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https://www.courtlistener.com/api/rest/v3/opinions/1333801/ | 224 Ga. 114 (1968)
160 S.E.2d 374
CITY OF GAINESVILLE
v.
LOGGINS.
24439.
Supreme Court of Georgia.
Argued February 12, 1968.
Decided March 7, 1968.
Kenyon & Gunter, William B. Gunter, for appellant.
Robert E. Andrews, for appellee.
NICHOLS, Justice.
The Court of Appeals applied the well settled principle of law applicable to litigation generally that the voluntary payment of a judgment renders the issue made by such litigation moot. See Keener v. King Hardware Co., 215 Ga. 577 (111 SE2d 215). However, this rule is not applicable to condemnation proceedings, for if so applied any payment of the amount found to be the value of property condemned, whether by special master, or assessors, would preclude the condemnor from its right to appeal to a jury, or to the appellate courts.
In Woodside v. City of Atlanta, 214 Ga. 75, 80 (103 SE2d 108), it was held: "[T]he Constitution of this State emphatically declares that private property cannot be taken for a public use until the owner is first paid just and adequate compensation *115 for it. This provision of the Constitution is so paramount to any mere legislative enactment that for many years legislation respecting its operation was considered unnecessary. Harrison v. State Highway Department, 183 Ga. 290 (188 SE 445). This voice of the Constitution is mandatory, and it is elementary that neither the legislature nor the courts have any right to restrict, evade, or violate it in the slightest degree. The taking of private property for a public use is the exercise of a high power, and before such taking can be constitutionally accomplished all prerequisites must be complied with strictly. Thomas v. City of Cairo, 206 Ga. 336 (57 SE2d 192). To comply both in letter and in spirit with this constitutional requirement, payment of just and adequate compensation to the owner must always precede the taking of his property for a public use." This language was referring to the Constitution and not to a statute.
The mandate of the Constitution is that property cannot be taken or damaged for public purposes without just and adequate compensation being first paid. The disagreement between the Justices of this court in the Woodside case was when the "taking or damaging" occurred, whether the filing of the declaration of taking was a "taking," and whether under the facts the Supreme Court had jurisdiction of the appeal. See Bowers v. Fulton County, 221 Ga. 731, 737 (146 SE2d 884).
While the right to an appeal to a jury in a condemnation case is a matter of legislative discretion and not a right guaranteed by our Constitution (see Oliver v. Union Point & W. P. R. Co., 83 Ga. 257 (9 SE 1086)), yet in order for the condemnor to be entitled to appeal an otherwise valid judgment as to the value of the property condemned, the tender of payment of the amount previously determined to be the amount of just and adequate compensation is required under the Woodside case, supra.
The Woodside case was dealing with an appeal seeking a de novo trial by a jury as to just and adequate compensation, and an appeal by the condemnor to the appellate court after verdict is seeking a de novo trial before another jury as to just and adequate compensation. The right to the first de novo *116 jury trial is a matter of right under statutory law if the requirements of the Constitution and statutory law have been met. The right to a new trial is a right only if the requirements of the Constitution and statutory law have been met and some harmful error of law has occurred on the first trial. In the first instance the prior award of the assessors, or the special master, will be nullified merely by following the law, while in the latter instance, even if the appeal is properly effected, the first verdict will not be nullified unless harmful error has occurred. Thus immediately upon the effecting of the appeal in the first instance it is known that the prior award of "just and adequate compensation" by assessors, or special master, will not be final, and in fact cannot be a final determination of "just and adequate compensation," while after the first jury verdict the amount of the verdict and judgment is "just and adequate compensation" unless set aside and a new trial granted. The rationale of the Woodside case, supra, is that the condemnee cannot be deprived of the full enjoyment of his property by a taking after "just and adequate compensation" has been fixed without payment or tender of such amount. The presumption, after a jury verdict in excess of the award of the assessors, or the special master, is that the amount of the jury verdict is "just and adequate compensation," and it is this amount that must be then paid to the condemnee or into the registry of the court to meet the "first paid" provision of the Constitution. As was held in the Woodside case, supra, (p. 83): "Such tender or such payment was a condition precedent to its right of appeal to a jury; it could not at that time refuse to pay the amount awarded for the property and at the same time insist upon its right to take it." Whether the appeal is to a jury from an award by assessors, or special master, or one seeking a second jury trial, the same results must follow. The condemnor could not at that time refuse to pay the amount awarded by the jury and at the same time insist upon its right to retain the property already taken.
In State Hwy. Dept. v. Hendrix, 215 Ga. 821 (113 SE2d 761), it was held that it is not a prerequisite to payment into the registry of the court that a tender of such payment be refused *117 by the condemnee. See also State Hwy. Dept. v. Farmers Gin Co., 216 Ga. 70 (114 SE2d 537), and State Hwy. Dept. v. Taylor, 216 Ga. 90 (115 SE2d 188). The Hendrix case shows on page 826 that the purpose of Code § 36-1111, (Ch. 36-11 of the Code deals with condemnation using assessors to first determine just and adequate compensation), is to require payment into the registry of the court so that a proper distribution can be made to all claimants of the fund. The same can be said of § 16 of the Act of 1957 (Ga. L. 1957, pp. 387, 397; Code Ann. § 36-616a). However, where the appeal is from a jury verdict and judgment based thereon for an amount in excess of the original award, and the judgment directs to whom the payment is to be made, then the payment or tender to the condemnee in accordance with such judgment is mandatory under the requirement of the Constitution that just and adequate compensation be first paid. Where payment is thus made to a condemnee and a timely notice of appeal filed, the payment, nothing else appearing, is not in satisfaction of a judgment making the appeal moot, but a payment made under the mandate of the Constitution so as to authorize an appeal. Accordingly, the judgment of the Court of Appeals dismissing the condemnor's appeal must be reversed.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333830/ | 224 Ga. 118 (1968)
160 S.E.2d 395
ALGERNON BLAIR, INC.
v.
TRUST COMPANY OF GEORGIA BANK OF DEKALB et al.
24448.
Supreme Court of Georgia.
Argued January 8, 1968.
Decided March 7, 1968.
Powell, Goldstein, Frazer & Murphy, Elliott Goldstein, Wayne Shortridge, Kendrick W. Mattox, Jr., for appellant.
Edward H. Robertson, Albert E. Mayer, Carnes, Jernigan, Dillon & White, James A. White, Jr., Green & Smith, Jack M. Smith, Roland Neeson, for appellees.
FRANKUM, Justice.
This appeal presents a question of first impression in Georgia, since it raises for the first time the issue of what interpretation and effect is to be given to Section 22 (the interpleader section) of the 1966 Civil Practice Act (Code Ann. § 81A-122; Ga. L. 1966, pp. 609, 632; 1967, pp. 226, 232). While the petition (complaint) in this case was filed on July 7, 1967, which was prior to the effective date of the Civil Practice Act (September 1, 1967), the record discloses that the trial judge, in entering the order appealed from, treated the case as governed by the Civil Practice Act (as he was required to do by Section 86 of the Act in the absence of a finding that its application in the particular circumstances would not be feasible or would work injustice), and the parties in their briefs before this court have similarly treated the case, and we will, accordingly, so treat it.
Briefly summarized, the petition of the plaintiff naming as parties defendant L. M. Thompson, Trust Company of Georgia, *119 John C. McElhannon, E. L. Thompson, Trust Company of Georgia Bank of DeKalb, and Professional Waterproofers, Inc., and denominated a bill of interpleader discloses the following facts: The petitioner, Algernon Blair, Inc., was the prime contractor with the General Services Administration, an instrumentality of the United States Government, to furnish all labor and materials and to perform all work required for certain additions to the Communicable Disease Center at Atlanta, Georgia. Petitioner entered into a contract with the defendant Professional Waterproofers, Inc., the subcontractor, which contract was signed on behalf of the subcontractor by the defendant L. M. Thompson as president, and which contract was for the performance of certain waterproofing operations in connection with plaintiff's prime contract. Under the said contract with Professional Waterproofers, Inc., the petitioner retained $6,260.98 of the contract price, which retainage became payable on June 15, 1967. Petitioner did not know it at the time, but when the aforesaid contract was executed there was no such corporation as Professional Waterproofers, Inc., chartered under the laws of Georgia, and petitioner alleges that it does not know whether there was such a corporation under the laws of another state on that date or not, and therefore does not know whether it contracted with a corporation or with L. M. Thompson individually.
Petitioner has been presented with claims against the aforesaid retainage, as follows: By the defendant, Trust Company of Georgia in the amount of $2,000 derived from a loan secured by this retainage made by that defendant to Professional Waterproofers, Inc., or to L. M. Thompson; by John C. McElhannon in the amount of $4,893.82 based on a note signed by Truman W. McCabe and the defendant L. M. Thompson either as individuals or on behalf of Professional Waterproofers, Inc., and secured by the retainage; by the defendant L. M. Thompson based on a judgment in the principal amount of $435 against the defendant L. M. Thompson and presented by means of a certain described summons of garnishment served on petitioner; by the defendant, Trust Company of Georgia Bank of DeKalb, based on a claim in the principal amount of $3,549.51 being asserted against Professional Waterproofers, Inc., in a pending *120 lawsuit and presented to petitioner by means of a described summons of garnishment served on petitioner; and by the defendant Professional Waterproofers, Inc., which is demanding that the retainage due under the said subcontract be paid to it.
Petitioner alleged that it could not, "with safety and without being exposed to multiple liability and to a multiplicity of lawsuits, pay the retainage or any part thereof to any of the defendants because of the adverse and conflicting claims and the uncertainty as to whom payment should be made," and that it "is not in collusion with any parties or their counsel and is not interested in the retainage due under the contract, but is a mere stakeholder," and stands ready to pay the amount of the retainage into court. The defendant Trust Company of Georgia Bank of DeKalb filed, on July 21, 1967, general and special demurrers under the then applicable procedure. In an order rendered, as we have said, on October 19, 1967, the trial court dismissed the petition or complaint. The appeal is from that order. The contention of the appellant, in substance, is that in the language of the 1966 Civil Practice Act, the trial court erred in sustaining the appellee's motion to dismiss the complaint for failure to state a claim upon which relief can be granted, because Section 22 of that Act broadened and liberalized the rules relating to the remedy of interpleader so as to render the technicalities formerly associated with the equitable remedy of a strict bill of interpleader no longer applicable to complaints tried under that section.
