practically the same as those in Holman v. Industrial Stamping & Mfg. Co., 1955, 344 Mich. 235, 74 N.W.2d 322, a suit dismissed by the Supreme Court of Michigan on jurisdictional grounds. Plaintiffs now assert that their grievances may be adjudicated in the United States District Court.
A summary of the facts alleged in the plaintiffs' amended complaint and in the *217 defendants' accompanying affidavits and other supporting papers follows:
Defendant, Industrial Stamping and Manufacturing Company, is a division of the Vinco Corporation and in the business of stamping and plating automobile parts. From May 1952 to September 1954 Industrial operated two plants in Detroit, Michigan a stamping plant on Epworth Boulevard and a plating plant on Beaufait Street. The employees at the Epworth plant were members of Local 174, UAW-CIO and those at the Beaufait plant were members of Local 1, Metal Polishers, AFL. Both unions had collective bargaining agreements with Industrial which, in the absence of objections thereto, were automatically renewed from year to year.
On September 24, 1954 Industrial purchased from the Parker-Wolverine Division of the Udylite Corporation, one of its competitors, a plant on East Grand Boulevard, Detroit. This purchase included the land, buildings, machinery and inventory of the Boulevard plant, but Industrial did not assume any obligation with respect to the employment of the employees of the Boulevard plant. The Boulevard stamping employees were members of The Educational Society of America, (MESA). The Boulevard polishing and plating employees were members of Local 189, UAW-CIO. Local 6, MESA, its president, George White, and its secretary, Matt E. Smith, are the other defendants in this action.
When this sale was consummated, Parker-Wolverine discharged all its Boulevard plant employees, but advised them that Industrial would rehire most of them. On or about September 27, 1954 Industrial did hire, upon individual application, all of Parker-Wolverine's Boulevard employees who were employed on September 24, 1954. Industrial intended to merge all its manufacturing operations into the Boulevard plant by transferring employees and equipment from the Epworth and Beaufait plants.
On September 27, 1954 Industrial filed a petition with the National Labor Relations Board asking that its employees be considered as one unit for collective bargaining purposes and that an election be held to determine the collective bargaining representative of this unit. Locals 174 and 189, UAW-CIO filed similar petitions. The MESA and Local 1, Metal Polishers, AFL intervened in the Labor Board's proceedings and objected to these petitions on the ground that their existing contracts with Parker-Wolverine were a bar to a new election. On March 21, 1955 the Labor Board issued a "Decision and Direction of Election" overruling this objection because the merged plants represented a new operation and ordered an immediate election. The MESA won the subsequent representation election and was duly certified by the Labor Board as the sole collective bargaining representative of Industrial's employees.
Thereafter, Local 6, MESA, began negotiating a collective bargaining agreement covering the terms of the employment of all the employees in the three plant unit with particular emphasis on the adjustment of the seniority rights between Industrial's original Epworth and Beaufait plant employees and the former Parker-Wolverine employees. During the course of these negotiations, Industrial laid off some of its employees because of production cutbacks. In doing so, Industrial followed a system of seniority apparently approved by the MESA which resulted in laying off both original Epworth-Beaufait employees and former Parker-Wolverine employees.
The original Epworth-Beaufait employees objected to this system claiming that their seniority with Industrial predated that of the former Parker-Wolverine employees; that the former Parker-Wolverine employees were "new employees" who did not become employees of Industrial until September 27, 1954. There were also other job classification adjustments which the Epworth-Beaufait employees claimed were to their detriment.
Subsequently, a group of the Epworth-Beaufait employees, who are the plaintiffs in this suit and who purport to represent *218 two hundred and twenty-three of the original Epworth-Beaufait employees and "any other employees of the said company similarly situated," filed unfair labor charges with the Detroit Regional Office of the National Labor Relations Board, alleging facts similar to those alleged in this action. Before the Regional Office took action on these charges, plaintiffs filed the complaint in the Circuit Court for the County of Wayne, Michigan, which on appeal was dismissed by the Supreme Court of Michigan. Holman v. Industrial Stamping & Mfg. Co., 1955, 344 Mich. 235, 74 N.W.2d 322.
During the pendency of the appeal in the Supreme Court of Michigan, the acting regional director of the Detroit Office of the National Labor Relations Board decided to refuse to issue a complaint against defendants on the ground that their acts did not constitute unfair labor practices within the meaning of the National Labor Relations Act of 1935, 49 Stat. 449, 29 U.S.C.A. §§ 151-166, as amended by the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U.S. C.A. §§ 141-197. The acting regional director advised plaintiffs that they had the right to appeal, within ten days of receipt of his letter of refusal, to the Labor Board's General Counsel in Washington, D. C. Plaintiffs did not appeal and are now seeking relief in this Court.
Plaintiffs' allegation as to discrimination is based on their claim to certain seniority rights by virtue of collective bargaining agreements which were negotiated by Local 174, UAW-CIO and Local 1, Metal Polishers, Buffers, Platers and Helpers, AFL, prior to the designation of the MESA as plaintiffs' collective bargaining representative, and which plaintiffs claim were automatically renewed and are still in effect.
Congress has vested jurisdiction to determine which activities are unfair labor practices within the meaning of the National Labor Relations Act, as amended, in the National Labor Relations Board and not in the United States District Courts. Amazon Cotton Mill Co. v. Textile Workers Union of America, 4 Cir., 1948, 167 F.2d 183.
Thus, the adjudication of a complaint of discrimination involving seniority rights brought about by a company's consolidation of plants, as are complaints of other types of discrimination by either a union or an employer, is within the exclusive jurisdiction of the National Labor Relations Board. Anson v. Hiram Walker & Sons, 7 Cir., 1955, 222 F.2d 100, certiorari denied 1955, 350 U.S. 840, 76 S.Ct. 79, 100 L.Ed. ___. See, Radio Officers' Union of Commercial Telegraphers Union v. National Labor Relations Board, 1953, 347 U.S. 17, 74 S.Ct. 323, 98 L.Ed. 455, (Discrimination as to seniority rights); Wallace Corp. v. N.L.R.B., 1944, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216, (Company assisting union, victorious in a representation election, in discriminating against members of the losing union); N.L.R.B. v. International Union of Operating Engineers, etc., 8 Cir., 1954, 216 F.2d 161, N.L.R.B. v. Philadelphia Iron Works, 3 Cir., 1954, 211 F.2d 937, (Discrimination by a union or an employer between the union's members as to conditions of employment or the rights guaranteed by Section 7 of the National Labor Relations Act, as amended, 61 Stat. 140 (1947), 29 U.S.C.A. § 157; Born v. Laube, 9 Cir., 1954, 213 F.2d 407, certiorari denied 1954, 348 U.S. 855, 75 S.Ct. 80, 99 L.Ed. 674, (Discrimination against an individual union member resulting from the personal animosity of a union official toward the member).
A collective bargaining agent certified by the National Labor Relations Board is authorized to negotiate questions of seniority. Ford Motor Co. v. Huffman, 1953, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048. If defendants, MESA, White and Smith, as plaintiffs' certified collective bargaining representative, have discriminated against plaintiffs, *219 as alleged in this action, the National Labor Relations Act, as amended, affords plaintiffs the right to seek relief before the National Labor Relations Board. The Act also provides for judicial review of final orders of the Labor Board after the exhaustion of all administrative remedies. 29 U.S.C.A. §§ 159 (d), 160(e, f). See, Myers v. Bethlehem Shipbuilding Corp., 1938, 303 U.S. 41, 50, 58 S.Ct. 459, 82 L.Ed. 638. This statutory scheme for relief in labor matters involving interstate commerce is in keeping with the Federal constitutional guarantees of due process. N.L.R.B. v. Jones & Laughlin Steel Corp., 1937, 301 U.S. 1, 42, 57 S.Ct. 615, 81 L.Ed. 893; Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48, 58 S.Ct. 459, 82 L.Ed. 638.
Mount v. Grand International Brotherhood of Locomotive Engineers, 6 Cir., 1955, 226 F.2d 604, relied on by plaintiffs, is not applicable. The Mount case involved rights under the Railway Labor Act, 44 Stat. 577 (1926), as amended, 45 U.S.C.A. §§ 151-164, which does not provide for administrative remedies of activities considered unfair labor practices under the National Labor Relations Act, as amended.
Finally, Section 301 of the Labor Management Relations Act, 61 Stat. 156, 29 U.S.C.A. § 185, does not, as plaintiffs contend, vest this Court with jurisdiction in this case because that provision applies to suits between an employer and a labor union and confers no right upon individuals to bring suit in a United States District Court.[1] E. g., United Protective Workers of America v. Ford Motor Co., 7 Cir., 1952, 194 F.2d 997, at page 1000.
An order is being entered dismissing the complaint.
NOTES
[1] 29 U.S.C.A. § 185, is in part as follows:
"(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263453/ | 142 F.Supp. 798 (1956)
FIDELIS FISHERIES, Limited, Libelant,
v.
Gustaf B. THORDEN, THE KRISTINA THORDEN, her engines, hull, tackle, cargo and her appurtenances thereof, Claimant-Respondent.
United States District Court S. D. New York.
June 28, 1956.
Alexander & Ash, New York City (Edward Ash, New York City, of counsel), for libelant.
Haight, Gardner, Poor & Havens, New York City (John C. Moore and Thomas R. H. Howarth, New York City, of counsel), for claimant-respondent.
THOMAS F. MURPHY, District Judge.
Libelant claims damages because of spoilage of a large part of a cargo of fresh caviar shipped aboard respondent's vessel Kristina Thorden on a voyage from Stockholm to New York. The spoilage was occasioned, according to libelant, by respondent's failure to maintain the below freezing temperature stipulated in the bills of lading.
A host of factual issues have been raised but need not be decided since the undisputed facts are sufficient for disposition.
The caviar originated in the area of the Caspian Sea where it was packed in tins. These tins were flexibly sealed, i. e., they were not hermetically sealed but the top and bottom of the can were held in place by a large rubber band that girdled it permitting expansion and contraction. Each tin weighed approximately two kilograms and three tins were placed in a canvas bag. Nine such bags were then placed in a barrel and the barrel lined with reeds for insulation and packed with ice. The cargo consisted of 35 such packaged barrels and was conveyed north, in a manner not disclosed, to Leningrad, where on October 8, 1947, certain certificates were issued by Russian government authorities respecting the gross weight and condition. The cargo was then transhipped on-deck to Stockholm. It remained in Stockholm in a warehouse under undisclosed conditions for three weeks when it was laden aboard the respondent's vessel on November 5, 1947. Bills of lading were issued acknowledging the receipt of the cargo in apparent good order and condition and acknowledging the gross weight as stated by the shipper, and agreeing to stow it at the below freezing temperature of 2.5°-3° below zero Celsius.
The Kristina Thorden arrived on December 9, 1947, at the Port of New York. *799 The cargo was weighed on outturn and almost immediately placed in a refrigerated warehouse where the temperature was kept at approximately 29° Fahrenheit. Upon examination and inspection of the cargo at such warehouse the uncontested proof showed that seven of the barrels and their contents of caviar were in perfect condition, i. e., the original ice was still frozen in the barrels and the caviar wholesome. The remainder of the barrels were either without ice or had very little ice (and that refrozen) and the caviar putrefied.
Briefly, libelant contends that the caviar in the 35 barrels was in good order and condition when respondent received it; that the barrels weighed the same amount as specified in the bills of lading; that respondent failed to properly refrigerate the cargo and as a result the cargo outturned at a lesser weight, which deficiency was caused by the loss of ice in which the caviar was packed; and that because of the improper temperature and loss of ice the caviar had spoiled. As a legal basis for these contentions libelant relies upon Section 1303(3), (4) of the Carriage of Goods by Sea Act, 46 U.S. C.A. § 1303, and the case of George F. Pettinos, Inc., v. American Export Lines, D.C.E.D.Pa.1946, 68 F.Supp. 759, affirmed 3 Cir., 1947, 159 F.2d 247, to the effect that a clean bill of lading is prima facie evidence of the good order and condition of the goods at the time of shipment, and that the shipper's weights stated on the bill of lading are prima facie evidence of the actual weights. Respondent contends that the burden of proof is squarely upon the libelant to prove good order and condition and that the shipper's weights on the bill of lading are of no legal effect.
While there can be no dispute that a clean bill of lading is prima facie evidence that the goods were received in good order and condition, such evidence is subject to rebuttal the same as any other. McNeely & Price Co. v. The Exchequer, D.C.E.D.Pa.1951, 100 F.Supp. 343; Wagman & Co. v. United States Lines Co., D.C.E.D.Pa.1952, 104 F.Supp. 189; Karabagui v. The Shickshinny, D.C. S.D.N.Y.1954, 123 F.Supp. 99, affirmed sub nom. Kupfermann v. United States, 2 Cir., 1955, 227 F.2d 348. In order to succeed libelant must prove that his goods were in good order and condition when received by the carrier. Schroeder Bros. v. The Saturnia, D.C.S.D.N.Y.1954, 123 F.Supp. 282, affirmed 2 Cir., 1955, 226 F.2d 147. A clean bill of lading gives him a head start in this regard but it is not conclusive. Especially is this so when the carrier has no opportunity to inspect the goods as in the present case. The Niel Maersk, 2 Cir., 1937, 91 F.2d 932; Stirnimann v. The San Diego, 2 Cir., 1945, 148 F.2d 141; Kupfermann v. United States, supra; Schroeder Bros. v. The Saturnia, supra; Copco Steel & Engineering Co. v. The Alwaki, D.C.S.D.N.Y. 1955, 131 F.Supp. 332. Here the caviar was packed in tins which were placed inside canvas bags, which in turn were packed in ice and put into barrels. Obviously, in this case, good order and condition can only apply to the outward appearance of the barrels and not to the condition of the caviar deep inside. With respect to the shipper's weights stated in the bill of lading, the situation is similar. Even assuming Judge Kirkpatrick is correct in the Pettinos case this evidence, too, may be rebutted.
We find without hesitation that claimant-respondent has offered sufficient rebuttal evidence to destroy libelant's prima facie case on both of these issues. It is undisputed that all 35 barrels were stowed together upon the Kristina Thorden in the same refrigeration compartment and under identical conditions. And libelant freely admits that seven of these barrels survived the voyage in perfect condition both as to ice and caviar. Even conceding the truth of all of libelant's charges that the barrels were stowed wrong end up; that the temperatures were not maintained as per the bill of lading; that the temperatures exceeded freezing on some occasions; that the thermometers were inaccurate; that the refrigeration machinery broke down and was overhauled several times how could *800 any of these have had an adverse effect on the cargo if seven of the barrels arrived in perfect condition? The answer is inescapable. Seven of the barrels were in perfect condition when stowed and the remainder were not. Cf. The Maine, 1927 A.M.C. 443. And if this were not enough, further undisputed testimony shows that the caviar had first to make a long journey from the Caspian Sea to Leningrad under unknown conditions. Even assuming the Russian documents are admissible and sufficient to prove the caviar and ice reached Leningrad in perfect condition, the cargo thereafter endured an on-deck voyage from Leningrad to Stockholm and was suffered to languish in a Swedish warehouse under unknown conditions for some weeks before being received by respondent. Couple this with the conditions determined on outturn seven barrels perfect, some containing refrozen ice (i. e., crushed ice that had melted and then refrozen in a solid block) and some with no ice at all and it becomes obvious that respondent has rebutted the prima facie case made out by the bill of lading both as to good order and condition and as to weight. Accordingly, the libel is dismissed.
Pursuant to Rule 46½, 28 U.S.C.A., this opinion is filed in lieu of Findings of Fact and Conclusions of Law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263365/ | 31 Cal.App.4th 114 (1994)
36 Cal. Rptr.2d 835
THE PEOPLE, Plaintiff and Appellant,
v.
STEVEN EID et al., Defendants and Respondents.
Docket No. B076587.
Court of Appeals of California, Second District, Division Three.
December 29, 1994.
*118 COUNSEL
Gil Garcetti, District Attorney, Patrick D. Moran and Brent D. Riggs, Deputy District Attorneys, for Plaintiff and Appellant.
Flanagan, Booth & Unger, J. Michael Flanagan, Floyd J. Siegal, Sherman & Sherman and Victor Sherman for Defendants and Respondents.
OPINION
KLEIN, P.J.
The People appeal the Penal Code section 995 dismissal of an information filed against defendants and respondents Jason Sebastian von Marschner, John Mark Eltchi and Steven Eid (collectively, defendants) alleging various sexual offenses and attempted offenses perpetrated upon an unconscious victim.[1]
Specifically, the information alleged Eltchi had committed two counts of oral copulation of an unconscious victim, attempted rape of an unconscious victim, and three counts of genital penetration of an unconscious victim with a foreign object. (§§ 288a, subd. (f); 664/261, subd. (a)(4); 289, subd. (d).) In two of the penetration by foreign object counts, it was further alleged Eltchi personally had inflicted great bodily injury within the meaning of section 12022.8.
The information alleged the same offenses as to von Marschner, and additionally alleged von Marschner had committed one count of rape of an unconscious victim in which he personally had inflicted great bodily injury within the meaning of section 12022.7, and that he personally had inflicted great bodily injury in the commission of all three counts of penetration by a foreign object within the meaning of section 12022.8.
The information alleged Eid had committed two counts of genital penetration of an unconscious victim with a foreign object and one count of rape of an unconscious victim. (§§ 289, subd. (d); 261, subd. (a)(4).) Each count alleged Eid personally had inflicted great bodily injury within the meaning of section 12022.7 or 12022.8.
*119 SUMMARY STATEMENT
At the preliminary hearing, the People presented the hearsay testimony of the detective who had investigated the matter. (§ 872, subd. (b).)[2]
The defendants sought to call the victim as a witness on the issue of consciousness at the time of the attack and to negate the great bodily injury allegations arising out of the victim's contraction of pelvic inflammatory disease, assertedly as a result of the attack.
The magistrate denied the request because the defense failed to make a sufficiently specific offer of proof pursuant to section 866, subdivision (a).[3] The superior court ruled the magistrate's refusal to allow the defense to call the victim constituted an abuse of discretion and dismissed the case.
We conclude the magistrate properly refused the defense request to call the victim and reverse the order of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
1. The People's evidence.
At the preliminary hearing the People presented the hearsay testimony of Los Angeles Police Detective Judy Jenkins.
a. Statements of victim and witnesses.
Jenkins testified she first interviewed Heidi J., the 19-year-old victim in this case, on May 12, 1992. Heidi told Jenkins she had been walking home *120 about 3 p.m. on the afternoon of May 11, 1992, when Eltchi called to her from in front of the von Marschner home on Avenue 64 in Pasadena where there was a party in progress. Heidi did not know Eltchi but she walked over to the party.
After Heidi consumed "a couple of beers or so" Eltchi asked if she would have sex with him. She said she would not. Eltchi then asked "if she had considered having sex with two guys or more, and she said that she'd never do that, [because] ... she had a boyfriend...." Eltchi asked her several times to have sex with him "and she specifically told him no."
Heidi also "took a hit off [a marijuana cigarette]." "[A]fter she took the hit of marijuana, she just kind of passed out. She didn't recall much of anything after that." "She remembered being helped through a window, and she remembered someone penetrating her vaginal area, and she said she remembered three or four people being involved with that penetration, just kind of pawing at her, being on top of her."
Heidi also recalled seeing flashes of light as if someone was photographing her. Heidi said "[s]he never consented to having sex with anyone there, and she had no intentions of having sex with anyone at that party or any time during that day."
When Heidi awoke at approximately 11 p.m. she asked von Marschner "who was the person that [had been] there on top of her...." von Marschner gave Heidi his phone number and said they would talk.
Von Marschner telephoned Heidi's father who picked her up. When Heidi arrived home, her vaginal area was sore, she could barely walk, and her underwear was missing. Her father took her to the hospital.
Jenkins spoke with Heidi again at the police station on the next day. As Heidi left the police station, she passed out and was rushed to the emergency room. Heidi was examined by Dr. Luna who told Jenkins he had seen Heidi the previous night.
On the second examination, Luna found "quite a bit of bruising, and he said that it was quite substantial, and that it confirmed his original diagnosis that a sexual assault had occurred." Luna "described the sexual assault as brutal, and that a person would not just normally subject themselves to these types of injuries." Luna told Jenkins Heidi's injuries were "in the top 25 percent of the wors[t] case injuries that he had ever seen."
Heidi was admitted to the hospital on June 19, 1992, and was discharged on June 25. Dr. Al-Sarraf, Heidi's attending physician, told Jenkins Heidi *121 had a severe infection known as pelvic inflammatory disease (PID) which had been treated with antibiotics and, in Al-Sarraf's opinion, was related to the sexual assault.
Heidi told Jenkins she had had intercourse only once prior to this incident.
Although von Marschner, Eltchi and Eid told Jenkins Heidi had passed out, Heidi used the term "pasted out." Jenkins testified she asked Heidi "what it meant, and she said that she passed out."[4]
b. Statements of the defendants.
Jenkins separately interviewed each of the defendants on May 12, 1992. Each of the defendants was advised of and waived his rights per Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974]. The magistrate considered these statements only as to the declarant.
(1) Von Marschner's statement.
Von Marschner told Jenkins that on May 11 Eltchi called Heidi over to von Marschner's house and offered her a beer which she accepted. She and Eltchi spoke for some time.
Von Marschner later found Eltchi and Heidi on his bed "making out." Von Marschner tried to give them privacy but when he saw Eltchi kissing Heidi's body, he "did the same." Von Marschner told Jenkins he penetrated Heidi with his fingers and that they orally copulated each other. Von Marschner said "she threw up, and that she was quite drunk. He said that she was not combative." Von Marschner claimed Heidi willingly participated in these acts. He "tried to penetrate her, but he couldn't, because he could not get an erection, because he was too drunk."
Von Marschner also told Jenkins Heidi "had passed out" and "that once two people got involved in the incident, that he knew that there was no control, that he felt that it wasn't right."
Von Marschner told Jenkins at some point Eltchi telephoned Eid. When Eid arrived he "`got undressed after seeing [Heidi], told her she had thrown up on her blouse, and proceeded to take off her blouse.'" Eltchi and Eid videotaped Heidi and Eid took photographs of her. Eid put on a condom, and "penetrated Heidi's vagina with his penis." At that point Heidi cried out and told Eid to stop. Eid took Heidi's underwear and said he was going to keep it.
*122 Von Marschner erased the videotape because "it looked pretty bad. It looked like they had raped her."
On cross-examination, Jenkins admitted von Marschner told her he had erased the videotape, in part, because it showed them doing things to Heidi, not Heidi doing things to them.
(2) Eltchi's statement.
Eltchi told Jenkins that Heidi accepted a beer and agreed to have sex with him. Eltchi said he asked Heidi about having sex with more than one guy "and she didn't say yes, and she didn't say no." Eltchi and Heidi entered von Marschner's bedroom through the window where they engaged in what Eltchi described as an "oral feast." Eltchi tried to penetrate Heidi but could not.
Eltchi admitted they engaged in mutual oral copulation, that he penetrated Heidi's vagina with his finger, and that von Marschner also was involved in the sexual activity. Eltchi claimed the video they took of Heidi after Eid arrived would show her voluntarily engaging in sexual acts. Eltchi recalled Heidi "got really sick and started throwing up, and ... they were all on her, and once she made an indication, no more, no more, they all stopped...."
(3) Eid's statement.
Eid told Jenkins he arrived at von Marschner's home at approximately 8 p.m. Eltchi told Eid he was doing a "double pen," which meant double penetration. Eid at first videotaped the activity but then became involved. Heidi orally copulated him and, while they were watching the videotape he had made, she rubbed his leg. Eid put on a condom and penetrated her.
When Heidi began to cry, he dressed and left. Eid took snapshots of Heidi and took her underwear as a momento. Eid admitted penetrating Heidi with his finger, and that she orally copulated him. Heidi appeared sober throughout the incident and they stopped immediately when she said no more. As he left, von Marschner and Heidi "started to make out again."
2. Defense evidence.
Dhia Al-Sarraf, M.D., testified he admitted Heidi to the hospital on June 19, 1992, to treat acute bilateral PID, a sexually transmitted disease usually caused by intercourse with an individual infected with gonorrhea or chlamydia. Heidi's PID possibly had been caused by the sexual contact in this case. *123 PID develops within a few days or a few weeks of the exposure. PID can be, but is not likely to be, caused by bacterial infection from an individual who does not have a sexually transmitted disease.
3. The defense attempt to call Heidi as a witness.
The defendants attempted to call Heidi as a witness at the preliminary hearing. Pursuant to section 866, subdivision (a), the prosecutor requested an offer of proof from the defense as to the testimony expected of the witness. (See fn. 3, ante.) Although Heidi had refused to speak to defense investigators, defense counsel advised the magistrate they expected she would admit the PID had been caused by other sexual contact and that she had not been unconscious at the time of the alleged sexual assaults.
Defense counsel stated: "We have information from medical reports to indicate that this [PID] was a pre-existing condition, and other medical testimony indicating that it could not possibly have resulted from this particular incident.... We also have information from prior medical reports that the victim was abused by the father. [¶] ... [W]e want to be able to call the father and potentially Heidi ... for the purpose of establishing that she had a pre-existing medical condition which was not a result of this particular incident."
Later in the proceedings, the parties again addressed the issue. The defense asserted, based upon the defense investigation of the case and interviews with other individuals who had been present at the party, "it's clear that Heidi consented to what went on here, and we believe that under oath she will tell the truth."
The defense proffered they believed Heidi would admit she "was not unconscious, that she voluntarily went into the room, that she was making out in the front yard with one or more of the boys in question.... [I]f she tells the truth, [she] will definitely negate the elements of the crime, in fact, the entire crime."
Defense counsel stated: "I have statements from two other witnesses who were present at the time outside the von Marschner home, in which they observed Heidi's demeanor, her willingness to participate, her kissing of the boys, her voluntarily going into the house through the window, things of that nature. So we have independent witnesses and statements from these witnesses saying that she did these things all voluntarily. She was flirting, and she was a fool and she was not drunk, she was not falling down, she was not unconscious. So we have specific people who have informed us, and that's *124 what we're basing the offer of proof on, that she did these things, contrary to what she allegedly told the police in this case."
The defense also relied on Heidi's assertedly ambiguous statements to Jenkins in that she allegedly had passed out for seven to eight hours after consuming only a few beers and one or two hits from a marijuana cigarette. Additionally, they argued an unconscious person cannot climb through a window.
The magistrate ruled the defense had not made an adequate offer of proof. The magistrate stated "an offer of proof has to be that I have spoken with this witness, and she told me X, Y and Z, and she will take the witness stand and say X, Y, and Z. [¶] Now that's an offer of proof."
When defense counsel offered to provide the trial court with in camera statements of witnesses, the magistrate suggested calling a third party percipient witness is "different than calling Heidi." In later discussions with counsel, the magistrate advised the defense they need not have spoken personally with Heidi, and suggested by way of example, a hearsay report of an admission by Heidi that her statement to Jenkins was false would suffice. "[Y]ou must come before the court and give me some reason to believe that the complaining witness will, in fact, change her story. And I have no reason to believe that that will be the case, and under [Evidence Code section] 352, I'm obligated to exclude testimony if it will take an undue consumption of time.... [W]ithout some assurance that this complainant will retract what she said to the officer, it would be a fishing expedition, it would be speculative, and it could be undue [consumption] of time."
After further discussion, the magistrate asked counsel what the defense offer of proof would be with respect to prior sexual activity. Counsel responded, "The offer of proof ... is, that if she says she had unprotected sexual intercourse, and you apply the medical tests, you may disbelieve Heidi and throw this entire case out."
The magistrate stated: "I specifically asked you what specifically will she say, and it's always if she says this way, and if it's this way, it will be that." The magistrate concluded the defense had not made a proper offer of proof and disallowed the request to call Heidi as a witness.
4. The magistrate's finding of probable cause.
The magistrate found probable cause to hold the defendants to answer based upon Jenkins's testimony.
*125 5. The superior court's ruling.
Each of the defendants sought dismissal on the ground they had not been legally committed. The superior court found the magistrate had failed to exercise sound discretion in denying the request to call Heidi as a witness and dismissed the information.
CONTENTIONS
The People contend the magistrate properly concluded the defense had failed to make an offer of proof sufficient to warrant calling Heidi as a witness.
DISCUSSION
1. Standard of review.
(1) Upon review of a motion to set aside an information, this court disregards the superior court's ruling and directly examines that of the magistrate. (People v. Shepard (1991) 228 Cal. App.3d 1410, 1414 [279 Cal. Rptr. 551].) We, like the superior court, must draw every legitimate inference in favor of the magistrate's ruling and cannot substitute our judgment on the credibility of witnesses or weight of the evidence. (People v. Laiwa (1983) 34 Cal.3d 711, 718 [195 Cal. Rptr. 503, 669 P.2d 1278]; People v. Woods (1993) 12 Cal. App.4th 1139, 1147-1148 [15 Cal. Rptr.2d 906].)
2. The magistrate's denial of the defendants' request to call Heidi as a witness did not constitute an abuse of discretion.
a. Proposition 115 impact.
Proposition 115 has "considerably narrowed" the purpose of preliminary hearings in this state. (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1080 [2 Cal. Rptr.2d 160, 820 P.2d 262].) It added section 30, subdivision (b), to article I of the state Constitution (section 30(b)) which states: "In order to protect victims and witnesses in criminal cases, hearsay evidence shall be admissible at preliminary hearings, as prescribed by the Legislature or by the people through the initiative process." (Italics added.)
Proposition 115 amended section 872, subdivision (b), to permit a probable cause determination based on hearsay statements of a qualified police officer (see fn. 2, ante). Proposition 115 also enacted Evidence Code section *126 1203.1 which created a preliminary hearing exception to the general requirement that all hearsay declarants be made available for cross-examination. (Whitman v. Superior Court, supra, 54 Cal.3d at p. 1070.)
Section 866, subdivision (a), also as amended by Proposition 115, restricts the right of the accused to call a witness at the preliminary hearing. Upon a request by the prosecutor, the magistrate is required to obtain "an offer of proof from the defense as to the testimony expected from the witness." (§ 866, subd. (a).) "The magistrate shall not permit the testimony of any defense witness unless the offer of proof discloses to the satisfaction of the magistrate, in his or her sound discretion, that the testimony of the witness, if believed, would be reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness." (§ 866, subd. (a).)
With these provisions in mind, we address the magistrate's ruling.
b. The defendants' offer of proof was inadequate.
(2a) Here, the prosecutor requested an offer of proof from the defense pursuant to section 866, subdivision (a), in the first instance, but the defense offer was inadequate.
Initially, we note that if Heidi had testified the incident was consensual as the defense asserted she would, an affirmative defense would have been established. Similarly, although the great bodily injury enhancement was based on Heidi's severe injuries as well as her contraction of PID, had Heidi admitted a preexisting condition of PID, the great bodily injury allegation would have been undermined. However, the defense failed to make an offer of proof which demonstrated Heidi would have so testified.
(3) Generally, in order to preserve any evidentiary point for appellate review, the proponent of the evidence must make an offer of proof regarding the anticipated testimony or ask questions which presage the expected response. (See People v. Whitt (1990) 51 Cal.3d 620, 648 [274 Cal. Rptr. 252, 798 P.2d 849]; Evid. Code, § 354, subd. (a).) Failure to make an adequate offer of proof precludes consideration of the alleged error on appeal. (Pugh v. See's Candies, Inc. (1988) 203 Cal. App.3d 743, 758 [250 Cal. Rptr. 195].)