We think the appellant's contention is correct and that the trial court erred in dismissing the petition. Interpleader provisions are remedial in nature and therefore should be liberally construed in order that their utilitarian purposes may be best effectuated. Scott v. Mayor &c. of Mt. Airy, 186 Ga. 652 (198 SE 693). When thus construed and when properly utilized, a many-sided dispute may be economically and expeditiously settled within a single proceeding, and the stakeholder will thereby be relieved of the necessity of determining at his peril which of several claimants to a fund should be paid, and, at the same time, he will be shielded from the threat or possibility of vexatious multiple litigation and from the hazard of inconsistent and *121 adverse determinations in separate suits as to liability to different claimants. The right to interpleader under Section 22 of the Act should depend merely upon the stakeholder's good-faith fear of adverse claims, regardless of the merits of those claims or what the stakeholder bona fide believes the merits to be. The complainant's offer to deposit the disputed fund into the registry of the court and to be discharged from the litigation should not be denied merely because the claim advanced by one of the claimants is weak or rests on tenuous grounds. Indeed, it will normally be the case that the assertions of one or more of the claimants will be lacking in merit, but that fact alone does not relieve the stakeholder of the substantial risk of vexatious litigation. In the very nature of interpleader, where the total claims presented to the stakeholder exceed the amount of the fund, some of the claims will be found either to be lacking in merit or to be subordinate, but the fact that this may appear on the face of the stakeholder's petition should not operate to deny him the relief he seeks, that is, relief from the threat of vexatious multiple litigation. We, therefore, hold that regardless of whether the petition, considered merely in the light of the provisions of Code Ann. § 37-1503 stated a claim upon which relief can be granted or not, it is clear that under the remedial provisions of Section 22 of the 1966 Civil Practice Act, it did set forth a claim upon which relief can be granted and that the trial court erred in dismissing the petition.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333838/ | 117 Ga. App. 399 (1968)
160 S.E.2d 855
MATHIS
v.
KIMBRELL BROTHERS TIRE SERVICE et al.
43196.
Court of Appeals of Georgia.
Argued November 8, 1967.
Decided March 14, 1968.
Norton & Cooper, J. Robert Cooper, for appellant.
Whelchel, Dunlap & Gignilliat, James A. Dunlap, Wright Willingham, for appellees.
WHITMAN, Judge.
This is an appeal by Franklin L. Mathis, plaintiff in the court below, from a judgment entered on August 1, 1967, granting a motion for summary judgment "in favor of Lee Roy Kimbrell, Willis Kimbrell and Raymond Kennedy as partners, doing business as Kimbrell Bros. Tire Service," the notice of appeal designating judgment appealed from as "from the order of the superior court entered on the 1st day of August, 1967, granting its motion for summary judgment against plaintiff and in favor of defendant, Kimbrell Bros. Tire Service."
The case originated by the filing in the lower court of a petition by Mathis as plaintiff against one J. D. Kimbrell and Kimbrell Bros. Tire Service, as defendants, alleging defendant J. D. Kimbrell to be a resident of Marshall, Arkansas, and in Paragraph 2 of his petition alleging the defendant, Kimbrell Bros. Tire Service to be a corporation existing under the laws of the State of Texas. The petition alleged that the defendants were nonresident motorists within the terms of the Motor Vehicle Act and it was necessary that they be served by serving the Secretary of State of Georgia. It was a suit for damages for alleged personal injuries and property damage claimed to have resulted from the operation by defendant J. D. Kimbrell, who was alleged to have been negligent in the operation of a tractor-trailer, which acts of negligence it is *400 alleged "were acts for which both of the named defendants are liable and they are the direct and proximate cause of the in-juries and pain and suffering sued for."
During the pendency of the case in the court below a default judgment as to liability was rendered against the individual defendant J. D. Kimbrell, which is in no wise involved in the appeal before this court.
By order of the trial court dated February 23, 1966, agreed to by plaintiff, the defendant Kimbrell Bros. Tire Service, was granted thirty additional days within which to file defensive pleadings, the order providing that nothing therein should be construed as submitting said defendant to the jurisdiction of the court.
On March 24, 1966, Kimbrell Bros. Tire Service alleging itself to be "a partnership composed of Lee Roy Kimbrell, Willis Kimbrell and Raymond Kennedy, all of Houston, Texas," filed an unverified plea to the jurisdiction, and on the same date filed separate demurrer and answer without waiving its demurrer and plea to the jurisdiction; the demurrer referring to Kimbrell Bros. Tire Service as a partnership, and the answer of defendant Kimbrell Bros. Tire Service denying Paragraph 2 of plaintiff's petition and alleging it to be "a partnership composed of Lee Roy Kimbrell, Willis Kimbrell and Raymond Kennedy, all of Houston, Texas."
Thereafter on March 30, 1966, without having amended its plea to the jurisdiction theretofore filed on March 24, 1966, Kimbrell Bros. Tire Service, a partnership composed of the three named partners, filed its verified plea to the jurisdiction.
On April 18, 1967, the trial court entered an order reciting "the court after hearing argument of counsel on the plea to the jurisdiction, general demurrer and other defensive pleadings, determines to reserve final ruling" thereon, "in order to allow plaintiff's counsel to initiate discovery proceedings," and by said order adjudged and directed that the plaintiff initiate discovery proceedings by interrogatories on or before April 28, 1967. On that date counsel for plaintiff filed written interrogatories directed "to Kimbrell Bros. Tire Service, defendants," and on May 15, 1967, response was filed to said interrogatories as "answers of defendant, Kimbrell Bros. Tire Company." To interrogatories as to whether or not Kimbrell Bros. Tire Service is a corporation or partnership, and if either, inquiry as to the names of the owners or any persons having *401 any financial interest, the answers of Kimbrell Bros. Tire Company responded that Kimbrell Bros. Tire Company is a partnership composed of Lee Roy Kimbrell, Willis Kimbrell and Raymond Kennedy, all of Houston, Texas.
On July 18, 1967, Kimbrell Bros. Tire Co. filed a motion entitled "Motion to dismiss petition" in two sections, A and B, consisting of six numbered paragraphs, each paragraph 6 alleging "this defendant relies on and cites in support of its motion the petition of the plaintiff, the demurrers, the plea and answer of this defendant, the interrogatories of the plaintiff and response of this defendant thereto all previously filed in this court." There is also attached to the motion as Exhibits A and B a copy of the interrogatories and responses thereto and affidavit of one Lee Roy Kimbrell, "a partner of this defendant." The motion prayed that it be sustained and the plaintiff's petition be dismissed. On this motion an order was issued of date July 18, 1967, requiring the plaintiff to show cause on the 1st day of August, 1967, at 2 p. m. why the motion to dismiss should not be sustained and judgment entered as prayed therein, said order also providing that a copy of the motion and of the order be served on the plaintiff instanter.
There are three questions involved on this appeal. First, the nature of the motion to dismiss; second, the timeliness of hearing on the motion; and, third, whether the individual defendant J. D. Kimbrell was the agent of the partnership, Kimbrell Bros. Tire Service or Kimbrell Bros. Tire Company, as the case may be, or an independent contractor.
Before entering upon a discussion of these questions we deal preliminarily with the nature of the defendant Kimbrell Bros. Tire Service. The plaintiff sued the Tire Service as a Texas corporation. There were no pleadings by Tire Service as a corporation. The record shows there was no such corporation. The defensive pleadings were filed by or on behalf of Kimbrell Bros. Tire Service, or as otherwise stated, Kimbrell Bros. Tire Company, a partnership composed of J. D. Kimbrell, Willis Kimbrell and Raymond Kennedy, and summary judgment was granted in favor of the three named partners as such of Kimbrell Bros. Tire Service. No question has been raised by any of the parties in respect to the variance between the characterization one of the defendants as a corporation and as a partnership, or in respect to the variance in the partnership names, and no question in respect to variances is adjudicated *402 by this opinion. Moreover, in view of the fact that plaintiff's petition was amendable and he did not amend his petition changing it from a suit against a corporation to that of a partnership insofar as the partnership is concerned, these variances are not regarded as material here. See Bell v. Ayers, 82 Ga. App. 92 (60 SE2d 523); Parker v. Kilgo, 109 Ga. App. 698 (2), 701 (137 SE2d 333). See also Chambers v. Williams Bros. Lumber Co., 80 Ga. App. 38 (2) (55 SE2d 244); Tuggle v. Waller, 91 Ga. App. 721, 723 (87 SE2d 123).
1. The lower court correctly regarded the "Motion to dismiss" as a motion for summary judgment. It raised the question of the relationship between J. D. Kimbrell, the owner and operator of the tractor, and the partnership, the owner of the trailer and its load of tires which were being hauled by the tractor to North Carolina for delivery there to a third person, the purchaser of the tires; that is, whether J. D. Kimbrell was an agent of the partnership or an independent contractor in the transportation contract between the partnership and J. D. Kimbrell on a fixed fee basis. Attached to the motion to dismiss were the interrogatories and responses thereto, and the affidavit of one Lee Roy Kimbrell, a member of the partnership.