The substance of evidence in a valid offer of proof must be attributed to the testimony of specific witnesses, writings, material objects, or other things presented to the senses, to be introduced to prove the existence or *127 nonexistence of a fact in issue. (In re Mark C. (1992) 7 Cal. App.4th 433, 444 [8 Cal. Rptr.2d 856]; McCleery v. City of Bakersfield (1985) 170 Cal. App.3d 1059, 1074 [216 Cal. Rptr. 852]; United Sav. & Loan Assn. v. Reeder Dev. Corp. (1976) 57 Cal. App.3d 282, 294 [129 Cal. Rptr. 113].) But an offer of proof sufficient to preserve an evidentiary point for review does not necessarily entail the specificity demanded by section 866, subdivision (a). (2b) Thus, in one respect, the defendants made a sufficient offer of proof in that they preserved the propriety of the magistrate's ruling for review. Upon examination, however, the offer of proof was based on nothing more than optimistic expectation Heidi would admit her statements to Jenkins were false. That offer was insufficient to warrant cross-examination of her at the preliminary hearing under section 866, subdivision (a).
Here, although the defense claimed numerous independent witnesses would contradict Heidi's account of the incident, none of these witnesses was named and none was called to testify. Moreover, even taking the defense offer to produce further statements in camera at face value, the magistrate, in the exercise of its discretion, found the defense had produced nothing more than an expectation Heidi would retract her statements to Jenkins.
Thus, the defendants failed to demonstrate a purpose for Heidi's testimony within section 866, subdivision (a), that outweighed the public policy of protecting victims of crime.[5], [6]
*128 c. The magistrate's ruling did not violate the defendants' alleged constitutional right to examine Heidi as a hostile witness.
(4) Von Marschner and Eid contend the refusal to allow Heidi's testimony violated their constitutional right to confront and to examine her on the issue of consciousness which was an element of each offense charged. Eid asserts a specific offer of proof is not required for a hostile witness. In this argument, they are, in effect, attacking the constitutionality of section 866, subdivision (a).
This claim lacks merit.
In the first instance, other than the probable cause hearing held to justify the continued detention of the accused, "... there exists no federal constitutional right to a preliminary hearing to determine whether a case should proceed to trial." (Whitman v. Superior Court, supra, 54 Cal.3d at pp. 1078-1079.)
Additionally, "[t]he right to confrontation is basically a trial right." (Barber v. Page (1968) 390 U.S. 719, 725 [20 L.Ed.2d 255, 260, 88 S.Ct. 1318], italics added; Whitman v. Superior Court, supra, 54 Cal.3d at p. 1079.) It "includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness. A preliminary hearing is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial." (Barber v. Page, supra, 390 U.S. at p. 725 [20 L.Ed.2d at p. 260]; Whitman v. Superior Court, supra, at p. 1079.)
The requirements of the confrontation clause of the Sixth Amendment are satisfied as long as the defendant is "assured of full and effective cross-examination at the time of trial." (California v. Green (1970) 399 U.S. 149, 159 [26 L.Ed.2d 489, 497, 90 S.Ct. 1930].)
We therefore find no violation of the right to confront and cross-examine in the magistrate's refusal to allow the defendants to call Heidi as a witness at the preliminary hearing. (See Whitman v. Superior Court, supra, 54 Cal.3d at pp. 1075-1082.)
*129 d. Section 866, subdivision (a), is not unconstitutional as violative of article I, section 28, subdivision (d).[7]
(5) Eltchi contends section 866, subdivision (a), is unconstitutional because it potentially excludes relevant evidence from a criminal proceeding in violation of article I, section 28(d), in that the testimony of the alleged victim of a charged crime must be seen as relevant to the determination of probable cause.
This claim lacks merit.
Although the preliminary hearing previously had been recognized as an opportunity for discovery and trial preparation (see Whitman v. Superior Court, supra, 54 Cal.3d at p. 1081; People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 759 [191 Cal. Rptr. 1, 661 P.2d 1081]), after Proposition 115 "the purpose of a preliminary examination [is] to establish whether there exists probable cause to believe that the defendant has committed a felony. The examination shall not be used for purposes of discovery." (§ 866, subd. (b).)
Proposition 115 thus substantially altered the nature and purpose of a preliminary hearing in this state. (Whitman v. Superior Court, supra, 54 Cal.3d at p. 1080.) The express purpose of Proposition 115 as set forth in subdivision (c) of section 1 is: "[T]o restore balance to our criminal justice system, to create a system in which justice is swift and fair, and to create a system in which violent criminals receive just punishment, in which crime victims and witnesses are treated with care and respect, and in which society as a whole can be free from the fear of crime in our homes, neighborhoods, and schools."
The combined constitutional and statutory provisions of Proposition 115 seek to protect victims and witnesses, streamline criminal procedure, and limit the preliminary hearing to a determination of probable cause. In order to achieve these legitimate purposes, the probable cause determination now may be based on hearsay declarations and a defendant's opportunity to cross-examine the hearsay declarant has been restricted. Section 866, subdivision (a), requires the magistrate, upon a request by the prosecutor, to seek from the defense an offer of proof showing the relevance of the anticipated *130 testimony before the defense may call a witness at the preliminary hearing. The section vests in the magistrate discretion to limit the accused's right to call witnesses at the preliminary hearing and, in effect, defines relevant evidence as testimony which "would be reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness." (§ 866, subd. (a).)
Given these pronouncements and by reason of the constitutional and statutory changes brought about by Proposition 115, the scope of relevant defense evidence at the preliminary hearing has been substantially narrowed. Evidence that falls outside the statutory parameters of section 866, subdivision (a), is irrelevant.
As so construed, section 866, subdivision (a), does not exclude relevant evidence and does not impermissibly conflict with article I, section 28(d).
3. Sufficient evidence supports the magistrate's finding of probable cause.
(6) Eltchi contends the evidence was insufficient to demonstrate Heidi was unconscious and that Eltchi was aware of that fact at the time of the charged offenses.
This claim is meritless.
The issues before a magistrate on preliminary hearing are whether a public offense has been committed and whether there is probable cause to believe the defendant is guilty thereof. (§§ 871, 872, subd. (a).)
The evidence presented by the People clearly met that standard.
CONCLUSION
As modified by Proposition 115, preliminary hearings are now limited to establishing probable cause only; therefore, the scope of that proceeding dictates what is relevant. Discovery is no longer permissible. Section 866, subdivision (a), allows for a broad introduction of evidence, both by the prosecution and the defense. However, the defendants failed to make an offer of proof sufficient to warrant allowing them to cross-examine the victim at the preliminary hearing pursuant to section 866, subdivision (a). Because the accuseds were not illegally committed, the order of dismissal must be set aside.
*131 DISPOSITION
The order of dismissal is reversed.
Croskey, J., and Kitching, J., concurred.
A petition for a rehearing was denied January 30, 1995, and respondents' petitions for review by the Supreme Court were denied April 12, 1995. Mosk, J., was of the opinion that the petitions should be granted.
NOTES
[1] All subsequent statutory references are to the Penal Code, unless otherwise specified.
[2] Section 872, subdivision (b), as amended by Proposition 115 effective June 5, 1990, provides: "Notwithstanding Section 1200 of the Evidence Code [(the hearsay rule)], the finding of probable cause may be based in whole or in part upon the sworn testimony of a law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted. Any law enforcement officer testifying as to hearsay statements shall either have five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training which includes training in the investigation and reporting of cases and testifying at preliminary hearings."
[3] Section 866, subdivision (a), as amended by Proposition 115, grants the magistrate discretion to limit a defendant's right to call witnesses at the preliminary hearing. It provides: "When the examination of witnesses on the part of the [P]eople is closed, any witness the defendant may produce shall be sworn and examined. [¶] Upon the request of the prosecuting attorney, the magistrate shall require an offer of proof from the defense as to the testimony expected from the witness. The magistrate shall not permit the testimony of any defense witness unless the offer of proof discloses to the satisfaction of the magistrate, in his or her sound discretion, that the testimony of the witness, if believed, would be reasonably likely to establish an affirmative defense, negate an element of a crime charged, or impeach the testimony of a prosecution witness or the statement of a declarant testified to by a prosecution witness." (Italics added.)
[4] The superior court amended the preliminary hearing transcript in accordance with corrections submitted by the parties.
[5] Similar strict showings are required in other contexts.
Under Franks v. Delaware (1978) 438 U.S. 154, 155-156 [57 L.Ed.2d 667, 671-672, 98 S.Ct. 2674], a defendant may challenge the veracity of the affidavit underlying a facially valid search warrant based on official misconduct only upon a substantial preliminary showing the affiant has made false statements and the affidavit's remaining contentions are insufficient to justify a finding of probable cause.
The attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. (Franks v. Delaware, supra, 438 U.S. at p. 171 [57 L.Ed.2d at pp. 681-682].) Self-serving denials of the offenses charged, without more, are insufficient. (People v. Box (1993) 14 Cal. App.4th 177, 185 [17 Cal. Rptr.2d 504]; People v. Sandlin (1991) 230 Cal. App.3d 1310, 1318 [281 Cal. Rptr. 702]; People v. Duval (1990) 221 Cal. App.3d 1105, 1113 [271 Cal. Rptr. 240]; cf. U.S. v. Johns (9th Cir.1988) 851 F.2d 1131, 1134 [affidavits of two experts averring the allegations of the affidavit were scientifically impossible, plus denials by defendants sufficient to trigger hearing]; see also People v. Luttenberger (1990) 50 Cal.3d 1, 22 [265 Cal. Rptr. 690, 784 P.2d 633] [defendant must offer evidence casting some reasonable doubt regarding either the existence of an informant or the truthfulness of the affiant's report before a court is required to conduct in camera review or order discovery relating to a warrant affidavit].)
[6] We therefore need not address the People's further claim that, to the extent the defense sought to attack Heidi's credibility with evidence of her past sexual conduct, they failed to file a written motion supported by an affidavit stating the offer of proof. (People v. Jordan (1983) 142 Cal. App.3d 628, 631 [191 Cal. Rptr. 218]; Evid. Code, § 782.)
[7] Section 28, subdivision (d), of article I of the California Constitution (article I, section 28(d)), adopted as part of Proposition 8, provides in pertinent part: "Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding. ... Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103." (Italics added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263228/ | 31 Cal.App.4th 1513 (1995)
37 Cal. Rptr.2d 810
POLLY PARSONS, Plaintiff and Appellant,
v.
EDWARD TICKNER et al., Defendants and Respondents.
Docket No. B074550.
Court of Appeals of California, Second District, Division Four.
February 2, 1995.
*1518 COUNSEL
Neville L. Johnson and D. Victoria LaBrie for Plaintiff and Appellant.
Berry & Cahalan, James H. Berry, Jr., W. Paul Baskett, Neal & Harwell, Robert L. Sullivan, Arthur M. Wilkof and Alan Diamond for Defendants and Respondents.
OPINION
VOGEL (C.S.), J.
INTRODUCTION
Appellant Polly Parsons appeals from the judgments of dismissal entered upon orders sustaining without leave to amend the general demurrer of respondents Edward Tickner, James Dickson, Edward Tickner, and James Dickson doing business as Tickner Dickson Music, Len Freedman, and Len Freedman doing business as Len Freeman Music (hereafter collectively referred to as the Tickner respondents) to her first amended complaint and the general demurrer of respondent Gretchen L. Parsons to her second amended complaint. We reverse because we find appellant has sufficiently pled her causes of action.
FIRST AMENDED COMPLAINT TICKNER DEMURRER
The 17th through 22d causes of action of the first amended complaint alleged against the Tickner respondents are labeled fraud and deceit, breach of fiduciary duty, constructive fraud, breach of oral contract, rescission of oral contract, and conversion. Stripped to their essential parts, those claims can be collectively summarized as follows:
Gram Parsons was a musician and composer of country rock music. In 1972, he entered into an agreement with Edward Tickner and James Dickson to manage his musical career. A company called Wait & See Music was *1519 formed to publish and promote Parsons's music. Parsons was the owner of Wait & See Music; the role of Tickner and Dickson was to collect the royalties due Parsons. Parsons never transferred any copyrights for his music to either Tickner or Dickson. Nevertheless, when Parsons died in 1973, Tickner and Dickson wrongfully converted Wait & See and its catalog of Parsons's songs to their own company, "Tickson Music," and proceeded to exploit the Wait & See catalog for their own economic advantage.
Following Parsons's death intestate, probate proceedings were opened on September 20, 1973, in the Los Angeles Superior Court. Parsons was survived by his wife, respondent Gretchen Parsons, and his daughter from a prior marriage, appellant Polly Parsons. Gretchen Parsons was appointed administrator of his estate.
Among the personal property inventoried in the estate were writer's royalty rights for the music composed by Gram Parsons. The royalty rights refer to contracts scheduled in the inventory according to the name of the publisher, the royalty percentage, and the respective catalog of songs. The contracts provide for distribution to the composer (e.g., Parsons) a percentage of the income generated by recording, production, and other uses of the songs in a catalog.
One of the royalty contracts scheduled in the inventory involved songs published by Wait & See. The catalog had 11 songs, and royalty percentages ranged from 37.5 percent to 75 percent.
On December 11, 1985, Gretchen Parsons, individually and as administrator of the estate, entered into a stipulation with Polly Parsons to settle and to resolve all objections to the filing of the first and final accounting and to provide for the closing of the estate and final distribution of assets. The stipulation provided that Gretchen Parsons and Polly Parsons would each receive one-half of all future income from the inventoried royalty contracts, including those published by Wait & See.
The stipulation also provided that any unmarshalled assets, any after-discovered assets, and any assets not shown on the inventory of the estate were distributed to Polly Parsons "as to a 100% interest therein." The stipulation was approved and included in the December 11, 1985, order settling the first and final report in the following terms: "... as to any unmarshaled, after-discovered or unknown assets, that is, assets which have not been inventoried in the estate or otherwise shown on the accountings on file, ... said assets be and hereby are distributed to Polly A. Parsons in their entirety, and Gretchen L. Parsons shall have no interest therein."
*1520 The first amended complaint further alleges that Tickner and Dickson concealed the fact that Gram Parsons had never transferred any interest in the Wait & See catalog of songs to them, and instead had falsely represented to Gretchen Parsons and Polly Parsons that they (Tickner and Dickson) were entitled to publish the catalog, subject only to the limited obligation to distribute to the estate and heirs specified royalty payments. Neither Gretchen Parsons nor Polly Parsons became aware of Tickner's and Dickson's unlawful exploitations of the Wait & See catalog until June of 1991 when respondent Freedman, the alleged purchaser of the Wait & See catalog, informed Polly Parsons's attorney that there were no documents or agreements transferring Gram Parsons's copyrighted compositions either to Tickner and Dickson or to him (Freedman).
Thus, it can be seen that the operative allegations of the first amended complaint are: (1) Gram Parsons never transferred any copyrights for the songs contained in the Wait & See catalog to Tickner and Dickson; (2) the Tickner respondents fraudulently concealed from Gram Parsons's estate and heirs, including Polly Parsons, that no transfer had ever occurred; (3) the Tickner respondents falsely represented they were the publishers of the Wait & See catalog and were only obligated to distribute a specified percentage royalty to the estate and heirs; and (4) Tickner and Dickson commercially exploited the Wait & See catalog for their own benefit.
Polly Parsons alleges that the Wait & See catalog is an unmarshalled, uninventoried, and after-discovered asset of Gram Parsons's estate within the terms of the stipulation, so that she has a 100 percent interest therein and the right to receive all revenues generated from the promotion of its songs. Polly Parsons seeks a declaration of her ownership to the Wait & See catalog and a return of all earned revenues, royalties, and income received by Tickner, Dickson, and Freedman.