2. The motion was not untimely heard. While it is true that Code Ann. § 110-1202 provides that a party against whom a cause of action "is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof," and Code Ann. § 110-1203 provides that "The motion shall be served at least 30 days before the time fixed for the hearing," it is also provided by Code Ann. § 110-1207 that "The court may reduce or enlarge any time requirements prescribed herein for the filing of any documents or pleadings, or for the hearing date on any motion filed hereunder." In the present case it will be noted from the record that under date of April 18, 1967, the lower court held a hearing on the plea to the jurisdiction, general demurrer and other defensive pleadings, and thereupon by order of said date "in order to allow plaintiff's counsel to initiate discovery proceedings as to any relevant issue in said case or which likely may lead to the discovery of any such relevant matter," ordered the plaintiff to initiate discovery proceedings by interrogatories on or before April 28, 1967, with the right in the defendants to have 20 days from the date same are served within which to answer the interrogatories, and *403 that interrogatories were so sued out and answered, the answers being served on May 15, 1967, and filed on May 16, 1967. The motion to dismiss, construed as a motion for summary judgment and directed by the order thereon of July 18, 1967, to be served on the plaintiff instanter, was served on said date by mail as authorized by Code Ann. § 81-301. See also Mathis v. Blanks, 212 Ga. 226 (1) (91 SE2d 509); Fluellen v. Campbell Coal Co., 54 Ga. App. 355 (188 SE 54). The order and judgment of the lower court of date August 1, 1967, on the motion for summary judgment recites the hearing thereon pursuant to the previous order of the court of July 18, 1967, and arguments having this day been heard, thereby indicating the presence of the attorneys for both plaintiff and the partnership defendant. It does not appear that counsel for plaintiff, either before or on the hearing asked or made a motion for a continuance of the hearing for any purpose. The plaintiff had already on his own initiation sued out the interrogatories pursuant to the order of the court of April 18, 1967, as discovery proceedings as to any relevant issue in the case or which likely might lead to the discovery of any such relevant matter; and the plaintiff in his notice of appeal directed the clerk not to omit any part of the record but "to include all of the pleadings, special pleas, demurrers and motions, along with interrogatories and all motions." The order and judgment on the motion for summary judgment did not pass upon the demurrers.
The fifth enumeration of errors complains that the lower court erred in entering its order of August 1, 1967, for the reason that the order of date July 18, 1967, setting the date on which the motion was to be heard shows that the time provided in said order for the date of hearing did not conform to the time allowed in the statutes creating this summary proceeding. This enumeration of error is without merit.
3. The record shows the following undisputed facts: The individual defendant J. D. Kimbrell was the owner and operator of the tractor and the partnership was the owner of the trailer which with its load of tires was being hauled by the tractor for a fixed fee to be paid by the partnership to J. D. Kimbrell for transportation and delivery to a purchaser of the tires; that Kimbrell was not an agent or employee of the partnership and had no financial interest therein, and that the partnership did not give Kimbrell any instructions as to the route to be *404 taken, what to do and the transportation of the tires, nor exercise any control over Kimbrell in the transportation of the trailer and its load of tires; that the only responsibility of Kimbrell under his agreement with the partnership was the transportation and delivery of the tires. The relationship between Kimbrell and the partnership was that of independent contractor on the part of Kimbrell, and the partnership was not liable for the negligence, if any, of Kimbrell in the operation of the tractor.
The judgment of the lower court in sustaining the motion for summary judgment and that the plaintiff has no right of recovery against the defendant partnership or against any individual partner of the partnership and in favor of the named partners, doing business as Kimbrell Bros. Tire Service, is affirmed.
Judgment affirmed. Pannell, J., concurs. Bell, P. J., concurs in the judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263156/ | 238 P.3d 811 (2008)
FOLEY
v.
AHMAD.
No. 51199.
Supreme Court of Nevada.
April 10, 2008.
Decision Without Published Opinion Dismissed-Voluntary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1864203/ | 345 So.2d 61 (1977)
Rudolph WALKER and Bertha Landeche, his wife
v.
The ST. PAUL INSURANCE COMPANIES et al.
No. 59722.
Supreme Court of Louisiana.
May 11, 1977.
Writ denied. On the facts found by the Court of Appeal, the result is correct. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276134/ | 56 Cal.Rptr.3d 912 (2007)
149 Cal.App.4th 356
The PEOPLE, Plaintiff and Respondent,
v.
John Joseph SALCIDO, Defendant and Appellant.
No. F050116.
Court of Appeal of California, Fifth District.
April 4, 2007.
*913 Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Stan Cross, Assistant Attorney General, Louis M. Vasquez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and respondent.
Certified for Partial Publication.[*]
OPINION
WISEMAN, Acting P.J.
Appellant John Joseph Salcido was convicted by a jury of multiple crimes, which include two charges that he actively participated in a criminal street gang in violation of Penal Code section 186.22, subdivision (a). Salcido only challenges these two convictions, alleging the jury was instructed improperly based on the trial judge's modifications to CALCRIM No. 1400. We reject his contentions and conclude that the modified instruction accurately states the law. In the unpublished portion of this opinion, we conclude that sufficient evidence supports his convictions of these two charges.
*914 PROCEDURAL HISTORY
A jury convicted Salcido of (1) possession of a dirk or dagger on April 3, 2005 (Pen.Code, § 12020, subd. (a)(4)[1] (count 1)); (2) possession of a billy club on April 3, 2005 (§ 12020, subd. (a)(1) (count 2)); (3) two counts of active participation in a criminal street gang, one on April 3, 2005 and the other on September 10, 2005 (§ 186.22, subd. (a) (counts 3 and 10)); (4) providing a false identity to a peace officer (§ 148.9, subd. (a) (count 4)); (5) possession of a stolen vehicle on September 10, 2005 (§ 496d, subd. (a) (count 5)); (6) carrying a concealed weapon in a vehicle on September 10, 2005 (§ 12025, subd. (a)(1) (count 7)); (7) carrying a loaded firearm in a vehicle on September 10, 2005 (§ 12031, subd. (a)(1) (count 8)); and (8) possession of brass knuckles on September 10, 2005 (§ 12020, subd. (a)(1) (count 9)). The jury also found true allegations as to counts 1, 2, 7, 8, and 9 that the offenses were committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced Salcido to a total term of six years.
Salcido contends his convictions for active participation in a criminal street gang on counts 3 and 10 must be reversed because (1) the trial court failed to instruct the jury that they were required to find he committed or aided and abetted a separate felony in addition to an underlying gang-related felony, and the error is not harmless because the evidence was insufficient to support this finding; and (2) the evidence was insufficient to establish that he knew members of the criminal street gang he associated with, had engaged in a pattern of criminal gang activity. We reject Salcido's contentions and affirm the judgment.
FACTUAL HISTORY
I. The prosecution's case
April 3,2005, incident
At 6:30 a.m. on April 3, 2005, Madera Police Officer Josh Chavez was on routine patrol when he decided to speak with two individuals, one of which was Salcido. After they agreed to speak with him, Salcido told the officer his name was Jonathan Sauceda, although he later admitted his real name was John Salcido. The other individual was Andres Espijo. Espijo told Chavez he was on probation, while Salcido told the officer he was carrying a bat for "protection." Chavez handcuffed Salcido and searched him. The officer found a fixed-blade knife concealed in Salcido's pants pocket and a bat hidden in his pant leg. Salcido mentioned he used to be a Norteno and had been having problems with "some guys."
September 10, 2005, incident
On August 26, 2005, a 2001 Chevrolet pickup truck Steve Tolmachoff owned was left at a body shop in Madera for repairs. By September 6, repairs on the truck had been completed, although the truck had not yet been returned to its owner. When the body shop's owner opened the business on September 6, he realized his shop had been broken into and the truck taken. The owner was not aware of anyone from the body shop placing a gun inside the truck, and Tolmachoff did not" leave a handgun in the truck when he brought it in for repairs.
On September 10, 2005, Madera Police Sergeant Johnny Smith saw a Chevrolet pickup truck breaking traction. The truck pulled into a driveway, which Smith suspected was an attempt to evade him. Smith drove up to the vehicle and noticed *915 the tailgate was lowered, which he said was a common practice with stolen vehicles to conceal the license plate. The driver got out of the vehicle and started to walk away with a female, who had gotten out on the passenger side. When Smith told the driver to come speak to him, the driver complied. The driver, whom Smith identified at trial as Salcido, said his name was John Sauceda. Smith told the female passenger to raise the tailgate. After Smith obtained the license plate number, he learned the truck belonged to Tolmachoff.
Salcido told Sergeant Smith a friend who lived at a motel in Madera had lent him the truck just 30 minutes before, giving the friend's name and description. Smith later went to the motel, but no one was there matching the friend's name or description. Salcido told the officer he was a former Norteno gang member with the Barrio West Side.
Madera Police Officer Daniel Foss responded to Smith's call for assistance in the detention of the pickup truck. Foss inventoried the truck and found a loaded handgun between the driver's seat and the center console, readily accessible to the driver. He also located a set of brass knuckles in Salcido's pants pocket.
Appellant's gang affiliation
Officer Jason Dilbeck, Madera County Police Department's gang liaison officer, testified as an expert on criminal activity by gangs and about his familiarity with the local Norteno criminal street gang. Dilbeck stated there were approximately 1,500 Norteno gang members in Madera. He indicated that Nortenos identify with signs and symbols such as the color red, the number 14, four dots, Huelga birds and the north star. Dilbeck explained that to instill respect or fear, gang members commit violent crimes, intimidate witnesses, wear colors, hang out in large groups, and carry weapons. The primary activities of the Norteno gang members include narcotic sales, burglary, possession of stolen property and vehicles, and vehicle burglaries. They also participate in assaults with deadly weapons, shooting at inhabited dwellings, and some homicides. There are different sets of the Norteno street gang, one of which is the Barrio West Side. There are also varying levels of gang participation, ranging from peripheral members, who may wear colors and associate with gang members, to gang members, to "shot callers" who direct the criminal activity.
In Officer Dilbeck's opinion, Salcido was a member of the Norteno criminal street gang. Dilbeck based this opinion on previous contacts Salcido had with the Madera Police and Sheriff Departments and the Department of Corrections. These contacts, which took place from January 18, 2001 to September 10, 2005, showed that Salcido had participated in gang-related crimes and had a gang moniker and gang-related tattoos. Salcido dressed in gang attire, had been identified by reliable sources or rival gang members as a gang member, and was documented as associating with known gang members. In August 2004, March 2005, and September 2005, Salcido admitted to Barrio West Side gang membership.
Dilbeck believed Salcido's possession of the bat and knife on April 3, 2005, was gang related, as the person he was with was an admitted gang member and Salcido had gang-related tattoos. In addition, Salcido said he had been a West Side gang member since he was 17 years old, and the bat Salcido was carrying was red, the Norteno color. Dilbeck had confiscated bats from gang members in the past and knew gang members used bats to commit assaults.
Officer Dilbeck also believed Salcido exhibited objective signs of gang membership *916 during the September 10 incident. He explained that it is common for gang members to claim, as Salcido did, that they used to be gang members when they are arrested for what may be seen as a gang-related crime. Doing so allows them to state their allegiance to the gang and simultaneously deny active participation so the crime will not be charged as a gang-related crime. Dilbeck also believed that the fact Salcido was carrying a gun and was in a stolen vehicle with a known Norteno gang member also showed the crime was gang related. He opined that it is common for gang members to steal cars or be in possession of stolen cars and to possess stolen or unregistered guns. If Salcido were no longer affiliated with the gang, the gang would not allow him to wear gang attire and associate with gang members.
Dilbeck also opined that Salcido was an active participant in the gang since he continued to hang out with known gang members, wear gang attire, possess items considered to be gang paraphernalia, and commit crimes with other gang members. Dilbeck went to Salcido's house in November 2005 and entered Salcido's room, which he shared with his brother. There, Dilbeck saw Salcido's moniker and gang-related graffiti on the walls, a red baseball cap with markings on it that signified the Madera Nortenos, and another hat with gang-related markings on it.
In Officer Dilbeck's opinion, Salcido committed the alleged crimes for the benefit of the Norteno gang because each time he was with another Norteno member and was carrying weapons, which engenders fear. Dilbeck testified that one of Salcido's fellow Norteno gang members, Jesse Candia, Jr., who also claimed to belong to the Barrio West Side, was convicted in 2004 for a 2002 charge of possessing methamphetamine for sale. Another Norteno gang member, who also claimed to beling to the Barrio West Side, Johnny Arrellano, committed a number of offenses in 2002, including transportation of methamphetamine, possession of a loaded firearm, possession of methamphetamine for sale, participation in a criminal street gang, and child endangerment. Given hypothetical facts like those in Salcido's cases, Dilbeck opined that the resulting crimes were committed for the benefit of a criminal street gang.
Defense
Correctional Corporal Hermenio Sauceda, with the Madera County Department of Corrections, works in the classifications gang investigation unit. According to Corporal Sauceda, when Salcido was placed in the county jail in September 2005, Salcido classified himself as a Northern drop-out gang member. Salcido initially requested that he be housed in the maximum-security administrative segregation unit where he remained for one month. After that, he asked to be placed with the other dropouts. When Salcido was in custody for four days in April 2005, he did not classify himself as a drop-out. At that time, he was placed in the general population because the jail had no information that Salcido was a Northern gang member.
Salcido testified that he carried weapons for his own safety ever since he and his father were the victims Of a drive-by shooting by Southerners in October 2003. After the shooting, Salcido claimed he had "bad situations with the Northerners" because his "homies" did not help him or his father when they were shot. Salcido expected them to help him retaliate, but they did not. About a month after the shooting, some of the people in his neighborhood with whom he grew up and were Northerners called him names because he no longer associated with them. Salcido claimed that, after that, the only gang *917 member he spent time with was his cousin, Andres Espijo. He did so until they had a falling out because of what happened with the other "homiest,]" and Espijo's girlfriend, who was in the truck with him. In January 2005, he was in contact with his cousin's boyfriend, who Salcido denied was a Barrio West Side member, and in July 2004, he was caught associating with a childhood friend who was a Barrio West Side member. Salcido testified he was no longer part of a gang.
Salcido said he wore red clothes after the shooting because he had nowhere to live and was borrowing clothing. In July 2005, he still wore red shoes. Salcido claimed he told jail personnel in April 2005 he was a Norteno even though he was a drop-out because he did not know they had a drop-out tank in the jail.
Salcido's father testified that he did not believe his son was a gang member because he never saw him commit any type of gang activity, and he was always home and never went anywhere. When he and Salcido were shot in their front yard in 2003, he believed the shooters were after his other son.
DISCUSSION
I. Jury instruction on section 186.22, subdivision (a)
Salcido contends that his convictions on counts 3 and 10 must be reversed because the trial court misinstructed the jury on the elements of street terrorism, also known as active gang participation, as defined in section 186.22, subdivision (a).[2] "Subdivision (a) createfs] a substantive offense for active participation in a criminal street gang...." (People v. Ngoun (2001) 88 Cal.App.4th 432, 435, 105 Cal.Rptr.2d 837 (Ngoun).) Our Supreme Court has identified the elements of section 186.22, subdivision (a), as: "`actively participat[ing] in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity' and `willfully promot[ing], furthering], or assisting] in any felonious criminal conduct by members of that gang.'" {People v. Robles (2000) 23 Cal.4th 1106, 1115, 99 Cal.Rptr.2d 120, 5 P.3d 176.) The standard jury instruction for the crime of active participation in a criminal street gang is contained in CACRIM No. 1400.[3]
*918 Here, in a brief discussion of jury instructions before closing arguments, defense counsel informed the court he objected to the modified version of CALCRIM No. 1400 that the court intended to read to the jury. Defense counsel complained that *919 the court's proposed instruction identified the four felonies Salcido was charged with as the felonious criminal conduct and asked "the wording to be of a more general nature so it's known that other felonies could be considered for this rather than just the four mentioned." The court declined the request, explaining that the People's theory of the case was that Salcido was the one who committed the felonious crimes, which were the four crimes charged, and the jury could not consider any other felonious conduct. The court pointed out that the parties had discussed CALCRIM No. 1400 extensively, and defense counsel had a "general objection" to the instruction it intended to give, which "synthesized" CALCRIM No. 1400 and CALJIC No. 6.50, because it differed from the one CALCRIM provided. Defense counsel had no further objections to the instruction.
In instructing the jury on participation in a criminal street gang, the court modified the third element in the first part of CALCRIM No. 1400 by adding the italicized language: "To prove that the defendant is guilty of this crime[,] the People must prove that, one, the defendant actively participated in a criminal street gang. Two, when the defendant participated in the gang[,] he knew that members of the gang engaged in or have engaged in a pattern of criminal gang activity. [¶] And, three, the defendant willfully promoted, furthered or assisted by either directly and actively committing a felony offense or aiding and abetting felonious criminal conduct by members of that gang." (Italics added.)
The court's instruction ended with the definition of felonious criminal conduct: "Felonious criminal conduct means committing or attempting to commit any of the following crimes: Illegal possession of a weapon, receiving stolen property, carrying a loaded firearm in a vehicle or carrying a concealed firearm in a vehicle." As relevant here, the instruction omitted the following portion of CALCRIM No. 1400: "To prove that the defendant willfully assisted, furthered, or promoted a crime, the People must prove that: [¶] 1. A member of the gang committed the crime; [¶] 2. The defendant knew that the gang member intended to commit the crime; [f] 3. Before or during the commission of the crime, the defendant intended to aid and abet the gang member in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the commission of the crime."
Salcido takes the position that the court erred in two respects when it modified CALCRIM No. 1400. First, Salcido contends that the trial court should have instructed the jury that a person cannot be guilty of street terrorism unless he or she aids and abets "a separate felony offense" in addition to an underlying gang-related felony offense. Salcido argues that the court erred when it omitted from the instruction the language from CALCRIM No. 1400 which states what the prosecutor must show to prove that the defendant willfully assisted, furthered, or promoted a crime. Second, he contends that the separate felony offense must be one of the offenses listed in section 186.22, subdivision (e), which defines a "`pattern of criminal gang activity'" and lists the offenses upon which this finding may be based.
We begin with Salcido's reliance on the CALCRIM user guide and CALCRIM No. 1400 itself as authority for his claims of error. Published jury instructions, however, are "not themselves the law, and are not authority to establish legal propositions or precedent.... At most, when they are accurate, ... they restate the law." (People v. Morales (2001) 25 Cal.4th 34, 48, fn. 7, 104 Cal.Rptr.2d 582, 18 P.3d 11.) *920 Consequently, we move on to Salcido's other rationale in support of his argument.
More powerfully, Salcido relies on an often misinterpreted statement made by our Supreme Court in People v. Castenada (2000) 23 Cal.4th 743, 750, 97 Cal.Rptr.2d 906, 3 P.3d 278 (Castenada): "[A] person liable under section 186.22(a) must aid and abet a separate felony offense committed by gang members." On its own, the statement arguably supports Salcido's position. When read in context, however, it is part of the Supreme Court's explanation that section 186.22, subdivision (a), avoids punishing mere association with a disfavored organization and satisfies the due process requirement of personal guilt (see Scales v. United States (1961) 367 U.S. 203, 81 S.Ct. 1469, 6 L.Ed.2d 782) by criminalizing gang membership only where the defendant bears individual culpability for "a separate felony offense committed by gang members." (Castenada, supra, 23 Cal.4th at pp. 749-751, 97 Cal.Rptr.2d 906, 3 P.3d 278.) In other words, because section 186.22, subdivision (a), "limits liability to those who promote, further, or assist a specific felony committed by gang members and who know of the gang's pattern of criminal gang activity" (Castenada, supra, at p. 749, 97 Cal.Rptr.2d 906, 3 P.3d 278), anyone who violates the statute must be more than a passive gang associate. He or she "`would also ... be criminally liable as an aider and abettor to [the] specific crime' committed by the gang's members...." (Ibid.) Castenada discussed the crime of gang participation in terms of aiding and abetting. We clarified in Ngoun that section 186.22, subdivision (a), also applies to a direct perpetrator's gang-related criminal conduct. (Ngoun, supra, 88 Cal.App.4th at p. 436, 105 Cal.Rptr.2d 837.) In Ngoun, the appellant argued that there was insufficient evidence to support his conviction under section 186.22, subdivision (a), because there was no proof he aided or abetted a felonious act actually committed by another gang member. It was undisputed that if the evidence proved appellant engaged in any criminal conduct, it was only as the perpetrator of the murder and assaults with which he was charged. (Ngoun, supra, at pp. 434-435, 105 Cal.Rptr.2d 837.)