Her first amended complaint further alleged that the Tickner respondents entered into an oral management agreement with Gram Parsons, thereby creating a fiduciary relationship. The complaint asserted Gram Parsons was "particularly vulnerable" to respondents because he was "unsophisticated in business and often intoxicated," a drug addict, and "oblivious to business practices, and relied on others to handle his business affairs." Consistent with her other allegations, Polly Parsons alleged that respondents, in whom Gram Parsons reposed total trust, breached their fiduciary duties by, inter alia, actively concealing from him the true facts of his business affairs and wrongfully appropriating the Wait & See catalog for their own benefit.
As to each cause of action, the Tickner respondents demurred on the grounds of lack of the legal capacity to sue, failure to state facts sufficient to *1521 constitute a cause of action, uncertainty and failure to allege if the management agreement was oral or implied. (Code Civ. Proc., § 430.10, subds. (b), (e), (g).)
DISCUSSION OF DEMURRER OF TICKNER RESPONDENTS TO FIRST AMENDED COMPLAINT
(1) In reviewing the sufficiency of the complaint against the Tickner respondents' demurrer, we must treat the demurrer as admitting all allegations of the complaint as true. As it is settled law that in evaluating the sufficiency of a complaint against a demurrer a court will consider matters that may be judicially noticed, we will also take judicial notice of the probate proceeding as it was properly noticed by the trial court. (Evid. Code, § 459, subds. (a) & (b).) (Javor v. State Board of Equalization (1974) 12 Cal.3d 790, 796 [117 Cal. Rptr. 305, 527 P.2d 1153].)
"On demurrer, it is not the function of a trial court, or of this court, to speculate on the ability of a plaintiff to support, at trial, allegations well pleaded." (Meyer v. Graphic Arts International Union (1979) 88 Cal. App.3d 176, 179 [151 Cal. Rptr. 597].) As a reviewing court, we are not bound by the construction of the pleadings by the trial court, but we make our own independent judgment of the sufficiency of the complaint. (Miller v. Bakersfield News-Bulletin, Inc. (1975) 44 Cal. App.3d 899, 901 [119 Cal. Rptr. 92].) Applying these well-settled principles, we shall review the sufficiency of appellant's pleadings.
I
(2a) The Tickner respondents generally demurred on the ground that Polly Parsons lacked the legal capacity to sue. They relied on Probate Code section 573, subdivision (a) which had provided that "... no cause of action is lost by reason of the death of any person, but may be maintained by ... the [deceased's] personal representative." They contended that if Polly Parsons's premise that Gram Parsons never transferred the copyrighted compositions contained in the Wait & See catalog to Tickner and Dickson was correct, the catalog was after-discovered and uninventoried property and that the claim for that class of property could only be brought by a personal representative in a supplemental administration. (Prob. Code, §§ 573 and 12252.)[1] Their contention fails because the law no longer requires the appointment of a personal representative.
*1522 Prior to the January 1993 hearing on the demurrer, Probate Code section 573, subdivision (a) was repealed and replaced by Code of Civil Procedure sections 377.10 through 377.35 as part of a comprehensive revision of the law pertaining to the survival and continuation of actions belonging to decedents. It is apparent from the record that the parties were totally unaware of this change in the law. This is probably explained by the fact that the demurrer was filed in December 1992 but heard on January 7, 1993, and the repeal of Probate Code section 573 and the adoption of Code of Civil Procedure section 377.10 et seq. became effective January 1, 1993.
These changes in the law were recommended by the California Law Revision Commission because "... statutes concerning litigation involving decedents that appeared in the Probate Code were revised on recommendation of the Commission, but related provisions in the Code of Civil Procedure concerning survival and continuation of actions, statutes of limitations, and proper parties have not been subject to comprehensive review." (Revised Recommendation Relating to Annual Report for 1992, Litigation Involving Decedents (Apr. 1992) 22 Cal. Law Revision Com. Rep. (1992) p. 899.) The enactment of Code of Civil Procedure section 377 et seq. completed the commission's stated objective to "consolidate[] and reorganize[] the existing statutes in a comprehensive fashion." (22 Cal. Law Revision Com. Rep., supra, at p. 899.)
(3) In the alternative, the Tickner respondents contend that Polly Parsons's claim does not embrace an after-discovered asset because the Wait & See catalog was included in the inventory of the estate. However, they fail to recognize the catalog was scheduled as a "Writer's Royalty rights in ... musical properties" which provided only for payment of royalty percentages. However, the catalog as such was not inventoried as an asset of the estate. The right to receive a royalty payment from the publisher of the catalog is qualitatively different from the right to receive revenue predicated upon ownership of the catalog. Only the former was scheduled in the inventory; the latter, which is the functional equivalent of owning the songs contained in the catalog, was not. This is perfectly clear from the order for distribution providing for the equal division of the writer's royalty interest between Gretchen Parsons and Polly Parsons and granting Polly Parsons a 100 percent interest in all uninventoried property. Polly Parsons's claim is to the Wait & See catalog of songs, an uninventoried asset of the estate. Therefore, *1523 her claim comes squarely within Code of Civil Procedure section 377.30[2] because she is Gram Parsons's successor in interest with the right to commence and, in this instance, continue the present action.
(2b) Newly enacted Code of Civil Procedure section 377.10 et seq. must be applied retroactively to this action. (4) There is no vested right in existing remedies and rules of procedure and evidence. "[G]enerally speaking, the Legislature may change such rules and make the changes apply retroactively to causes of action or rights which accrued prior to the change. [Citations.]" (7 Witkin, Summary of Cal. Law (9th ed. 1990) Constitutional Law, § 492, p. 682.) (2c) The repeal of Probate Code section 573 and the enactment of Code of Civil Procedure section 377.10 et seq. are procedural only and operate retroactively. Polly Parsons's standing to pursue the claim that the Tickner respondents never obtained an enforceable copyright interest in the Wait & See catalog is now governed by Code of Civil Procedure section 377.10 et seq. In accordance with sections 377.10, subdivision (b), and 377.11, Polly Parsons is Gram Parsons's successor in interest to the Wait & See catalog.[3]
Code of Civil Procedure section 377.32 requires the "person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent's successor in interest" to file an affidavit stating, among other things, that "`No proceeding is now pending in California for administration of the decedent's estate'" and "[i]f the decedent's estate was administered, a copy of the final order showing the distribution of the decedent's cause of action to the successor in interest." Literally, this provision does not require that the affidavit be filed as a condition precedent *1524 to commencing or continuing the action. However, failure to file the affidavit could possibly subject the action to a plea in abatement. (See, e.g., 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 1051 et seq.)[4]
(5) The Tickner respondents suggest that Code of Civil Procedure section 377.10 et seq. are limited to small estates under Probate Code section 7660 and nonprobate transfers, e.g., trusts, joint tenancy, etc. They rely on comments in the 1992 Annual Report of the California Law Revision Commission to the effect that small estates and nonprobate transfers involve no administration of the decedent's estate, justifying the commission's recommendation that Probate Code section 573 be repealed and the "successor in interest" provision be enacted. We disagree. Significantly, the affidavit required by Code of Civil Procedure section 377.32 must include information about the status of any closed estates, regardless of the size of the estate, and makes no inquiry regarding nonprobate transfers. Thus, it is patent that the Legislature did not limit these provisions to litigation involving decedents of small estates or nonprobate transfers.
Pragmatically, "[t]he cause of action belongs to the decedent's heirs or devisees on the decedent's death or rightfully passes to a successor in interest who takes property that is the subject of the litigation, e.g., by virtue of a contract provision or account agreement or by operation of law. The proposed law authorizes the successor in interest to bring an action if there is no probate." (Ann. Rep. for 1992, 22 Cal. Law Revision Com. Rep. (1992) p. 900, fns. omitted.) (2d) Here, the probate was closed, and it would make no sense to open a subsequent probate for the sole purpose of asserting decedent's cause of action when it has passed to his successor in interest. By allowing Polly Parsons to independently pursue the cause of action she inherited from the deceased, the objective of the Legislature to harmonize the law relating to litigation involving decedents is accomplished. In sum, Polly Parsons has standing to pursue the present action in her capacity as a successor in interest to Gram Parsons.
II
(6a) The Tickner respondents generally demurred to the "Seventeenth Cause of Action" through the "Twenty-Second Cause of Action" on the ground that all of them were time barred by Code of Civil Procedure sections 338, 339, 340, and 343, and the doctrine of laches. They now contend, "Even assuming, however, that the three-year (fraud) limitations period applied to *1525 all six of Appellant's causes of action, the time for bringing those claims nonetheless would have passed more than sixteen years ago, on September 19, 1976 (three years after Gram Parsons' death)." (Italics in original.) In other words, they measure the operative time period from the date of Gram Parsons's death and argue that even if the three-year limitation is applicable, the claim is time barred. Although that analysis is consistent with our view that all of the causes of action are essentially based on claims of fraud, it is defective insofar as it measures the limitation period from the death of Parsons.
Code of Civil Procedure section 366.1 provides that survived causes of action may be commenced before the later of two terms: (1) six months after the person's death, or (2) the limitation period that would have been applicable had the person not died. Here, Gram Parsons died on September 19, 1973, and his probate estate was opened the next day. This action was filed 19 years later. Recognizing the inordinate delay in bringing this action, Polly Parsons has invoked the delayed accrual rule which allows a party to pursue an action that would otherwise be time barred when the injury was not and could not have been reasonably discovered within the operative statute of limitations.
(7) "[Code of Civil Procedure section] 338[,] [subdivision (d)] adds the statement ... `The cause of action ... [is] not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.' Literally interpreted, this language would give the plaintiff an unlimited period to sue if [s]he could establish ignorance of the facts. But the courts have read into the statute a duty to exercise diligence to discover the facts. The rule is that the plaintiff must plead and prove the facts showing: (a) Lack of knowledge. (b) Lack of means of obtaining knowledge (in the exercise of reasonable diligence the facts could not have been discovered at an earlier date). (c) How and when [s]he did actually discover the fraud or mistake. Under this rule constructive and presumed notice or knowledge are equivalent to knowledge. So, when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to [her] investigation (such as public records or corporation books), the statute commences to run." (3 Witkin, Cal. Procedure, supra, Actions, § 454, pp. 484-485.)
(6b) The first amended complaint alleged that the causes of action were not discovered or discoverable until June 1991 when Polly Parsons's lawyer wrote Edward Tickner requesting information and documentation regarding the Wait & See catalog and related matters. In response to this inquiry, the Tickner respondents "continued to represent that written agreements existed *1526 and indicated that they would send copies of the agreements to plaintiff's attorney." No documents were sent as promised and respondent Len Freedman "conceded that no documents or written agreements existed transferring said rights and interest."
(8) "Two common themes run through the cases applying the discovery rule of accrual. First, the rule is applied to types of actions in which it will generally be difficult for plaintiffs to immediately detect or comprehend the breach or the resulting injuries. In some instances, the cause or injuries are actually hidden, as in the case of a subterranean trespass (Oakes v. McCarthy Co. [(1968)] 267 Cal. App.2d [231] at p. 255 [73 Cal. Rptr. 127]), the erasure of video tapes held in the sole custody of the defendant (April Enterprises, Inc. v. KTTV [(1983)] 147 Cal. App.3d [805] at p. 832 [195 Cal. Rptr. 421]), or foreign objects left in a patient's body after surgery (see, e.g., Ashworth v. Memorial Hospital (1988) 206 Cal. App.3d 1046, 1054-1062 ...). Even when the breach and damage are not physically hidden, they may be beyond what the plaintiff could reasonably be expected to comprehend.... [¶] Second, courts have relied on the nature of the relationship between defendant and plaintiff to explain application of the delayed accrual rule. The rule is generally applicable to confidential or fiduciary relationships. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586 ...; see also April Enterprises, Inc. v. KTTV, supra, 147 Cal. App.3d at p. 827.) The fiduciary relationship carries a duty of full disclosure, and application of the discovery rule `prevents the fiduciary from obtaining immunity for an initial breach of duty by a subsequent breach of the obligation of disclosure.' (Neel v. Magana, Olney, Levy, Cathcart & Gelfand [(1971)] 6 Cal.3d [176] at p. 189 [98 Cal. Rptr. 837, 491 P.2d 421].)
"The court in April Enterprises, Inc. v. KTTV, supra, also noted the importance of the relationship between defendant and plaintiff: `In most instances, in fact, the defendant has been in a far superior position to comprehend the act and the injury. And in many, the defendant had reason to believe the plaintiff remained ignorant [s]he had been wronged. Thus, there is an underlying notion that plaintiffs should not suffer where circumstances prevent them from knowing they have been harmed. And often this is accompanied by the corollary notion that defendants should not be allowed to knowingly profit from their injuree's ignorance.' (147 Cal. App.3d at p. 831.)" (Evans v. Eckelman (1990) 216 Cal. App.3d 1609, 1614-1615 [265 Cal. Rptr. 605].)
(6c) The allegations of the first amended complaint and judicial notice of the probate proceeding reveal that the Tickner respondents not only concealed from Gram Parsons's estate, his heirs, and his survivor in interest *1527 the key fact that Gram Parsons had never transferred his catalog of songs to them, but further concealed that fact by falsely representing they were the producers of the catalog, only obligated to distribute specified royalty payments. Given that the Tickner respondents have held themselves out as if they were the producers and have distributed royalty payments in that capacity, it was not unreasonable for either the estate or Polly Parsons to assume they had the right to do so. Obviously, the affirmative conduct of the Tickner respondents in representing themselves as the producers of the Wait & See catalog would induce the belief that they owned the catalog. In the face of the alleged conduct on the part of the Tickner defendants, Polly Parsons has sufficiently pled that she could not have learned of the claims which she now asserts prior to June 1991.[5]
The Tickner respondents argue that because the royalty contracts were inventoried in the estate, Polly Parsons cannot be excused for not having discovered earlier her claim to the Wait & See catalog. They contend that Casualty Ins. Co. v. Rees Investment Co. (1971) 14 Cal. App.3d 716 [92 Cal. Rptr. 857] is on point and supports their position. Close scrutiny of that case demonstrates the fallacy of respondents' position.
There, the appellate court concluded that the party who had alleged a delayed accrual of its fraud claim in regard to a commercial lease had been in possession of both the leased premises and the pertinent business records so that it had been in a position to discover the facts concerning the lease had it exercised reasonable diligence. (Casualty Ins. Co. v. Rees Investment Co., supra, 14 Cal. App.3d at p. 720.)
This pleading deficiency can hardly be applied to this case. Here, Polly Parsons alleged that the Tickner respondents continued their masquerade as producers and owners of the Wait & See catalog. She was not in possession of any "books of the company" or other sources that would have reasonably revealed to her that her father's compositions had not been transferred in accordance with the federal copyright laws. The Tickner respondents have not directed us to any matter in the pleadings or the probate records which could suggest that Polly Parsons had any duty or reason to inquire as to the veracity of their representations. Moreover, their argument that Polly Parsons had continued to receive royalty payments actually undermines their contention that there has been no fraudulent concealment, since their payment of the royalties perpetuated the alleged misrepresentation that they owned the Wait & See catalog.
*1528 Watts v. Crocker-Citizens National Bank (1982) 132 Cal. App.3d 516 [183 Cal. Rptr. 304] is instructive on the issue of what is required in a pleading when the plaintiff alleges concealment in order to avoid the bar of the statute of limitations. There, Crocker was the trustee of undeveloped property and in that capacity operated the Miradero Water System. As trustee of the land and water system, Crocker entered into a letter agreement with Dale, an adjoining landowner, to "install, within six months, a `one-inch water line to supply water'" for Dale's property in exchange for a small parcel that Crocker wanted to settle a boundary dispute. (Id. at p. 520.) A pipeline and water meter were installed at Dale's property. Dale did not check it to determine if water was supplied from the line. On several occasions, Crocker spoke with Dale about the pipeline but failed to inform him that it would not be supplying him with water. Crocker specifically failed to inform Dale about a lawsuit with other landowners which had resulted in a settlement giving those landowners the ownership of the system without any obligation to provide Dale with water. Later, Dale sold his property to Costa who discovered that the pipeline was not supplying any water to the parcel. Costa filed an action against Dale and others for fraud. Dale cross-complained against Crocker for damages for breach of contract or, in the alternative, indemnity. Crocker asserted Dale's claim was time barred. (Code Civ. Proc., § 337.)