We wrote that "[u]nder the language of subdivision (a), liability attaches to a gang member who Svillfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang.' (§ 186.22, subd. (a).)" (Ngoun, supra, 88 Cal.App.4th at p. 436,105 Cal.Rptr.2d 837.) After reviewing dictionary definitions of "promote," "further," and "assist," we concluded: "The literal meanings of these critical words squares with the expressed purposes of the lawmakers. An active gang member who directly perpetrates a gang-related offense `contributes' to the accomplishment of the offense no less than does an active gang member who aids and abets or who is otherwise connected to such conduct. Faced with the words the legislators chose, we cannot rationally ascribe to them the intention to deter criminal gang activity by the palpably irrational means of excluding the more culpable and including the less culpable participant in such activity." (Ibid.) In Ngoun, we rejected Salcido's contention that some separate felony is required in addition to the underlying felony committed to further, promote, or assist the gang. (See id. at pp. 436-437, 105 Cal.Rptr.2d 837 [citing cases where "a defendant [was] convicted both as a perpetrator of a substantive felony and as a gang member under section 186.22, subdivision (a) based upon the same felony"].)
Salcido attempts to distinguish Ngoun on the ground that there, other gang members actually were present when the appellant committed the murder and assaults underlying his section 186.22, subdivision (a), conviction. He contends Ngoun *921 stands for the proposition that a "[principal] who commits a crime jointly with other gang members is equally liable under section 186.22, subdivision (a)." Salcido asserts that subdivision (a) imposes liability on perpetrators only if they commit the crime in concert with other gang members. In Ngoun, however, we placed no limitation on our holding. To the contrary, we concluded that the subdivision "applies to the perpetrator of felonious gang-related criminal conduct as well as to the aider and abettor." (Ngoun, supra, 88 Cal. App.4th at p. 436, 105 Cal.Rptr.2d 837.) Even though in Ngoun other gang members were present when the crimes were committed, it is uncertain whether they participated in the crimes. (Id. at p. 437, 105 Cal.Rptr.2d 837.) Here, Salcido was accompanied by known gang members on both occasions, although there was no evidence they participated in Salcido's crimes. In each case, however, "[t]he evidence supports a reasonable inference that the [crimes] were intended by appellant to promote, further and assist the gang in its primary activitiesthe commission of criminal acts and the maintenance of gang respect." (Ibid.)
Salcido also attempts to distinguish Ngoun, arguing that the offenses the defendant in Ngoun committed were predicate offenses listed in section 186.22, subdivision (e), while the offenses he committed were not predicate offenses at that time. We observe that, in 2006, the list of predicate offenses was expanded to include two of the offenses Salcido was convicted of in this case, including carrying a concealed firearm in violation of section 12025 (§ 186.22, subd. (e)(32)) and carrying a loaded firearm in violation of section 12031 (§ 186.22, subd. (e)(33)). (Stats. 2006, ch. 596, § 1, p. 3788.)
Subdivision (e) provides that a gang engages in a "`pattern of criminal gang activity'" when its members participate in "two or more" specified criminal offenses (predicate offenses) that are committed within a certain time frame and "on separate occasions, or by two or more persons." (§ 186.22, subd. (e); see also People v. Zermeno (1999) 21 Cal.4th 927, 930, 89 Cal.Rptr.2d 863, 986 P.2d 196.) This language ties into Salcido's contention that not only must he have aided and abetted another gang member in a separate felony, but the separate felony must be one of the predicate offenses listed in section 186.22, subdivision (e). Salcido further asserts that the definition of "felonious criminal conduct" the trial court gave here was erroneous because none of the crimes listed were predicate offenses.
Section 186.22, subdivision (a), however, does not contain any requirement that the "felonious criminal conduct" the defendant "willfully promotes, furthers, or assists" consist of the predicate offenses listed in section 186.22, subdivision (e), which, pursuant to that subdivision, applies only to determine whether there was a "`pattern of criminal gang activity....'" While the crimes the defendants in Castenada and Ngoun committed also may have qualified as predicate offenses, neither case held that this was a requirement of the statute. Obviously, cases do not stand for propositions not considered. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176, 119 Cal. Rptr.2d 903, 46 P.3d 372.)
Here, if the evidence proved any criminal conduct by Salcido, it was only as the perpetrator of the crimes establishing the felonious criminal conduct with which he was charged. This conduct included illegal possession of a weapon, receiving stolen property, carrying a loaded firearm in a vehicle, or carrying a concealed firearm in a vehicle. Faced with CALCRIM No. 1400 which defines when a defendant willfully assists, furthers, or promotes a crime only in terms of whether the defendant *922 aided and abetted another gang member in the commission of a crime, the trial court appropriately omitted that portion of the instruction. Instead, it told the jury it must find that Salcido `Svillfully promoted, furthered or assisted by either directly and actively committing a felony offense or aiding and abetting felonious criminal conduct by members of that gang." (Italics added.) As a result, the court correctly instructed the jury that Salcido could be convicted of the cirime if he was a direct perpetrator of the felonious criminal conduct. Although the court never defined the terms "aiding and abetting," this did not impact Salcido since the jury could not have found Salcido guilty based on aider-and-abettor status.
Recognizing this issue, in Ngoun, we commented that the "real difficulty" was in CALJIC No. 6.50, which at the time stated that one of the elements of the crime was "`[t]hat person aided and abetted [a] member[s] of that gang in committing the crimes[s] of ____.' (Italics added.)" (Ngoun, supra, 88 Cal.App.4th at p. 435, fn. 20,105 Cal.Rptr.2d 837.) We surmised that the instruction was founded on the statement in Casfsnada that "a person liable under section 186.22(a) must aid and abet a separate felony offense committed by gang members" (Castenada, supra, 23 Cal.4th at p. 750, 97 Cal.Rptr.2d 906, 3 P.3d 278), but concluded that Castenada did not stand for the proposition that only an aider and abettor is subject to liability under section 186.22, subdivision (a). In doing so, we concluded "it would be a misconstruction of the statutory language and a perversion of the legislative intent to read the
subdivision in such a narrow manner." (Ngoun, supra, 88 Cal.App.4th at p. 437, 105 Cal.Rptr.2d 837.) As a result, we suggested that the CALJIC committee review this instruction with an eye toward revising it, which the committee apparently did. CALJIC No. 6.50 was changed to clarify that direct participation in gang-related crime, as well as aiding and abetting, falls within the scope of section 186.22, subdivision (a). The element was revised to read: "That person either directly and actively committed or aided and abetted [another] [other] member[s] of that gang in committing the crime[s] of ____." (CALJIC No. 6.50 (Jan.2005 ed.) p. 236.)
Similarly, the problem here lies in the CALCRIM instruction, which defines the elements of "willfully assist[ing], further[ing], or promot[ing] a crime" only in terms of the defendant acting as an aider and abettor. However, as we concluded in Ngoun, section 186.22, subdivision (a), cannot be read so narrowly and includes perpetrators of felonious gang-related criminal conduct. (Ngoun, supra, 88 Cal. App.4th at p. 437, 105 Cal.Rptr.2d 837.) We suggest the CALCRIM committee review and consider revising this instruction.
In sum, requiring an additional "separate" felony would defeat the Legislature's purpose of making gang participation itself a substantive crime, which is demonstrated by the commission of, or aiding and abetting, even a single instance of gang-related felonious conduct. Further, there is no authority to support the contention that felonious criminal conduct must be a predicate crime listed in section 186.22, subdivision (e). We therefore reject Salcido's argument that the instruction was erroneous, as well as his contention that the evidence was insufficient to support a finding that he aided and abetted another gang member in the commission of predicate felony offenses.
*923 II. Sufficiency of the evidence[**]
DISPOSITION
The judgment is affirmed.
LEVY and HILL, JJ., concur.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II.
[1] All further statutory references are to the Penal Code.
[2] Section 186.22, subdivision (a), provides: "Any person who actively participates in any criminal street gang with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years."
[3] The version of CALCRIM No. 1400 in effect at the time of Salcido's trial provided: "The defendant is charged [in Count ____] with participating in a criminal street gang. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant actively participated in a criminal street gang; [¶] 2. When the defendant participated in the gang, (he/she) knew that members of the gang engage in or have engaged in a pattern of criminal gang activity; [¶] AND
[¶] 3. The defendant willfully assisted, furthered, or promoted felonious criminal conduct by members of the gang.
"Active participation means involvement with a criminal street gang in a way that is more than passive or in name only. [¶] [The People do not have to prove that the defendant devoted all or a substantial part of (his/her) time or efforts to the gang, or that (he/she) was an actual member of the gang.]
" [¶] [A criminal street gang is defined in another instruction to which you should refer.]
" [¶] [A criminal street gang is any ongoing organization, association, or group of three or more persons, whether formal or informal: [¶] 1. That has a common name or common identifying sign or symbol; [¶] 2. That has, as one or more of its primary activities, the commission of insert one or more crimes listed in Pen.Code, § 186.22(e)(1)-(25) >; [¶] AND [¶] 3. Whose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity.]
"In order to qualify as a primary activity, the crime must be one of the group's chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the group.
"[A pattern of criminal gang activity, as used here, means: [¶] 1.[The] (commission of [,]/ [or] attempted commission of[,]/[or] conspiracy to commit[,]/[or] solicitation to commit[,]/[or] conviction of[,]/[or] (Having/having) a juvenile petition sustained for commission of) [any combination of two or more of the following crimes]: insert one or more crimes listed in Pen.Code, § 186.22(e)(1)-(25) >; [¶] 2. At least one of those crimes was committed after September 26, 1988; [¶] 3. The most recent crime occurred within three years of one of the earlier crimes; [¶] AND [¶] 4. The crimes were committed on separate occasions or were personally committed by two or more persons.]
"The People need not prove that every perpetrator involved in the pattern of criminal gang activity, if any, was a member of the alleged criminal street gang at the time when such activity was taking place, [¶] [The crimes, if any, that establish a pattern of criminal gang activity, need not be gang-related.] [¶] [If you find the defendant guilty of a crime in this case, you may consider that crime in deciding whether one of the group's primary activities was commission of that crime and whether a pattern of criminal gang activity has been proved.] [¶] [You may not find that there was a pattern of criminal gang activity unless all of you agree that two or more crimes that satisfy these requirements were committed, but you do not have to all agree on which crimes were committed.]
"As the term is used here, a willful act is one done willingly or on purpose.
"Felonious criminal conduct means committing or attempting to commit [any of] the following crime[s]: insert felony or felonies by gang members that the defendant is alleged to have furthered, assisted, or promoted >.
"To decide whether a member of the gang [or the defendant] committedinsert felony or felonies listed immediately above and crimes from Pen.Code, § 186.22(e)(1)-(25) inserted in definition of pattern of criminal gang activity >, please refer to the separate instructions that I (will give/have given) you on (that/ those) crime[s],
"To prove that the defendant willfully assisted, furthered, or promoted a crime, the People must prove that: [¶] 1. A member of the gang committed the crime; [¶] 2. The defendant knew that the gang member intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the gang member in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the commission of the crime.
"Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. [¶] [If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor.]
"[A person who aids and abets a crime is not guilty of that crime if he or she withdraws before the crime is committed. To withdraw, a person must do two things: [¶] 1. He or she must notify everyone else he or she knows is involved in the commission of the crime that he or she is no longer participating. The notification must be made early enough to prevent the commission of the crime; [¶] AND [¶] 2. He or she must do everything reasonably within his or her power to prevent the crime being committed. He or she does not have to actually prevent the crime. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not withdraw. If the People have not met this burden, you may not find the defendant guilty under an aiding and abetting theory.]" (Judicial Council of Cal., Criminal Jury Instructions (2006).)
[**] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276139/ | 57 Cal.Rptr.3d 663 (2007)
149 Cal.App.4th 645
SAN JOAQUIN RAPTOR RESCUE CENTER et al., Petitioners,
v.
COUNTY OF MERCED et al., Respondents,
Jaxon Enterprises, Inc., Real Party in Interest.
No. F050232.
Court of Appeal of California, Fifth District.
April 10, 2007.
As Modified April 11, 2007.
*667 Law Offices of Donald B. Mooney, Donald B. Mooney, Davis, and Marsha A. Burch, for Petitioners.
James Fincher, County Counsel and Walter Wall, Deputy County Counsel, for Respondents.
Herum Crabtree Brown, Thomas H. Terpstra and Brett S. Jolley, Stockton, for Real Party in Interest.
Certified for Partial Publication[*]
OPINION
KANE, J.
San Joaquin Raptor Rescue Center, Protect Our Water and Le Grand Community Association (collectively Petitioners) appeal from the trial court's judgment denying their petition for writ of mandate. Specifically, Petitioners challenge the decision by the Merced County Board of Supervisors (County) to certify the environmental impact report (EIR) and approve the conditional use permit (CUP) regarding a proposed expansion of an aggregate mining operation near the community of Le Grand (the Project). Petitioners contend *668 the County's action was invalid under the California Environmental Quality Act (CEQA)[1] because the EIR allegedly failed to accurately describe the Project and its baseline environmental setting, failed to adequately address and/or mitigate certain environmental impacts, and failed to adequately consider project alternatives. The trial court denied the petition. We will reverse with instructions to grant the writ of mandate.
BACKGROUND FACTS
Real party in interest, Jaxon Enterprises Inc. (Jaxon), is owner of an existing aggregate mine and processing operation about four miles northeast of Le Grand in Merced County. The aggregate materials extracted from the site are used primarily for construction projects such as road construction. In 2000, Jaxon applied for CUP No. 99009 to allow for an expansion of the existing mine. The main purpose of the proposed expansion was to increase the acreage available for mining from 90 to 304 acres, so as to extend the productive life of the mine. This lateral expansion would increase the available aggregate reserves from 2.5 million tons to 7.8 million tons. It was estimated that the original 90-acre site could remain productive for only another 5 years, but with the additional acreage the mine could continue producing for about 30 years. Jaxon's proposal also sought to authorize occasional nighttime operations. The requested CUP would modify an already existing permit, known as CUP 3603, which had been issued in 1993.
After conducting an initial study, County planning staff determined that an EIR would be necessary and a Notice of Preparation was issued. In April of 2004, a draft EIR (DEIR) was prepared and released for public review and comment.
The DEIR sets forth the project description in section 2.1 through 2.6 thereof. In section 2.1, the Project is initially described in the following terms: "The expansion includes the mining of additional acreage, but is not proposed to substantially increase daily or annual production." (Italics added.) It is said the Project will provide for an additional 30 years of production at an average annual production of about 260,000 tons per year. Later, in section 2.3, the Project is described to allow a maximum production level of 500,000 tons per year. By way of comparison, section 2.4 discloses that the average production rate over the past four years was only 240,000 tons per year, and the highest production rate reported was 312,890 tons per year in 1999.
The purposes of the Project are summarized in section 2.3 of the DEIR as follows: "The Applicant proposes to excavate and process 7.8 million tons ... of aggregate material by: (1) expanding an existing aggregate surface mine laterally from 90 ± acres to 304 ± .acres;, (2) deepening the mining depth up to a maximum of 23 feet below surface elevation throughout the mine excavation area (except that areas to be developed into stockponds may be excavated to a depth of 38 feet); (3) modifying reclamation phasing from five to 20 ± acre increments; (4) adopting a revised reclamation plan with dryland grazing as the end use (the same end use as that set forth in the existing reclamation plan); and. (5) revising the Project's hours of operation to include occasional batch plant and loadout nighttime operations. The Project, as proposed, would involve surface disturbance to about 214 acres of 304 acres within the 471-acre site owned by the Applicant." *669 The discussion of Project purposes includes a summary of geological studies indicating that there are limited reserves of concrete aggregate in the Merced County area.
Section 2.3 of the DEIR also sets forth Project objectives. Here, we find the provision for a "maximum" level of annual production of 500,000 tons per year. It is not specified whether 500,000 tons per year represents a significant increase in mining activity or production.
Some additional information regarding annual production is furnished in section 2.4 of the DEIR, which describes Project "operations" as follows:
"The Applicant estimates that there are sufficient reserves at the Project site to support mining of between 200,000 and 500,000 tons of aggregate material annually for up to 30 years. The Project duration could be altered somewhat through the influence of market conditions,' geologic factors, and technological improvements.... Although the mining rate would not exceed 500,000 tons per year, it could, in at least some years, be substantially less than that, according to historic mine production rates provided by the Applicant. Since taking over ownership of the Project in 1998, production at the existing mine has ranged from a low of 44,742 tons of marketed aggregate in that year to a high of 312,890 tons of marketed aggregate the following year (1999). Over the past three years, annual production rates have ranged from 150,541 tons to 305,911 tons. The average production over the past four years is about 240,000 tons per year. This is consistent with the Applicant's anticipated average yearly production rate of 260,000 tons, which is, in turn, consistent with an anticipated 30-year life-of-mine based on the known reserves of 7.8 million tons."
The DEIR also describes why the Project includes authorization of occasional nighttime operations. It states that typical mine operating hours would be from 7:00 a.m. to 6:00 p.m., Monday through Friday. However, flexibility to operate during nighttime hours was being requested by the applicant because some public agency projects (such as Caltrans road improvement projects) operate during nighttime hours to prevent traffic congestion associated with lane closures, or to undertake emergency road repairs. Such road improvement projects may require materials to be supplied at night. If nighttime operations were approved, the asphaltic batch plant and truck load-out "could periodically operate 24-hours per day, and up to seven days per week for limited periods to service these projects." According to the DEIR, the duration of these expanded hours of operation "would depend on the duration of the projects being supplied." However, excavation from the mine area and rock crushing operations would occur "only during daylight hours."
The final EIR (FEIR) was issued in October of 2004. In addition to responses to public comments, the FEIR revised the air quality section of the EIR by analyzing emissions based on peak mining operations of 550,000 tons per year,[2] rather than the figure of 260,000 tons per year (as used in the DEIR).
On November 3, 2004, the planning commission approved the Project and certified *670 the EIR. Petitioners appealed those determinations to the board of supervisors. On December 21, 2004, the board of supervisors considered and denied the appeal, approved the Project (CUP 99009), certified the EIR, and adopted its CEQA Findings of Fact, Mitigation and Monitoring Program and Statement of Overriding Considerations.
Petitioners then filed their petition for writ of mandate with the trial court, challenging the approval of the Project under CEQA. The trial court denied the petition and entered judgment for respondents. This appeal followed.
DISCUSSION
I. CEQA Standard of Review
"In reviewing challenges to the certification of an EIR or approval of a CUP, the court must determine whether the lead agency abused its discretion by failing to proceed in a manner required by law or by making a determination or decision that is not supported by substantial evidence." (Association of Irritated Residents v. County of Madera (2003) 107 Cal. App.4th 1383, 1390, 133 Cal.Rptr.2d 718 (Irritated Residents); § 21168.5.) "Courts are `not to determine whether the EIR's ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document.' [Citations.]" (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1197, 22 Cal. Rptr.3d 203 (Bakersfield Citizens).) "Provided the EIR complies with CEQA, the [b]oard may approve the project even if it would create significant and unmitigable impacts on the environment." (Irritated Residents, supra, 107 Cal.App.4th at p. 1390, 133 Cal.Rptr.2d 718.) The appellate court reviews the administrative record independently; the trial court's conclusions are not binding on it. (Ibid.)
"An appellate court's review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court's: the appellate court reviews the agency's action, not the trial court's decision; in that sense appellate judicial review is de novo. [Citations.] We therefore resolve the substantive CEQA issues on which we granted review by independently determining whether the administrative record demonstrates any legal error by the County and whether it contains substantial evidence to support the County's factual determinations." (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427, 53 Cal.Rptr.3d 821, 150 P.3d 709.)