The trial court concluded that the contract provided for the installation of a pipeline only, not water. From that premise it concluded that the statute of limitations ran from the date of installation and there was no fraud or mistake and, accordingly, Dale's action was barred by the four-year statute of limitations applicable to written contracts.
The Court of Appeal reversed the trial court's ruling. The appellate court concluded that because Crocker had communicated with Dale but had failed to inform him that it was no longer operating the water system and that the settlement of the litigation with other users had both excluded Dale and relieved Crocker from its obligation to provide water, Dale did not discover the breach until six years after the installation. The Court of Appeal, citing Balfour, Guthrie & Co. v. Hansen (1964) 227 Cal. App.2d 173 [38 Cal. Rptr. 525], noted, "`[f]raudulent concealment of the facts is a good answer to the defense of the statute of limitations' [citation].... [¶] It is immaterial that Dale could have checked the pipeline to see if water was flowing through it and, thus, discover the breach. In Balfour, Guthrie & Co. v. Hansen, supra, 227 Cal. App.2d 173, the court quoted from Vai v. Bank of America (1961) 56 Cal.2d 329, 343 ...: `"`[w]here no duty is imposed by law upon a person to make inquiry, and where under the circumstances "a prudent man" would not be put upon inquiry, the mere fact that means of knowledge are open to *1529 a plaintiff, and he has not availed himself of them, does not debar him from relief when thereafter he shall make actual discovery.' [Citations.]"' (Balfour, Guthrie & Co. v. Hansen, supra, 227 Cal. App.2d 173, 190.)" (Watts v. Crocker-Citizens National Bank, supra, 132 Cal. App.3d at p. 523.)
Here, there was no duty imposed by law or otherwise on Gretchen Parsons or Polly Parsons to verify the representations of the Tickner respondents that they were the producers of the Wait & See catalog. The Tickner respondents can hardly expect relief from their own deceit because neither the administrator and heirs of Gram Parsons's estate nor their lawyers caught them earlier in a lie. There is no reward for being slick, and if Polly Parsons can prove the allegations of the first amended complaint, her claim will not be time barred. The failure to discover the falsity of the Tickner respondents' claim to Parsons's music is as excusable and reasonable as was the failure to discover there was no water in the pipeline in Watts v. Crocker-Citizens National Bank, supra, 132 Cal. App.3d 516.
It should be emphasized that the delayed discovery rule is applicable to all of the theories of recovery pleaded by Polly Parsons. Her first amended complaint labels her causes of action as fraud, breach of fiduciary duty, and conversion. Although the Tickner respondents claim they owed no duty of disclosure to her, the fact-specific allegations of the complaint suggest they did, both as fiduciaries of Gram Parsons and because they could not pass themselves off as the owners of the Wait & See catalog if they had no lawful rights to Gram Parsons's music. Thus, it has been held that "... the date-of-discovery rule is applied to a fiduciary when strict adherence to the date of injury rule would result in unfairness to the plaintiff and would encourage wrongdoers to mislead their fiduciary to delay bringing suit. It is particularly appropriate when the defendant maintains custody and control of a plaintiff's property or interests." (April Enterprises, Inc. v. KTTV (1983) 147 Cal. App.3d 805, 827 [195 Cal. Rptr. 421].)
It follows that if the Tickner respondents had no lawful right to the catalog, their conduct did amount to a misappropriation of Parsons's music so that the income generated from its promotion is subject to a constructive trust for the benefit of Gram Parsons's successor in interest, Polly Parsons. Her claims, although delayed for 19 years, are not time barred. The allegations of the first amended complaint sufficiently show that, prior to June 1991, she did not know and, in the exercise of reasonable diligence, could not have discovered that the Tickner respondents had no lawful right to the Wait & See catalog. Furthermore, the fact that Polly Parsons received and accepted royalty payments does not estop her from pursuing this claim. The Tickner respondents cannot claim they are prejudiced by such conduct *1530 inasmuch as, according to the allegations of the first amended complaint, they were paying Polly Parsons less than that to which she was entitled under the ruse that that was all she was entitled to receive.
The Tickner respondents argue that Polly Parsons may not invoke the delayed discovery rule because her original verified complaint contained no suggestion that defendants made any representation concerning their interest in the Wait & See catalog. They rely on Owens v. Kings Supermarket (1988) 198 Cal. App.3d 379 [243 Cal. Rptr. 627] to support their contention that the allegations of the first amended complaint improperly go beyond her initial allegations to avoid the statute of limitations. Specifically, they claim she cannot rely on the current allegations that the Tickner respondents "continued to conceal" relevant facts from the administrator and Polly Parsons because the allegations vary from her earlier accusatory allegations that she was a minor until 1988, her mother was incapable of handling business transactions, and the estate was overburdened with litigation. The argument fails. The allegations of concealment do not contradict and are not inconsistent with the allegations of the original complaint.
In Owens v. Kings Supermarket, supra, the plaintiff alleged in his original and first amended complaint that the accident occurred on the public street adjacent to the defendant's market. The defendant demurred on the ground that only the city controls public roadways. In his second amended complaint, the plaintiff alleged the accident occurred on the defendant's premises. This obvious sham pleading is wholly different from the situation here. Polly Parsons has supplemented her allegations of her original pleading to explain with particularity why she did not know that the Tickner respondents misrepresented their right to promote and profit from her father's music. An amendment which supplements a pleading with new facts which are neither inconsistent nor contradictory is permissible. Here, the original complaint contains no allegation that the Tickner respondents did not conceal any relevant facts and Polly Parsons is not precluded from alleging concealment when compelled to amend to bring herself within the delayed discovery rule.[6]
DISCUSSION OF GRETCHEN PARSONS'S DEMURRER TO SECOND AMENDED COMPLAINT
The second amended complaint alleged a cause of action against Gretchen Parsons for declaratory relief based on Polly Parsons's claim that the Wait & *1531 See catalog is an after-discovered asset belonging to her. She seeks a determination of her right to own and control the catalog. If Polly Parsons prevails on her claims against the Tickner respondents, she will own the songs in the catalog, thereby dissolving the Wait & See royalty contract and possibly terminating any obligation to pay any more royalties to Gretchen Parsons on that contract. Additionally, Polly Parsons seeks to recover the royalty payments, derived from the Wait & See catalog, received by Gretchen Parsons from the Tickner respondents.
In relevant part, the second amended complaint alleges: "Plaintiff seeks declaratory relief for [sic] the following: [¶] a. That there are no writer's royalties with respect to Wait & See Music; [¶] b. That Wait & See Music was effectively a fraud and therefore no monies should have been paid to Gretchen Parsons; [¶] c. That it is unclear what royalty and publishing contracts were the subject of the inventory and should be clarified; [¶] d. That BMI compositions were not properly inventoried and plaintiff shall receive 100% of the earnings; and [¶] e. Whether or not the inventory list is exhaustive."
Gretchen Parsons demurred solely on the ground that all of the claims were barred by the terms of the executed mutual release which settled all disputes pertaining to the administration of the probate estate. The mutual release provided that each of them "... fully and forever remise, release and discharge the other Party ... of and from any and all claims, suits, causes of action, obligations, debts, costs, expenses, accounts, damages, judgments, losses and liabilities, whether known or unknown ... which each Party hereto has or can have by reason of any matter, cause or thing whatsoever, up to and including the day hereof, relating to or arising out of the administration of the Estate of Gram Parsons. ..." (Italics added.) By its terms, the mutual release does not resolve future disputes arising after December 11, 1985, the date the mutual release was executed.
(9) Probate Code section 11605 provides: "When a court order made under this chapter becomes final, the order binds and is conclusive as to the rights of all interested persons." Thus, if, as here, no appeal is taken from the order of distribution, the order is binding upon all interested persons even if the order is mistaken or incomplete. This principle acts to preserve the finality and conclusiveness of such decrees and to guarantee the integrity and stability of the titles to the property embraced in the decrees. (Estate of Callnon (1969) 70 Cal.2d 150, 160-161 [74 Cal. Rptr. 250, 449 P.2d 186].) The only manner in which such an order can be attacked is through an action based upon a claim of extrinsic fraud. (Universal Land Co. v. All Persons (1959) 172 Cal. App.2d 739, 742 [342 P.2d 958].) "Extrinsic fraud is a broad *1532 concept that `tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.' [Citations.] It `usually arises when a party ... has been "deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting [her] claim or defense." ... [Citations.]'" (In re Marriage of Modnick (1983) 33 Cal.3d 897, 905 [191 Cal. Rptr. 629, 663 P.2d 187]; italics added.) Intrinsic fraud, on the other hand, involves the introduction of perjured testimony or false documents or the concealment or suppression of material evidence in a fully litigated case. (Kachig v. Boothe (1971) 22 Cal. App.3d 626, 634 [99 Cal. Rptr. 393].)
(10) Applying these principles to Polly Parsons's claims against Gretchen Parsons, we conclude the following. The release bars Polly Parsons from pursuing any claim against Gretchen Parsons for negligent administration of the estate (e.g., failure to discover the fraud committed by the Tickner respondents). Furthermore, because Polly Parsons has made no claim of extrinsic fraud against Gretchen Parsons, she may not seek to disgorge from Gretchen Parsons any of the Wait & See Catalog royalties the latter received, because the receipt of those moneys flowed from the order of distribution which has long become final. However, even though the mutual release and final order of distribution bar those claims, they do not apply to issues that arise if Polly Parsons validates her claim to the Wait & See catalog as an after-discovered and uninventoried asset of the estate. That is, if Polly Parsons prevails on her claim to the Wait & See catalog, Gretchen Parsons will predictably contest the termination of future royalty payments. Her right to those future payments is the proper subject of a declaratory relief action.
Although Gretchen Parsons has limited the scope of her demurrer by contending the mutual release is a bar to Polly Parsons's cause of action for declaratory relief, we recognize that she does not thereby waive a general demurrer for failure to state a cause of action. (Carman v. Alvord (1982) 31 Cal.3d 318, 324 [182 Cal. Rptr. 506, 644 P.2d 192].) Accordingly, we have reviewed the second amended complaint to determine if it states a cause of action independently of Gretchen Parsons's specific objection.
Gretchen Parsons notes that the second amended complaint is ambiguous with respect to what royalty contracts are the subject of the declaratory relief cause of action. It is true that the pleading is not a model of clarity, but it is perfectly clear that Polly Parsons is seeking a "determination as [to] whether or not Gretchen Parsons is entitled to any interest in [the] Wait and See compositions or the royalties accruing therefrom and whether Gretchen Parsons should pay back royalties to plaintiff."
*1533 The fact that the claims against Gretchen Parsons depend on Polly Parsons's ability to prove her claims against the Tickner respondents is not controlling. "Future rights may be determined when a declaration of the present and actual controversy is dependent on an adjudication of such future rights. [Citation.]" (Klinker v. Klinker (1955) 132 Cal. App.2d 687, 692-693 [283 P.2d 83].) Here, Polly Parsons is pursuing a claim to establish ownership and control over the Wait & See catalog. As her claim remains to be established, it is a future right to be adjudicated, but it suffices as a premise for a declaration of rights as between Gretchen Parsons and Polly Parsons, both of whom were granted a 50 percent interest in the Wait & See royalty contract.
DISPOSITION
For the foregoing reasons, the orders sustaining the demurrers of respondents herein and the subsequently entered judgments of dismissal are reversed. Appellant shall recover costs on appeal.
Epstein, Acting P.J., and Hastings, J., concurred.
NOTES
[1] "`Personal representative' means executor, administrator, administrator with the will annexed, special administrator, successor personal representative, or a person who performs substantially the same function under the law of another jurisdiction governing the person's status"; "`[g]eneral personal representative' excludes a special administrator unless the special administrator has the powers, duties, and obligations of a general personal representative under Section 8545." (Prob. Code, § 58, subds. (a) & (b).)
[2] Code of Civil Procedure section 377.30 provides: "A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest."
[3] Code of Civil Procedure section 377.10 provides in relevant part: "For the purposes of this chapter, `beneficiary of the decedent's estate' means: [¶] ... [¶] (b) If the decedent died without leaving a will, the sole person or all of the persons who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under Sections 6401 and 6402 of the Probate Code or, if the law of a sister state or foreign nation governs succession to the cause of action or particular item of property, under the law of the sister state or foreign nation."
Code of Civil Procedure section 377.11 provides: "For the purposes of this chapter, `decedent's successor in interest' means the beneficiary of the decedent's estate or other successor in interest who succeeds to a cause of action or to a particular item of the property that is the subject of a cause of action."
[4] In appellant's response to this court's invitation to comment on the applicability of Code of Civil Procedure section 377.10 et seq., she advised that she would comply with section 377.32.
[5] But for the alleged affirmative conduct of the Tickner respondents, we would find Polly Parsons's allegations wanting since she fails to disclose when and why she had a lawyer correspond with respondent Edward Tickner requesting information and documentation regarding the Parsons catalog of music.
[6] In view of our disposition of the appeal based upon application of the delayed discovery rule on the basis of concealment, it is unnecessary to consider the objection that the current allegations that respondents Tickner and Dickson reside outside of California are inconsistent with the allegations of the original complaint. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263250/ | 31 Cal.App.4th 471 (1995)
37 Cal. Rptr.2d 171
ALBERTO ACOSTA, as Co-executor, etc., et al., Plaintiffs and Appellants,
v.
LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Appellant.
Docket No. B070279.
Court of Appeals of California, Second District, Division Seven.
January 10, 1995.
*473 COUNSEL
Hamrick, Garrotto, Briskin & Pene, Katherine B. Pene and Frances K. Prince for Defendant and Appellant.
Sanford M. Gage and Peter I. Bersin for Plaintiffs and Appellants.
*474 OPINION
JOHNSON, J.
Section 831.7 of the Government Code immunizes a public entity from liability for injuries resulting from participation in a "hazardous recreational activity." The issue before us is whether this immunity applies in a suit against a school district by a high school gymnast seriously injured while practicing under the supervision of his coach in the school gymnasium after school, during the off-season. We hold the immunity does not apply under these circumstances.
FACTS AND PROCEEDINGS BELOW
Omar Acosta was a member of the Hamilton High School gymnastics team. One night during the off-season, Omar was working out in the Hamilton gym under the supervision of assistant gymnastics coach Louis Thomas. He was practicing a new maneuver on the high bar called the front catch in which the gymnast swings forward and, at the top of his arc, lets go of the bar, performs a somersault and catches the bar on the way down. While practicing this maneuver Omar missed catching the bar, fell and landed on his neck. He was rendered quadriplegic.[1] By special verdict, a jury found coach Thomas was negligent in supervising Omar's practice and this negligence was a substantial factor in bringing about Omar's injury. The jury found Omar did not assume the risk of his injury. However, the jury's special verdict also found at the time of the accident Omar was engaged in a "hazardous recreational activity" and Coach Thomas was not grossly negligent in causing Omar's injury. Therefore, in accordance with the special verdict, the trial court rendered judgment for the Los Angeles Unified School District (district).
Following entry of judgment, Omar filed motions for a new trial, judgment notwithstanding the verdict and to vacate the judgment and enter a different judgment. These motions rested on two arguments. First, the undisputed facts showed Omar was injured in the course of a school sponsored and supervised activity which, as a matter of law, is not a "recreational" activity within the meaning of Government section 831.7.[2] Second, to the extent there was an issue of fact whether Omar was engaged in a "recreational" activity, the trial court erred in not instructing the jury on the meaning of the term "recreational" in the context of section 831.7 and in not requiring the jury to determine as part of its special verdict whether Omar's gymnastics practice was "recreational" in nature.