"An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project." (Laurel Heights Improvement Assn. v. Regents of University of-California (1988) 47 Cal.3d 376, 405, 253 Cal.Rptr. 426, 764 P.2d 278.) "When assessing the legal sufficiency of an EIR, the reviewing court focuses on adequacy, completeness and good faith effort at full disclosure." (Irritated Residents, supra, 107 Cal.App.4th at p. 1390, 133 Cal.Rptr.2d 718.) Although CEQA "requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive." (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal. App.4th 20, 26, 82 Cal.Rptr.2d 398.) Therefore, noncompliance with CEQA's information disclosure requirements is not necessarily reversible; prejudice must be shown. (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1197-1198, 22 Cal. *671 Rptr.3d 203; § 21005, subd. (b).) "[A] prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the goals of the EIR process." (Irritated Residents, supra, 107 Cal. App.4th at p. 1391, 133 Cal.Rptr.2d 718.) In such event, the error is deemed prejudicial "regardless whether a different outcome would have resulted if the public agency had complied with the disclosure requirements." (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1198, 22 Cal. Rptr.3d 203.)
"The substantial evidence standard is applied to conclusions, findings and determinations. It also applies to challenges to the scope of an EIR's analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions." (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1198, 22 Cal. Rptr.3d 203.) Substantial evidence is defined in the CEQA Guidelines[3] as "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached." (Guidelines, § 15384, subd. (a).) Substantial evidence includes facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts. (§ 21082.2, subd. (c); Guidelines, § 15384, subd. (b).) It does not include argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly inaccurate or erroneous, or evidence of social or economic impacts which do not contribute to, or are not caused by, physical impacts on the environment. (§ 21082.2, subd. (c).)
II. Project Description and Environmental Setting
A. Project Description
Petitioners challenge the adequacy of the Project description. Under CEQA, a "project" means "the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment...." (Guidelines, § 15378, subd. (a) [emphasis added]; see also § 21065.) It refers to the underlying "activity" for which approval is being sought. (Guidelines, § 15378, subd. (c).) The entirety of the project must be described, and not some smaller portion of it. (Santiago County Water District v. County of Orange (1981) 118 Cal.App.3d 818, 829-831, 173 Cal.Rptr. 602 [EIR for mining operation failed to include extension of water facilities, obscuring from view an important aspect of the project].) The Guidelines specify that every EIR must set forth a project description that is sufficient to allow an adequate evaluation and review of the environmental impact. (Guidelines, § 15124.) Among other things, a project description must include a clear statement of "the objectives sought by the proposed project," which will help the Lead Agency "develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision makers in preparing findings or a statement of overriding considerations, if necessary." (Guidelines, § 15124, subd. (b).) The description must also include "[a] general description of the project's technical, economic, and environmental characteristics, *672 considering the principal engineering proposals if any and supporting public service facilities." (Guidelines, § 15124, subd. (c).)
"[A]n accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR." (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 199, 139 Cal. Rptr. 396.) However, "[a] curtailed, enigmatic or unstable project description draws a red herring across the path of public input." (Id. at p. 197-198, 139 Cal. Rptr. 396.) "[O]nly through an accurate view of the project may the public and interested parties and public agencies balance the proposed project's benefits against its environmental cost, consider appropriate mitigation measures, assess the advantages of terminating the proposal and properly weigh other alternatives." (City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1454, 263 Cal. Rptr. 340.)
The Petitioners primarily argue that the Project description set forth in the DEIR is unstable and misleading because it indicates, on the one hand, that no increases in mine production are being sought, while on the other hand, it provides for substantial increases in mine production if the Project is approved. We agree.
As noted, the DEIR represents that the Project will expand the available acreage and allow for nighttime operations, but will not significantly increase annual production. It states: "The expansion includes the mining of additional acreage, but is not proposed to substantially increase daily or annual production." (Emphasis added.) To highlight its "no increase" position, the DEIR reports that average production over the past four years was 240,000 tons per year, and indicates the Project, will provide for an additional 30 years of mining at an estimated average production of about 260,000 tons per year. In contrast to these numbers, however, the proposed CUP would allow for annual mine production of 550,000 tons per year, which is more than double the production average over the prior four years. In other words, despite assurances to the contrary, the Project includes a substantial increase in mine production.
Although the DEIR does also indicate that Jaxon's mine would have a peak capacity of 550,000 tons per year (as mined) or 500,000 tons per year (as marketed), such statements were entirely inconsistent with the assurances elsewhere that there would be no increase in production. By giving such conflicting signals to decision-makers and the public about the nature and scope of the activity being proposed, the Project description was fundamentally inadequate and misleading.[4]
*673 Moreover, it is clear that this curtailed or shifting project description affected the EIR process. That is, much of the analysis assumes there will be production levels of only 260,000 tons per year. For example, in the traffic impact section of the DEIR, the discussion of long-term structural road impacts addressed only the effect of 260,000 tons per year, with no discussion of the impact of higher production levels. In the FEIR, one of the responses to comments indicates a comparison was being made between 260,000 tons per year and 240,000 tons per year, suggesting that only a slight increase in production was being considered. (See FEIR, section 4.2, response to 6-13). Additionally, both the DEIR and FEIR state there will be no increase in groundwater pumping or consumptive water usage between the current operations and the proposed Project. However, it is not explained how there could be a major production increase to 550,000 tons per year without any increase in consumptive water usage. (See FEIR, section 4.1, responses to 2-8; and DEIR, section 3.3.) It appears that the underlying assumption in the water analysis, and throughout much of the EIR, is that the Project does not provide for substantial increases in annual mine production from prior levels.
These curtailed and inadequate characterizations of the Project were enough to mislead the public and thwart the EIR process. As noted in County of Inyo v. City of Los Angeles, supra, 71 Cal.App.3d 185, 139 Cal.Rptr. 396, when an EIR contains unstable or shifting descriptions of the project, meaningful public participation is stultified. "A curtailed, enigmatic or unstable project description draws a red herring across the path of public input." (Id. at p. 197-198, 139 Cal.Rptr. 396 [holding that although the "ill-conceived, initial project description" did not carry over into impacts section of EIR, the shifting description did "vitiate the city's EIR process as a vehicle for intelligent public participation"].)
The public hearings reflect similar confusion about the level of production allowed under the Project. Before the Board of Supervisors, the Project applicant made the following assurances: "We're not talking about producing more material than we're producing now.... Our quantity that we're asking to be permitted to mine is the same as we've been permitted to mine in the past." Similarly, Mr. Steubing of Resource Design Technology, Inc., the consulting firm assisting in the EIR preparation, testified that "there's no additional operations. It's just existing baseline." Mr. Steubing had previously informed the planning commission that "there's nothing new from existing conditions." He even indicated regarding Jaxon's mine that "[t]hey are permitted to mine up to 550,000 tons a year." This later statement conflicts with the FEIR's response to comments, in which the County reported the existing permit would allow 240,000 tons per year.
In City of Santee v. County of San Diego, supra, 214 Cal.App.3d 1438, 263 Cal.Rptr. 340, the Court of Appeal rejected an EIR for inconsistencies in the project description. In that case, the EIR evaluated a prison project using variable figures to determine the duration of the temporary facilityi.e., from three years to seven years to an indefinite length. Concluding that the EIR did not contain an accurate, stable and finite project description, the court held that the EIR could not "adequately apprise all interested parties of the true scope of the project for intelligent weighing of the environmental consequences." (Id. at pp. 1454-1455, 263 Cal.Rptr. 340.) The same is true in the present case. The inconsistent description, which portrayed the Project as *674 having "no increase" in mine production while at the same time allowing for substantial increases above recent historical averages, failed to adequately apprise all interested parties of the true scope and magnitude of the Project. For this reason, we conclude that the EIR in this case was insufficient as an informational document for purposes of CEQA, amounting to a prejudicial abuse of discretion.
Because the failure to provide a stable and consistent project description amounted to a prejudicial abuse of discretion, we conclude that the Board's approval of CUP 99009 and its certification of the EIR were invalid and must be set aside. In the event that CUP 99009 is pursued further, we hold that a new EIR will have to be prepared and circulated, in order to clearly specify in the project description that the project includes and allows significantly increased production (over recent annual averages) up to a peak level of 550,000 tons per year.
B. Baseline Environmental Setting
Petitioners also contend that the EIR failed to adequately describe the existing environmental setting. "Before the impacts of a project can be assessed and mitigation measures considered, an EIR must describe the existing environment. It is only against this baseline that any significant environmental effects can be determined." (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 952, 91 Cal.Rptr.2d 66.) The Guidelines state that an EIR must include a description of "the physical environmental conditions in the vicinity of the project," which constitute the "baseline physical conditions" for measuring environmental impacts. (Guidelines, § 15125, subd. (a).)
Although the baseline environmental setting must be premised on realized physical conditions on the ground, as opposed to merely hypothetical conditions allowable under existing plans (see Christward Ministry v. Superior Court (1986) 184 Cal.App.3d 180, 186-187, 228 Cal.Rptr. 868 [general plan amendment]; City of Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal.App.3d 229, 246-247, 227 Cal.Rptr. 899 [rezoning]), established levels of a particular use have been considered to be part of an existing environmental setting. (See Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1274, 1278, 119 Cal.Rptr.2d 402 [existing airport operations]; Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th 238, 242, 82 Cal.Rptr.2d 436 [established traffic levels from mine operations]; Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1196, 31 Cal. Rptr.3d 901.) "Environmental conditions may vary from year to year and in some cases it is necessary to consider conditions over a range of time periods." (Save Our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal. App.4th 99, 125,104 Cal.Rptr.2d 326).
In Fairview Neighbors v. County of Ventura, the court allowed traffic numbers occurring when the mine operated at peak capacity pursuant to the prior CUP to be the "baseline," since mine operations were widely variable depending on market factors. The peak capacity (over 810 truck trips) was actually achieved in years prior, so it was not a mere hypothetical situation. The court rejected the appellant's claim that actual existing traffic numbers (at the time of the EIR) had to be used. (Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th at pp. 242-243, 82 Cal.Rptr.2d 436.) Thus, in the situation of an existing mine operation, a description of baseline environmental setting may reasonably include the mine's established levels of permitted use.