*475 The trial court disagreed with the argument section 831.7 is inapplicable to this case as a matter of law. The court agreed, however, a distinction exists between a "recreational" activity and what the court termed a "school directed" activity and that it had failed to properly instruct the jury on this distinction. Based on this ruling the court granted a new trial limited to determining whether Omar's injury resulted from a "school-directed" activity and, if so, Omar's comparative negligence, the amount of damages and apportionment of liability. As to the motions for judgment notwithstanding the verdict and to vacate the judgment, the court ordered judgment be entered consistent with the jury's special verdict as to negligence.
The district appealed from the orders described above. Plaintiff filed a protective cross-appeal from the judgment and appealed from the orders made after judgment to the extent they denied his request for a judgment of liability against the school district.
DISCUSSION
I. Plaintiff, Participating in a School-sponsored Athletic Practice Under the Supervision of School Personnel After Hours During the Off-season, Was Not Engaged in a "Hazardous Recreational Activity" Within the Meaning of Section 831.7.
Section 831.7 provides in relevant part:
"(a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity....
"(b) As used in this section, `hazardous recreational activity' means any recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator.... .
".... .... .... .... .... .... ....
"(c) Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for any of the following:
".... .... .... .... .... .... ....
"(5) An act of gross negligence by a public entity or a public employee which is the proximate cause of the injury."
(1) In some cases the question whether the plaintiff was engaged in a "recreational" activity may be a question of fact for the jury. (Cf. Domingue *476 v. Presley of Southern California (1988) 197 Cal. App.3d 1060, 1065 [243 Cal. Rptr. 312] and Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal. App.3d 1022, 1027 [157 Cal. Rptr. 612] [triable issues of fact whether plaintiffs were using private property for a "recreational purpose" within the meaning of Civ. Code, § 846]. But where, as here, the facts are undisputed, the question whether plaintiff was engaged in a "hazardous recreational activity" is a question of law for the court. (Yarber v. Oakland Unified School Dist. (1992) 4 Cal. App.4th 1516, 1519 [6 Cal. Rptr.2d 437] [participation in adult basketball league was "hazardous recreational activity" as a matter of law].) (2a) In the present case the issue of immunity under section 831.7 should never have gone to the jury because, as a matter of law, "hazardous recreational activities" do not include school-sponsored extracurricular athletic activities under the supervision of school personnel.
Plaintiff's initial argument is that section 831.7 was only intended to immunize public entities from liability to recreational users of public property stemming from a dangerous condition on the property. (See Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 707 [190 Cal. Rptr. 494, 660 P.2d 1168] [holding public entities are not protected by Civ. Code, § 846, which provides property owners generally owe no duty to keep their property safe for recreational use].) Although there is support for this construction in the statute's legislative history, the actual language of section 831.7 is susceptible to broader application. In Decker v. City of Imperial Beach (1989) 209 Cal. App.3d 349, 355 [257 Cal. Rptr. 356] the court held section 831.7 immunized the city from liability for a negligent attempt to rescue a person engaged in a hazardous recreational activity. We need not decide the outer limits of the immunity created by section 831.7 because it is clear from the language of the statute and its legislative history it was not intended to create a new immunity from liability for the negligent supervision of students engaged in school sponsored and supervised extracurricular activities.
For immunity to apply under section 831.7, the injured party must have been engaged in an activity which was both "hazardous" and "recreational." As previously noted, the statute defines a hazardous recreational activity as "any recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator." (§ 831.7, subd. (b).) The statute specifies certain activities as meeting this definition, including archery, trampolining and "body contact sports (i.e. sports in which it is reasonably *477 foreseeable that there will be rough bodily contact with one or more participants)...." (§ 831.7, subd. (b)(3).)[3]
If the term "hazardous recreational activity" is interpreted to include school sponsored and supervised activities, schools would be immune from liability for the negligent supervision of students engaged in virtually every extracurricular sport (e.g., football, basketball, baseball, gymnastics, soccer, wrestling), as well as activities which are often part of a school's physical education program such as archery and trampolining. As we explain below, this would constitute a major revision of California law with respect to school district tort liability.
(3) In California it has been "long established that a school district bears a legal duty to exercise reasonable care in supervising students in its charge and may be held liable for injuries proximately caused by the failure to exercise such care." (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513 [150 Cal. Rptr. 1, 585 P.2d 851].) Our Supreme Court has declared, "The standard of care imposed upon school personnel in carrying out this duty ... is that degree of care `which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.' ... Either a total lack of supervision ... or ineffective supervision ... may constitute a lack of ordinary care on the part of those responsible for student supervision. Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence." (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747 [87 Cal. Rptr. 376, 470 P.2d 360] [citations and footnote omitted.])
This duty does not evaporate the minute classes are dismissed for the day. As the Supreme Court observed in Hartzell v. Connell (1984) 35 Cal.3d 899, 909 [201 Cal. Rptr. 601, 679 P.2d 35], "[i]t can no longer be denied that extracurricular activities constitute an integral component of public education. Such activities are `"generally recognized as a fundamental ingredient of the educational process."'" The court went on to say "`school-sponsored activities, such as sports, ...' though denominated `"extracurricular,"' ... nevertheless form an integral and vital part of the educational program.'" (Id. at p. 910.) In McGrath v. Burkhard (1955) 131 Cal. App.2d 367, 376 [280 P.2d 864], the court upheld a school board's assignment of teachers to supervise extracurricular activities, reasoning such supervision is "an important part of [a teacher's] duties" because of the "great importance" of educating students in principles of justice, fair play and good citizenship.
*478 (2b) More specifically, most states, including California, have held a school district's duty of reasonable supervision applies to school-sponsored extracurricular sports programs. (Leger v. Stockton Unified School Dist. (1988) 202 Cal. App.3d 1448, 1459 [249 Cal. Rptr. 688] [wrestling team practice]; Leahy v. School Bd. of Hernando County (Fla. Dist. Ct. App. 1984) 450 So.2d 883, 885 [spring football practice]; Rutter v. Northeastern Beaver Cty., etc. (1981) 496 Pa. 590 [437 A.2d 1198, 1202] [pre-season football training and practice]; Carabba v. Anacortes School District No. 103 (1967) 72 Wn.2d 939 [435 P.2d 936, 947] [interscholastic wrestling match]; Vendrell v. School District No. 26C, Malheur County (1962) 233 Ore. 1 [376 P.2d 406, 408] [football game]; and see Annot., Tort Liability of Public Schools [etc.] for Accident Occurring During School Athletic Events (1971) 35 A.L.R.3d 725, 734-735.)
A court will not conclude the Legislature "intends to overthrow long-established principles of law unless such intention is made clearly to appear either by express declaration or by necessary implication." (County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 644 [122 P.2d 526].) Nowhere in section 831.7 or its legislative history is there an express declaration the Legislature intended to immunize school districts from liability resulting from negligent supervision of extracurricular activities in general or athletics in particular. Nor is such immunity conferred by necessary implication. Under section 831.7 a school district would not be liable for purely "recreational" activities which happen to be conducted on school property. (Yarber v. Oakland Unified School Dist., supra, 4 Cal. App.4th at p. 1519 [school district immune from liability under § 831.7 for injury to player in adult community basketball league using gym after school hours].) However, we believe a clear distinction exists between allowing the public to use school facilities after hours, on weekends or during vacations and school-sponsored athletic practices under the supervision of school personnel after school or during the off-season. The Legislature itself has recognized the existence of "school-sponsored interscholastic athletic programs" and that these programs often occur after regular school hours.[4] Furthermore, an activity is not "recreational" merely because it is voluntary. Participation in all interscholastic athletics is "voluntary."[5]
The district strenuously argues the activity in which Omar was injured was not a school-sponsored gymnastics team practice. Rather, it was part of *479 a community recreation program open to everyone. While it is true Hamilton High School alumni and members of the community would sometimes appear at the evening gymnastics practices, the evidence showed Coach Thomas ran structured training and drills for members of the gymnastics team. Thomas testified when he was overseeing these gymnastics practices he was carrying out essentially the same kind of duties the head coach carried out when he was running the practices. Omar had been a member of the Hamilton High School gymnastics team for the past two years and intended to compete in the coming season. At the end of the previous season Omar and the head gymnastics coach discussed the maneuvers Omar would work on during the off-season, including the front catch. On the night of the accident, Omar was practicing in the Hamilton High School gym on equipment provided by the school under the supervision of a Hamilton gymnastics coach who testified it was he who suggested Omar learn the front catch maneuver. The evidence leaves no doubt Omar was engaged in a school sponsored and supervised activity at the time of his injury.[6]
For the reasons set forth above, the immunity provided by section 831.7 is not applicable to this case. The trial court should have granted plaintiff's motion for judgment notwithstanding the verdict as to liability and ordered a new trial on damages, including plaintiff's comparative negligence if any, and apportionment of liability.[7]
*480 II. The School District Has Waived Any Errors Pertaining to the Issue of Negligence.
(4) One issue remains. The district contends certain errors occurred at trial affecting the jury's finding of negligence but the trial court precluded the district from presenting argument on these errors following trial.
The record does not support this contention. The district filed written opposition to plaintiff's posttrial motions and orally argued against the motions at the hearing. At no time in the course of these proceedings did the district raise any errors affecting the jury's finding of negligence. It was only after the trial court announced its ruling on plaintiff's motions that the district, for the first time, raised unspecified "errors in law" with respect to the finding of negligence and requested "an opportunity to address those issues." The trial court denied the request as untimely and pointed out the district could raise these alleged errors of law on the appeal.
The trial court's ruling was correct. It was far too late for the district to raise errors of law for the first time at oral argument on plaintiff's motions, especially since the court's jurisdiction to rule on the new trial motion was about to expire. (Cf. Pelletier v. Eisenberg (1986) 177 Cal. App.3d 558, 562-563 [223 Cal. Rptr. 84].) The district could have raised these errors on appeal but did not do so. Thus, we deem the errors waived.
DISPOSITION
The order granting judgment notwithstanding the verdict is reversed and the trial court is directed to enter a new and different order granting judgment notwithstanding the verdict in favor of plaintiff and against defendant on the issue of liability. The order granting a new trial is modified to provide the new trial shall be limited to plaintiff's comparative negligence, the amount of damages and apportionment of liability and is affirmed as modified. The order vacating the judgment and entering a different judgment is reversed. Plaintiff is awarded costs on appeal.
Lillie, P.J., concurred.
WOODS (Fred), J., Dissenting.
It is comprehendible how the tragic but "freak" accident in this instance has led the majority to stretch to conclude as a matter of law that Government Code section 831.7 yields no liability *481 immunity to the school district in this case. Most certainly, resultant quadriplegia and eventual death to this young high school gymnast would evoke sympathy in anyone but the completely insensitive. Remembering, however, the seasoned precaution that "hard facts make bad law," I am constrained to observe that the interpretation given to Government Code section 831.7 by the majority, depriving the school district of liability immunity as a matter of law, in this case of first impression, is oversimplified, does not fully "track" the facts of this case, and erroneously deprives the school district of a trial on the factual dispute of whether the activities of the plaintiff were school sponsored.
In my view, the reasoning of the trial judge in granting a motion for new trial limited, among other specifically defined issues, to a determination of whether the plaintiff's activities were school sponsored[1] is sound. The trial judge recognized a dichotomy which is seriously underplayed in the majority opinion, i.e., whether the activity was "hazardous and recreational" on the one hand, giving rise to Government Code section 831.7 liability immunity or "school sponsored" on the other hand, resulting in no liability immunity.
The trial judge in ordering a limited new trial, recognized that he had failed to adequately instruct the jury by omitting instructions on the critical question of whether plaintiff's activities were school sponsored. I agree with the trial judge that such omissions was error.
The following facts gleaned from the record and considered in conjunction with the factual statement contained in the majority opinion lend merit to the ruling of the trial judge:
The Los Angeles Unified School District, and in particular, Hamilton High School, since 1988 has opened its campus to the community for recreational purposes after school hours, not on a volunteer basis, but in accordance with the mandates of Education Code sections 10900 through 10914.5.
The gymnasium in question was also opened to the community, but only if a qualified person was there to oversee its use.
No fee was charged for the use of the gymnasium.
The injury occurred in the evening.
*482 The injury occurred during the off-season for gymnastics.
The workout was not required.
Other students and general community members were present and using the equipment the evening of the accident.
Acosta, during the off-season, worked out at other places besides defendant's school.
Students who wanted to improve their gymnastics skills usually worked out during the off-season.
Lewis Thomas, a firefighter and experienced gymnast, volunteered his time to work out with individuals interested in gymnastics.
Lewis Thomas volunteered his time at Hamilton High School and other locations.
Lewis Thomas had been requested to volunteer his time by one David Lertzman, one of the coaches at Hamilton High School.
Lewis Thomas was present at the time of the incident.
It is my opinion that the above facts give rise to a factual dispute which requires resolution by the trier of fact, and it is error for the majority to decide the issue as one of pure law.
I do not take issue with the reasoning of the majority that Government Code section 831.7 does not result in immunity to an entity for school-sponsored "extra-curricular" activities. The decisions cited by the majority are sound and compelling. I depart from the majority opinion in its result of deciding the appeal as a matter of law when confronted with facts evoking profound sympathy. This case is not a case to be decided as a matter of law, but a case, as the trial judge wisely discerned, to be decided by the jury as the trier of fact once proper instructions are given.
Accordingly, I would affirm the judgment of the trial court in its entirety.
A petition for a rehearing was denied February 2, 1995. Woods, J., was of the opinion that the petition should be granted. The petition of appellant Los Angeles Unified School District for review by the Supreme Court was denied April 13, 1995. Lucas C.J., and Mosk, J., were of the opinion that the petition should be granted.
NOTES
[1] Omar Acosta died during the pendency of this appeal. His estate substituted into the action as plaintiff.
[2] Unless otherwise indicated, all future references are to the Government Code.
[3] Although gymnastics is not specifically mentioned in the statute, we take judicial notice of the fact gymnastics, especially a front catch on the high bar, is a "hazardous" activity as defined by section 831.7, subdivision (b).
[4] Education Code section 51242 provides, "[A] school district may exempt any four-year or senior high school pupil from attending courses of physical education, if the pupil is engaged in a regular school-sponsored interscholastic athletic program carried on wholly or partially after regular hours."
[5] Coach Thomas testified that although there was no "requirement" members of the gymnastics team practice in the summer or the off-season, "[i]f you want to get better, you need to spend time in the gym.... [I]t's something you have to do year-round. You have to keep practicing. You have to keep doing it. There is no down time."
We also note other states imposing a duty to supervise interscholastic athletics have not differentiated between practices held during the season and practices held off-season. (See, e.g., Leahy v. School Bd. of Hernando County, supra, 450 So.2d 883 and Rutter v. Northeastern Beaver Cty., etc., supra, 437 A.2d 1198 [both involving preseason training and practice].)
[6] Although the dissent contends a factual dispute exists as to whether Omar's activities were school-sponsored it fails to identify any fact which is in dispute. None of the facts cited by the dissent were controverted at trial nor were any of the facts on which we have relied. The dissent may be suggesting it should be left to the jury to draw an inference from the facts as to whether Omar's activities were school sponsored. However, as held in Yarber, supra, where there is only one reasonable inference to be drawn from the facts the issue of immunity under section 831.7 is a question of law for this court. (4 Cal. App.4th at p. 1519.) The undisputed facts in this case lead to the inescapable conclusion Omar was participating in a school-sponsored activity.
[7] The trial court's order under Code of Civil Procedure section 663 vacating the judgment and entering a different judgment must be reversed on procedural grounds. This statute provides a remedy when the trial court draws an incorrect legal conclusion or renders an erroneous judgment upon the facts as found by the court or as found by the jury in a special verdict. (Code Civ. Proc. § 663, subds. 1, 2; Jones v. Clover (1937) 24 Cal. App.2d 210, 211 [74 P.2d 517].) Thus, where the jury has returned a special verdict a motion may be made to correct "[a] judgment or decree not consistent with or not supported by the special verdict." (Code Civ. Proc. § 663, subd. 2.) Here, however, the trial court's judgment for defendant was consistent with and fully supported by the jury's special verdict which found plaintiff was engaged in a hazardous recreational activity at the time of the accident. The special verdict itself cannot be attacked under Code of Civil Procedure section 663. (See Knapp v. City of Newport Beach (1960) 186 Cal. App.2d 669, 682 [9 Cal. Rptr. 90].) Instead, the remedy is a motion for new trial. (Ibid.)
[1] The trial judge used the term "directed" instead of the term "sponsored." The term "sponsored" is more appropriate since that is the term used by the California Supreme Court in Hartzell v. Connell (1984) 35 Cal.3d 899 [201 Cal. Rptr. 601, 679 P.2d 35], as cited in the majority opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2319618/ | 31 A.3d 794 (2011)
302 Conn. 772
Donna YEAGER
v.
Maria ALVAREZ et al.
No. 18513.
Supreme Court of Connecticut.
Argued September 8, 2011.
Decided November 22, 2011.
*795 Wesley W. Horton, with whom were Karen L. Dowd, Hartford, and, on the brief, Michael D'Amico, Watertown, and Brendon P. Levesque, Hartford, for the appellant (plaintiff).
Richard F. Wareing, Hartford, for the appellees (defendants).
William F. Gallagher, New Haven, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
Jack G. Steigelfest, Hartford, and Claudia Baio, Rocky Hill, filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.
ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN and HARPER, Js.
HARPER, J.
This appeal requires us to determine whether the trial court properly struck from the record as a sanction for a discovery violation an offer of compromise that had not been accepted within the statutory period under General Statutes § 52-192a. The plaintiff, Donna Yeager,[1] appeals[2] from the judgment of the trial court, challenging its decisions granting the pretrial motion of the defendants, Maria Alvarez and Benito Alvarez,[3] to strike the offer of compromise and denying the plaintiff's posttrial motion for interest after the jury returned a verdict in her favor in an amount exceeding the offer of compromise. The plaintiff claims that the trial court improperly contravened the mandatory imposition of interest under § 52-192a and that, even if the court had authority to strike the offer, such a sanction was improper in this case. We hold that the trial court's striking of the offer of compromise was within the scope of its judicial authority but that doing so in this case was an abuse of discretion. We therefore reverse in part the judgment of the trial court.
The record reveals the following procedural history and uncontested facts. On September 7, 2006, Maria Alvarez, driving a vehicle owned by Benito Alvarez' business, struck the plaintiff's vehicle from behind. The plaintiff filed a complaint on April 13, 2007, alleging that she had sustained serious and permanent injuries as a result of the defendants' negligence and that these injuries, principally to her back, *796 had resulted in significant and potentially ongoing medical expenses.
During pretrial litigation, the defendants posed a series of interrogatories; of particular relevance to this appeal are interrogatories number six and seventeen. Interrogatory number six inquired: "When and from whom did you last receive any medical attention for injuries alleged to have been sustained as a result of the incident alleged in your complaint?" Interrogatory number seventeen asked the plaintiff to "[l]ist each item of expense which you claim to have incurred as a result of the incident alleged in your complaint, the amount thereof, and state the name and address of the person or organization to whom each item has been paid or is payable."
On August 8, 2007, the plaintiff responded to the interrogatories, providing the following answer to interrogatory number six: "Treatment was last received from Dr. [Abraham] Mintz on July 18, 2007." Accompanying her interrogatory responses, the plaintiff supplied, inter alia, medical treatment records, including a report from Mintz, a neurosurgeon, dated March 5, 2007, indicating that, "[a]t this point, I recommend that [the plaintiff] undergoes a lumbar epidural steroid injection, if this is not helpful, then she will be a candidate for plasma disc decompression [preceded] by discography."
On August 29, 2007, the plaintiff underwent two consecutive surgeries to her back, a discography performed by Rahul Anand, a physician trained in anesthesiology and pain medicine, and a plasma disc decompression performed by Mintz. In September and October, 2007, and September, 2008, the plaintiff submitted supplemental discovery materials. At none of these points did the plaintiff update her response to interrogatory number six to account for the August 29, 2007 surgeries. The plaintiff's updates did contain, however, the following information relating to the surgery. A November 13, 2006 report by Robert Kennon, an orthopedic surgeon who was treating the plaintiff for knee and back pain, indicated that "I really do not believe that [the plaintiff] has a problem with her neck or back that is amenable to any treatment that I can provide," and he recommended that the plaintiff seek chiropractic treatment and a second opinion from another orthopedic surgeon. A December 27, 2006 consultation report from Jarob Mushaweh, a neurosurgeon, similarly concluded that "her condition is not amenable to surgical management."[4] A July 18, 2007 report by Mintz, following up on his earlier report presenting surgery as a potential future option, indicated that "I explained to [the plaintiff that] she is a candidate for plasma disc decompression in her lumbar spine preceded by discography. She wants to proceed with both and arrangements will be made for them."
An updated list of expenses, submitted in response to interrogatory number seventeen, included $6365 owed to Anand for services performed on August 29, 2007, and $29,898 owed to Mintz for services performed from January 19, 2007, to October 5, 2007. Included with this updated answer was an itemized bill from Mintz containing two entries dated August 29, 2007, one for $19,800 and the other for $7500. A report from Anand dated August 29, 2007, described a "provocative lumbar discography" he had performed on the plaintiff. A September 12, 2007 letter from Mintz, on which Anand was copied, indicated that the plaintiff "states that she *797 had a terrible time after the surgery with a lot of pain in her low back, but is slowly getting better."
On December 3, 2007, the plaintiff submitted an offer of compromise to the defendants pursuant to § 52-192a, proposing to settle the case for $300,000. The defendants did not accept the offer during the ensuing thirty day period provided for by § 52-192a (a).
On February 22, 2008, the plaintiff disclosed a recently received report from Mintz, which detailed the disc decompression surgery he had performed on August 29, 2007. On October 2, 2008, the defendants filed a motion requesting an extension of time to accept the plaintiff's December 3, 2007 offer of compromise or, alternatively, that the offer be stricken from the record because the plaintiff had failed to meet her continuing duty of disclosure under Practice Book § 13-15 and had not disclosed the surgery performed by Mintz until after the time for accepting the offer of compromise had expired.
The trial court heard oral argument on the motion, during which the defendants argued, inter alia, that the plaintiff had received conflicting recommendations about the appropriateness of surgery, that Mintz' recommendation of surgery was not clear evidence that a surgery actually occurred and that they had interpreted Mintz' September 12, 2007 letter as referring to the surgery performed by Anand, not by Mintz. The defendants' counsel acknowledged, however, that he had failed to notice the plaintiff's October disclosure of Mintz' bill and disavowed any claim that the plaintiff had acted in bad faith.[5] The trial court found that a reader would construe Mintz' September 12, 2007 letter as referring to the surgery performed by Anand but that, "based on [Mintz'] bill, if someone looked at the bill they would have asked what this bill was for [August 29], 2007." Ultimately, the trial court concluded that, "based on a bit of conflicting information and based on the fact that there was no direct information given that . . . Mintz had performed the surgery on [August 29, 2007]," the defendants' motion should be granted with respect to their alternate ground for relief, and it struck the plaintiff's offer of compromise.
The jury returned a verdict in favor of the plaintiff and awarded her $1,380,240 in damages. The court then denied the plaintiff's motion for $238,082.04 in interest retroactively accrued on the award, noting that "no valid offer of compromise exists in this file." This appeal followed.
We begin by considering the plaintiff's claim that the trial court lacked the authority to strike an otherwise valid offer of compromise from the case file. The scope of judicial authority is a matter of law over which we exercise plenary review. Burton v. Mottolese, 267 Conn. 1, 25, 835 A.2d 998 (2003), cert. denied, 541 U.S. 1073, 124 S.Ct. 2422, 158 L.Ed.2d 983 *798 (2004). To the extent that this inquiry involves examining § 52-192a and provisions of the rules of practice, it presents an issue of statutory interpretation over which we likewise exercise plenary review. Mayfield v. Goshen Volunteer Fire Co., 301 Conn. 739, 744, 22 A.3d 1251 (2011).
The trial court's authority to impose sanctions derives from the court's inherent powers. It is long established that as a consequence of "the judiciary's constitutional power and independence . . . courts have an inherent power, independent of statutory authorization, to prescribe rules to regulate their proceedings and facilitate the administration of justice as they deem necessary." State v. Clemente, 166 Conn. 501, 514, 353 A.2d 723 (1974). This rule-making authority, moreover, accords with the legislature's provision that the Superior Court "may declare rights and other legal relations"; General Statutes § 52-29(a); in the course of any action or proceeding and also "may make such orders and rules as they may deem necessary or advisable to carry into effect the provisions of this section." General Statutes § 52-29(b).
Exercising this rule-making authority, the judges of the Superior Court have adopted rules of practice, which explicitly authorize judges to impose sanctions in certain situations. Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 10, 776 A.2d 1115 (2001). Practice Book § 13-14(a) provides in relevant part that if a party has failed substantially to comply with a discovery order, "the judicial authority may, on motion, make such order as the ends of justice require." The rule further provides that "[s]uch orders may include the following: (1) The entry of nonsuit or default against the party failing to comply . . . (5) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal."[6] Practice Book § 13-14(b).
These rules, moreover, do not necessarily demarcate the outer limits of the trial court's inherent powers. We have long recognized that, even "apart from a specific rule of practice authorizing a sanction, the trial court has the inherent power to provide for the imposition of reasonable sanctions, to compel the observance of its *799 rules." (Internal quotation marks omitted.) Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. at 9, 776 A.2d 1115; see also Maris v. McGrath, 269 Conn. 834, 844, 850 A.2d 133 (2004) ("[s]ubject to certain limitations, a trial court in this state has the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated" [internal quotation marks omitted]).
We hold that the Superior Court's rule-making and sanctioning authority encompasses the power to strike an offer of compromise from the record as a penalty for violation of a discovery order. This sanction is not specifically mentioned in Practice Book § 13-14, but it falls well within the ambit of judicial power contemplated by both the court's inherent authority and the rules of practice. Significantly, the Practice Book, in § 13-14(a) authorizes a trial court to penalize discovery violations by entering orders "as the ends of justice require." In fact, § 13-14(b) contains sanctions even more severe than those imposed in this matter. These severe sanctions, which may strip a party of all prospect of prevailing, logically encompass a host of lesser penalties. Such milder sanctions may include orders that reduce a party's likelihood of success at trial; § 13-14(b)(4), for example, allows a trial court to sanction a party by precluding the introduction of potentially dispositive evidence. Likewise, a sanction may properly diminish the financial gains from litigation, as in the imposition of motion costs and fees under § 13-14(b)(2).
Similarly, if a trial court may impose a blanket judgment of nonsuit upon an otherwise valid action under Practice Book § 13-14(b)(1), we see no reason why that court may not also nullify particular actions by parties in the course of litigation. The rules of practice, in keeping with the court's authority and duty to "impose reasonable bounds and order on discovery"; (internal quotation marks omitted) Mulrooney v. Wambolt, 215 Conn. 211, 222, 575 A.2d 996 (1990); have called upon judges to employ discovery sanctions "as the ends of justice require." Practice Book § 13-14(a). We cannot say that this broad mandate may never permit a trial court to strike an offer of compromise from the record.
The plaintiff suggests that notwithstanding these considerations, the legislature has foreclosed the judicial remedy of striking the offer of compromise by mandating interest when the conditions set forth under § 52-192a are satisfied, which they were in the present case. We disagree.
The plaintiff is correct that after trial, the statute directs the trial court to examine the record and, if the record reveals that the statutory conditions for offer of compromise interest are met, to award interest. See General Statutes § 52-192a (c) ("After trial the court shall examine the record to determine whether the plaintiff made an offer of compromise which the defendant failed to accept. If the court ascertains from the record that the plaintiff has recovered an amount equal to or greater than the sum certain specified in the plaintiff's offer of compromise, the court shall add to the amount so recovered eight per cent annual interest on said amount. . . ."). The trial court's function in this process is nondiscretionary. As we previously have noted, "[t]he statutory requirement of an examination of `the record' makes it clear that the legislature intended to give the court a ministerial task"; Connecticut Light & Power Co. v. Gilmore, 289 Conn. 88, 135, 956 A.2d 1145 (2008); rather than an adjudicative one. DiLieto *800 v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 153, 998 A.2d 730 (2010) ("the application of § 52-192a does not depend on an analysis of the underlying circumstances of the case or a determination of the facts" [internal quotation marks omitted]). The trial court's role is "ministerial," however, only with respect to the limited task of considering a motion for interest pursuant to § 52-192a. In the absence of a clear legislative indication to the contrary, we do not read § 52-192a as intruding upon the trial court's traditional broad authority to oversee the process of litigation. See State v. Leak, 297 Conn. 524, 538, 998 A.2d 1182 (2010) ("[i]n determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope" [internal quotation marks omitted]). The court's authority properly encompasses the power and obligation to play a role in determining the scope ofand when appropriate to strike items fromthe trial record prior to the motion for interest. Accordingly, in the present case there was no offer of compromise in the record for the trial court to consider and hence no conflict with the terms of § 52-192a.[7]
The trial court's authority to employ such a sanction is, moreover, consistent with the public policy goals expressed by § 52-192a. As we previously have observed, "[t]he purpose of § 52-192a is to encourage pretrial settlements and, consequently, to conserve judicial resources. . . . [T]he strong public policy favoring the pretrial resolution of disputes . . . is substantially furthered by encouraging defendants to accept reasonable offers of judgment." (Internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 297 Conn. at 153, 998 A.2d 730. The statute advances this policy not only by threatening defendants with interest penalties, but also by requiring plaintiffs to file offers of compromise "not earlier than one hundred eighty days after service of process is made upon the defendant.. . ." General Statutes § 52-192a (a). This rule helps to ensure that defendants have sufficient opportunity to gather the information needed to make a reasoned decision whether to accept a settlement offer.[8] If a plaintiff deprives a defendant of material information sought through the discovery process, the benefits of the statutory waiting period vanish: based on a distorted view of the case arising from limited information or misinformation, the defendant may reject a reasonable offer of *801 compromise or accept an unduly high offer. By striking offers of compromise, where the facts so warrant, the trial court can both enforce compliance with discovery obligations and advance the policy goal expressed in § 52-192a by facilitating reasonable settlement of litigation.
Having concluded that as a matter of formal authority the trial court may sanction discovery violations by striking from the record an otherwise valid offer of compromise, we turn now to the question of whether the trial court properly imposed such a penalty in this case. Traditionally, we considered the imposition of discovery sanctions as a question of proportionality reviewed for an abuse of judicial discretion. Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. at 15, 776 A.2d 1115. We recognized in Millbrook Owners Assn., Inc., however, that "the broad abuse of discretion standard . . . is inaccurate, because it masks several different questions that in fact are involved in the question of when a court is justified in imposing such sanctions." Id., at 17, 776 A.2d 1115. The more nuanced analysis we adopted to cure this inaccuracy calls for a three-pronged inquiry: "First, the order to be complied with must be reasonably clear.. . . This requirement poses a legal question that we will review do novo.
"Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review.
"Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion." Id., at 17-18, 776 A.2d 1115.
The first of the inquiries in that casethe clarity of the underlying discovery orderis not at issue. The continuing duty to make discovery disclosures, upon which the trial court based its ruling, is clearly set forth in Practice Book § 13-15. The plaintiff, moreover, has not contested the fact that she had an underlying disclosure obligation that triggered the continuing duty under § 13-15, nor has she suggested that she was uncertain as to the fact or nature of her obligations. She has claimed instead that she did substantially comply with those obligations, and accordingly we treat the issue of clarity as conceded in this case.
We note, however, that although in their briefs and argument before this court the defendants have identified interrogatory number six as the specificand apparently the singlesource of the plaintiff's unmet discovery obligation, they never identified this request before the trial court as the basis of the plaintiff's duty to disclose, nor did that court make a specific finding regarding the source of the plaintiff's disclosure obligation. An examination of the information requested in interrogatory number six reveals a narrower disclosure duty than the one suggested by the defendants' claim. The defendants contend that the plaintiff failed to disclose the surgery performed by Mintz, but interrogatory number six only required the plaintiff to indicate when and from whom she last received treatment, which would appear to have required her simply to provide a name and date, not the nature of the treatment. The potential for a discovery violation is createdand therefore also limitedby the interrogatory's formulation, and the severity of the breach cannot be gauged without reference to the underlying duty. The trial court should therefore have required the defendants to specifically identify the plaintiff's discovery obligations in order properly to determine the significance of any breach and the appropriate *802 sanction. Nonetheless, because the plaintiff never contested that she had a duty to disclose the surgery performed by Mintz, we consider the trial court's sanction assuming that interrogatory number six required such information.
Under the second prong of Millbrook Owners Assn., Inc., we next look to the record to determine whether the discovery order was violated. For purposes of this appeal, we assume, without deciding, that the trial court properly found that the plaintiff committed a discovery violation by failing to update her answer to interrogatory number six to include the August, 2007 surgery performed by Mintz.[9]
This brings us to the third prong of Millbrook Owners Assn., Inc., under which we weigh the proportionality of the sanction to the violation using the traditional abuse of discretion standard. We are mindful that in the context of discovery sanctions, "great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. . . . The determinative question for an appellate court is not whether it would have imposed a similar sanction but whether the trial court could reasonably conclude as it did given the facts presented. Never will the case on appeal look as it does to a [trial court] . . . faced with the need to impose reasonable bounds and order on discovery." (Citations omitted; internal quotation marks omitted.) Mulrooney v. Wambolt, supra, 215 Conn. at 222, 575 A.2d 996.
In reviewing the proportionality of the trial court's sanction, we focus our analysis on the plaintiff's violation of her continuing duty to disclose under Practice Book § 13-15. See Usowski v. Jacobson, 267 Conn. 73, 93, 836 A.2d 1167 (2003). Our analysis of the plaintiff's violation is guided in turn by the factors we previously have employed when reviewing the reasonableness of a trial court's imposition of sanctions: "(1) the cause of the deponent's failure to respond to the posed questions, that is, whether it is due to inability rather than the willfulness, bad faith or fault of the deponent . . . (2) the degree of prejudice suffered by the opposing party, which in turn may depend on the importance of the information requested to that party's case; and (3) which of the available sanctions would, under the particular circumstances, be an appropriate response to the disobedient party's conduct." (Citation omitted.) Pavlinko v. Yale-New Haven Hospital, 192 Conn. 138, 144, 470 A.2d 246 (1984). Here, neither these factors nor the overarching principle of reasonable proportionality that they represent support the trial court's decision to strike the offer of compromise from the record.
There is no finding of intentional withholding of information or bad faith on the part of the plaintiff, and both at oral argument before the trial court and on appeal the defendants' counsel explicitly conceded that the plaintiff's failure to update her response to interrogatory number six was not deliberate or intended to subvert the discovery process. Compare, e.g., Briggs v. McWeeny, 260 Conn. 296, 336, 796 A.2d 516 (2002) ("[T]he trial court found that the plaintiff had attempted to alter, destroy or conceal [the engineering] report . . . and that she had failed to disclose the report pursuant to her continuing *803 duty to disclose. . . . In these circumstances, in which the misconduct involved the plaintiff's attempt to subvert the discovery process, we do not believe that it was unreasonable for the trial court to have disqualified the plaintiff.").
The trial court also made no finding that the defendants had suffered actual prejudice because of the plaintiff's failure to meet her continuing disclosure obligations. Indeed, the defendants never articulated any concrete source of prejudice, although their request for an extension of time implied a claim that they would have accepted the offer of compromise within the statutory period for acceptance had the surgery by Mintz been disclosed properly. In light of the information that the defendants did possess during the statutory acceptance period, this claim is unpersuasive. The information at issue related to the amount of damages, not liability. The plaintiff provided the defendants with regularly updated accounts of the amount of medical expenses incurred, the dates on which those expenses accrued and the names of the relevant medical service providers. Thus, the defendants could at the very least have readily ascertained the scope, magnitude and duration of the treatment costs incurred by the plaintiff. Wisely, they have not attempted to claim otherwise. Nor have the defendants explained what effect notice of the specific procedure of plasma disc decompression surgery, rather than generic notice of the expense the surgery entailed, might have had on their decision whether to accept the offer of compromise.
Even if the nature of the surgery performed by Mintz were significant aside from its cost, the defendants' suggestion that they could not have readily deduced that Mintz performed a plasma disc decompression is belied by the information disclosed to them. The trial court found that there was "a bit of conflicting information and . . . there was no direct information given that . . . Mintz had performed the surgery"; (emphasis added); but the court properly did not find that the defendants lacked sufficient indirect information to conclude that surgery had occurred. Had the defendants actually reviewed all of the information that the plaintiff provided to them,[10] the only reasonable conclusion that they could have drawn was that Mintz had performed surgery on the plaintiff. Mintz' letter of July 18, 2007, stated that the plaintiff "is a candidate for plasma disc decompression in her lumbar spine preceded by discography. She wants to proceed with both and arrangements will be made for them."[11] (Emphasis added.) The defendants concede that they were aware that, on August 29, 2007, Anand performed a discography on the plaintiff. Mintz' itemized billing statement contained two entries dated August 29, 2007, one for $19,800 and the other for $7500, amounts undoubtedly too high for consultations or nonsurgical procedures. The defendants offered no explanation for what they thought these expenses might represent, other than a plasma disc decompression, the surgery that they knew was scheduled to be performed, by Mintz, following a discography, which they knew occurred on the same day that Mintz charged the plaintiff more than $27,000. Providing further support for the conclusion *804 that the only possible prejudice suffered by the defendants can be attributed to their own failure to read the discovery materials they requested, the defendants waited more than seven months after the plaintiff unambiguously disclosed Mintz' postoperative report in February, 2008, before filing the motion at issue.
Turning finally to the general appropriateness of the sanction in the context of this case, we bear in mind that "[t]he primary purpose of a sanction for violation of a discovery order is to ensure that the defendant's rights are protected, not to exact punishment on the [other party] for its allegedly improper conduct." (Internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 186, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S.Ct. 478, 151 L.Ed.2d 392 (2001). In contrast, an interest award under § 52-192a is "admittedly punitive in nature," and it is this "punitive aspect of [§ 52-192a] that effectuates the underlying purpose of the statute," namely, to advance "[t]he strong public policy favoring the pretrial resolution of disputes. . . ." (Internal quotation marks omitted.) DiLieto v. County Obstetrics & Gynecology Group, P.C., supra, 297 Conn. at 153, 998 A.2d 730. Given our disavowal of punishment of discovery violators as an end in itself and the countervailing strong public policy behind the awarding of interest on offers of compromise, we see nothing in the particular circumstances of this case that warrants imposing the potentially severe sanction of striking an offer of compromise in the absence of a finding of bad faith or significant prejudice.[12] While we hold that it is within the authority of the trial court to strike offers of compromise from the record, we caution that this serious sanction is not to be employed lightly and was an abuse of discretion in this case.
The judgment is reversed in part as to the decisions granting the defendants' motion to strike the offer of compromise and denying the plaintiff's motion for offer of compromise interest, and the case is remanded with direction to grant the plaintiff's motion; the judgment is affirmed in all other respects.
In this opinion the other justices concurred.
NOTES
[1] Priority Care, Inc., the plaintiff's employer, joined the litigation as an intervening plaintiff but is not a party in this appeal.
[2] The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1.
[3] The plaintiff named Benny's Used Cars and/or Benny's Auto Repair as entities through which Benito Alvarez does business and named those entities separately as defendants. For purposes of convenience, we refer herein to Maria Alvarez and Benito Alvarez as the defendants.
[4] The record does not make clear precisely when this report was disclosed, but the defendants' reliance on the report at oral argument before the trial court and the report's admission into evidence at trial indicate that it was timely disclosed.
[5] The defendants' counsel stated: "I think it's still a question mark we could have determined something besides the discograph you've heard, but I don't believe that's the case other than I will admit, Your Honor, that we did obtain billing for $27,000 for . . . Mintz on August 29, 2007. We hadwewe got that. I missed that, Your Honor. I missed that, that's-that's my fault." In response to argument by the plaintiff's counsel that the plaintiff had disclosed Mintz' report immediately after receiving it, the defendants' counsel stated: "And I am notjust to be clear, Your HonorI'm not suggestI'm not here arguing that [plaintiff's counsel] hid information from us in terms of that report." This concession marked a shift from the position that the defendants had adopted in an October 2, 2008 memorandum accompanying their motion regarding the offer of compromise, in which they had asserted that "the plaintiff hid from the defendants the fact that she had undergone surgery for over five months. . . ."
[6] The complete text of Practice Book § 13-14 provides: "(a) If any party has failed to answer interrogatories or to answer them fairly, or has intentionally answered them falsely or in a manner calculated to mislead, or has failed to respond to requests for production or for disclosure of the existence and contents of an insurance policy or the limits thereof, or has failed to submit to a physical or mental examination, or has failed to comply with a discovery order made pursuant to Section 13-13, or has failed to comply with the provisions of Section 13-15, or has failed to appear and testify at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Sections 13-6 through 13-11, the judicial authority may, on motion, make such order as the ends of justice require.
"(b) Such orders may include the following:
"(1) The entry of a nonsuit or default against the party failing to comply;
"(2) The award to the discovering party of the costs of the motion, including a reasonable attorney's fee;
"(3) The entry of an order that the matters regarding which the discovery was sought or other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
"(4) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence;
"(5) If the party failing to comply is the plaintiff, the entry of a judgment of dismissal.
"(c) The failure to comply as described in this section may not be excused on the ground that the discovery is objectionable unless written objection as authorized by Sections 13-6 through 13-11 has been filed."
[7] Because our case law clearly establishes that § 52-192a imposes a mandatory duty on the trial court when considering a postverdict motion for interest and likewise precludes a reading of the statute as implicitly restricting the court's pretrial authority, it is not necessary to parse the fine distinctions between legislation conferring substantive and procedural rights that the litigants in this case pursue. Were we faced with the more difficult problem of determining precisely where the court's inherent authority ends and the statute's power to assign the court a ministerial role beginsa question that may implicate the constitutional allocation of powers between the legislative and judicial branchesa deeper inquiry into the contours of substance and procedure would perhaps be warranted.
[8] This limitation was added to § 52-192a in 2005 along with numerous other changes to the statute. See Public Acts 2005, No. 05-275, § 4. With respect to this limitation, Senator Andrew J. McDonald explained: "[W]e have created a 180 day blackout period, if you will, at the beginning of the case so that the defendants have a meaningful opportunity to undertake discovery, so that they have a reasonable basis of facts and law to determine whether to accept an [o]ffer of [c]ompromise." 48 S. Proc., Pt. 14, 2005 Sess., p. 4413.
[9] We decline to hold, as suggested by the amicus curiae Connecticut Trial Lawyers Association, that the plaintiff's failure to update her response to interrogatory number six per se was in full compliance with Practice Book § 13-15 because it was consistent with prevailing practices. According to the amicus, plaintiffs' attorneys routinely provide reports of medical providers to defendants upon receipt rather than refilling or updating interrogatories in advance of the receipt of any medical reports.
[10] See footnote 5 of this opinion.
[11] The defendants have pointed to other physicians' earlier recommendations against surgery as evidence that it was doubtful whether plans for the Mintz surgery would come to fruition. The plaintiff's decision to pursue treatment from Mintz even after being rebuffed by two other surgeons, however, is more plausibly read as evidence of the plaintiff's persistent desire for treatment.
[12] We reject the defendants' contention that the trial court's sanction was not severe because striking the offer of compromise was a penalty of inherently uncertain magnitude at the time it was imposed: if the plaintiff had failed to recover a greater award at trial than was proposed in the settlement offer, the sanction would have become inconsequential. The uncertain impact of a penalty does not render it inherently reasonable or unreasonablethe consequences of excluding undisclosed evidence, for example, are necessarily speculative, but may nonetheless be proper. See Practice Book § 13-14(b)(4). The court must, however, weigh the risk that the sanction's potential severity will come to fruition against the seriousness of the violation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333798/ | 224 Ga. 128 (1968)
160 S.E.2d 351
HUMPHRIES
v.
GEORGIA POWER COMPANY.
24466.
Supreme Court of Georgia.
Argued February 13, 1968.
Decided March 7, 1968.
Drennan & Brannon, Roy S. Drennan, John D. Humphries, for appellant.
Vaughn & Barksdale, C. R. Vaughn, Jr., for appellee.
FRANKUM, Justice.
Upon the hearing as to whether an interlocutory injunction should be granted the trial court passed the following order: "The evidence discloses that the subject of this litigation is an aged easement which fails to describe the exact measurements. However, it appears that application and usage over the years has fixed the easement to be one hundred (100) feet wide. The defendant is restrained from going upon the lands of plaintiff except upon the width of the easement, to wit: One hundred (100) feet. The measurement shall be fifty (50) feet from the center of the easement on either side. Until further order." The plaintiff in his appeal contends that the trial court should have continued in effect the temporary ex parte restraining order which had been granted restraining the defendant "from trespassing upon the lands of the plaintiff or committing any further acts of waste." The plaintiff admitted before the trial court, as he has before this court, that the defendant has an easement across his property, and the primary question for decision related to the width of that easement. However, in his argument before this court the plaintiff-appellant makes three substantial *129 contentions, the nature of which will appear from the rulings hereinafter made.
1. The testimony of one of the defendant's witnesses, who had worked on the defendant's electric lines as a lineman and as a foreman of a line crew, between 1916 and 1959, that during his employment with the company he had done maintenance work such as clearing the right of way along the lines; that he was familiar with the plaintiff's property and that in clearing the particular part of the right of way over the plaintiff's property and in keeping it clear "we cut 50 feet on each side from us," was not subject to the objection that it was a conclusion. This was a statement of fact and clearly distinguishable from the testimony involved in Little v. Ga. Power Co., 205 Ga. 51, 54 (52 SE2d 322), relied upon by the appellant, where the witness whose testimony was there objected to, testified that the easement in question on which the defendant's line was located was 50 feet in width. The testimony of the witness in this case was properly admitted over the objection urged.
2. The testimony referred to in the preceding headnote was sufficient to authorize the trial judge in the exercise of the discretion vested in him to grant the interlocutory injunction appealed from, and to refuse to continue in effect the temporary ex parte restraining order originally entered. Code § 55-108.
3. Where the evidence authorized the trial judge to find upon the hearing for an interlocutory injunction that the defendant had acquired an easement to erect poles and string wires across the plaintiff's land he did not err in refusing to enjoin the defendant or its employees from entering upon the right of way so acquired for the purpose of replacing, pole for pole, existing wood poles with wood poles of greater height, attaching to the new poles 12-foot cross arms where only 10-foot cross arms had previously been used, from stringing additional wires, and from attaching heavier and larger insulators to the cross arms so as to accommodate higher voltages, it not appearing from the evidence adduced on the hearing that the proposed additional poles, wires and appurtenances will occupy a general area beyond the outer limits of the space previously occupied, or that the proposed construction will be territorially beyond the easement already acquired, or that such proposed use is anything more than a change in the *130 degree of use rather than in the kind of use. Kerlin v. Southern Bell Tel. & Tel. Co., 191 Ga. 663 (2) (13 SE2d 790), and cits.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
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