*675 In the instant case, the respondents claim to have used a four-year average of mine operations (i.e., 240,000 tons per year) as the baseline of the existing mine operations at the 90-acre site. Conversely, the Petitioners contend that a more accurate baseline would be 100,000 tons per year, because (according to petitioners) only 100,000 tons per year was permitted to be mined under the prior CUP (No. 3603). We agree with respondents that there is nothing in the administrative record to support the Petitioner's contention that there was a 100,000 tons per year restriction under the prior permit. In fact, CUP 3603 was not part of the administrative record below, and when respondents attempted to introduce CUP 3603 into the record in order to remove any doubt, the Petitioners objected.
Since established usage of the property may be considered to be part of the environmental setting (Fairview Neighbors, supra, 70 Cal.App.4th 238, 82 Cal.Rptr.2d 436), and such usage was adequately shown by the annual production averages, we believe there is substantial evidence in the record to support the County's use of 240,000 tons per year as a baseline for existing conditions on the 90-acre site.
The real problem, however, is that the EIR does not clearly identify the baseline assumptions regarding mine operations in its description of the existing environmental setting. In the introductory section of the DEIR a generalized statement is made that "existing conditions" include "the currently permitted extraction of aggregate materials" and processing activities, but the existing conditions are not defined or quantified. And although the four-year production average of 240,000 was apparently used in the impacts section(s) of the EIR, nowhere is that fact plainly stated. Such an omission clearly falls short of the requirement of a good faith effort at full disclosure. (Guidelines, § 15151.) The decisionmakers and general public should not be forced to sift through obscure minutiae or appendices in order to ferret out the fundamental baseline assumptions that are being used for purposes of the environmental analysis. "An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project." (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 405, 253 Cal. Rptr. 426, 764 P.2d 278.) "The data in an EIR must not only be sufficient in quantity, it must be presented in a manner calculated to adequately inform the public and decision makers, who may not be previously familiar with the details of the project." (Vineyard Area Citizens for Responsible Groivth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 442, 53 Cal.Rptr.3d 821, 150 P.3d 709.)
This failure to clearly and conspicuously identify the baseline assumptions for purposes of describing the existing environmental setting further degraded the usefulness of the EIR and contributed to its inadequacy as an informational document. Accordingly, we hold that in any new EIR prepared in connection with this proposed Project, the baseline must not be obscured, but must be plainly identified in the EIR.
III. Specific Environmental Impacts and Mitigation Measures
Next, Petitioners have argued that the EIR failed to adequately analyze impacts on water, traffic, air quality and biological resources.
"The fundamental purpose of an EIR is 'to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely *676 to have on the environment.' (§ 21061.)" (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th 412, 428, 53 Cal.Rptr.3d 821, 150 P.3d 709.) Thus, an EIR must adequately identify and analyze the significant environmental effects of the proposed project. (§ 21100, subd. (b); Guidelines, § 15126.2, subd. (a).) In assessing the impact of a proposed project on the environment, the lead agency normally examines the "changes" in existing environmental conditions in the affected area that would occur if the proposed activity is implemented. (Guidelines, § 15126.2, subd. (a); and see, Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273, 289, 41 Cal.Rptr.3d 420.) "Direct and indirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to both the short-term and long-term effects." (Guidelines, § 15126.2, subd. (a).) The degree of detailed analysis necessary in an EIR is summarized in the Guidelines as follows: "An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible.... The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure." (Guidelines, § 15151.)
As a preliminary matter, we agree with Petitioners that it was necessary in this case for the EIR to include some analysis of the impacts that would result from peak levels of production. Peak mine operations of 550,000 tons per year was an aspect of the Project itself, as well as a reasonably foreseeable use, and thus the environmental effects thereof clearly had to be analyzed in the EIR. (See Christward Ministry v. Superior Court, supra, 184 Cal.App.3d at p. 194, 228 Cal.Rptr. 868 [EIR must analyze entire development that is allowed by project's approval]; Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at pp. 396-399, 253 Cal.Rptr. 426, 764 P.2d 278 [reasonably foreseeable future activity must be described and analyzed in EIR].) Consequently, one aspect of the analysis of environmental impacts that had to be considered in the EIR was the effect on the existing environmental conditions of substantial increases in annual mine production above baseline levels, including consideration of the reasonable potential of mine operations at peak levels of operation.
We now turn to the adequacy of the EIR's analysis of particular impacts.
A. Impact of the Project on Water
It is claimed by Petitioners that the EIR fails to adequately analyze impacts of the Project to groundwater supplies and surface water quality. We will begin with the discussion of groundwater impacts.
1. Groundwater
The EIR outlines that water used during mining and processing is "currently (and will continue to be) a combination of accumulated rainwater in the bottom of the excavation areas, flows from the perched groundwater table in the near-surface alluvium, `and an on-site well." Overall water used for the Project is estimated as follows: "Although total Project water usage is about 500 gallons per minute (gpm), 10 hours per day (on average) most of this water is continuously recycled through the ponds and processing system. *677 Make-up water comes from the on-site well.... In the summer months, the groundwater inflows to the excavation cease and the well becomes the principle source of make-up water. The maximum consumptive use of pumped water occurs from July through September." Annual consumptive water use is estimated as follows:
"Based on information provided by the Applicant, current consumptive water use involves groundwater pumping at the rate of about 100 gpm for 10 hours per day, two days per week from July through September. Spread over a five-day work week, this consumptive water usage amounts to about 24,000 gallons per day, or approximately 2.2 acre-feet per month. There are no records of consumptive use or data on well production at other times of the year from which to derive the annual consumptive use in acre-feet per year; however, it can be estimated assuming consumptive use is proportional to the monthly climatic deficit (evaportranspiration [Eto] minus precipitation). By this method, the annual consumptive use is estimated to be 13.1 acre-feet per year (see calculation sheet in Appendix G-2, Estimated Consumptive Use by Month.)"
The EIR then concludes that "[n]o increase in consumptive water use is anticipated as a result of the mine expansion." The rationale provided for this conclusion is that when nighttime operations occur, rates of water usage would not increase because "nighttime operations would simply replace the usual daytime operations." Also, in the case of 24-hour operations for specific road or emergency projects, "the only processing equipment to operate longer-than-normal hours would be the asphaltic batch plant, which uses no water." Process water usage "is associated entirely with crushing operations."
The EIR then addresses, under Impact 3.3-2, the concern that the Project may have a potential impact to deep groundwater supplies and could result in an increase in groundwater pumping during summer months, a time when existing groundwater is also under high demand from neighboring wells. The EIR notes that known deep groundwater occurs in a five-foot thick zone of sand layered between impermeable clay sediments at a depth of over 200 feet below ground surface. Although this aquifer is said to be "poorly characterized," its "storage capacity and interconnections to aquifer(s) tapped by neighboring wells are unknown although it is apparent that the existing operation and neighboring uses have coexisted in a sustainable fashion for some time." Thus, EIR concludes, "it can be assumed that pumping demand is less than or equal to recharge." For purposes of this conclusion, "the existing operation, including its current groundwater use, is considered part of the baseline condition for this analysis." The EIR acknowledges that well pumping is not metered, so the existing water extraction rate is based on estimates provided by the applicant.
The EIR notes than an increase in overall pumping rates and quantities could cause groundwater levels in neighboring wells to be adversely affected. However, the EIR reasons that because crushing activities would not occur at night, any increase in the hours of operation would not increase water usage. Thus, "water consumption is anticipated to remain at the current level."
Finally, the EIR concedes there is potential for stress on the deep aquifer during the summer months when agricultural pumping is also at a maximum. Allegedly, this would not be a "project-related change, but rather an ongoing condition." *678 Further, the EIR notes that the aquifer has not been depleted so far, and has apparently recharged from year to year. "In general, a thin aquifer that is temporarily depressurized from short periods of high rates of pumping will typically recover when pumping ceases, so long as overall withdrawals balance with aquifer recharge." The EIR assumes that will continue to be the case here "given the historical sustainability of the deep groundwater supply."
However, the EIR recognizes that any increase in consumptive Project water usage "could affect the ability of the deep groundwater aquifer to sustain other existing consumptive uses," which is a potentially significant impact. Therefore, as a mitigation measure, it was required that the applicant "[m]aintain the current Project consumptive use (estimated by the Applicant as pumping 20 hours/week at 100 gpm or less from July through September.)" (Emphasis omitted.)
Petitioners contend that the analysis of groundwater impact is inadequate because it fails to take into account and analyze the impact of substantially increased levels of production at the mine. We fully agree. The conclusion in the EIR that water consumption will remain at current baseline levels, even after production is dramatically increased to 550,000 tons per year, is not supported by substantial evidence or reasoned analysis. Moreover, the EIR's analysis fails to show any correlation between the amount of water used and the level of production, and fails to identify how much groundwater would be used during baseline operations (i.e., 240,000 tons per year) in comparison to how much groundwater would be used during peak operations (i.e., 550,000 tons per year). Without such information, the impact of the project on groundwater supplies cannot be fully or accurately evaluated.
A figure is put forward in the EIR as an estimate of consumptive use of groundwateri.e., 2.2 acre-feet per month in July-September or approximately 13.1 acre-feet per year.[5] The estimate is apparently based on rates of groundwater pumping observed in July through September.[6] We conclude this information, without more, was inadequate to inform the public and decisionmakers regarding groundwater impacts. It is entirely unclear what these numbers actually represent for purposes of meaningfully evaluating the impact of the Project. As already noted, it is not shown whether the estimate of groundwater use per year is based on peak production, baseline production, or something else.[7] If it represents baseline production levels, what additional consumptive water use would likely occur during peak production, and in particular, how much additional groundwater would be needed to support the Project at that higher level of production? And what would be the impact of such increased groundwater pumping (when operating at peak production) on other water users who rely on the aquifer, including in dry rainfall years? Without such information, the true impact of the project on groundwater supplies cannot be *679 adequately evaluated. The EIR must include "facts to `evaluate the pros and cons of supplying the amount of water that the [project] will need.'" (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 431, 53 Cal.Rptr.3d 821, 150 P.3d 709; Santiago County Water Dist. v. County of Orange, supra, 118 Cal.App.3d at p. 829, 173 Cal.Rptr. 602 [EIR inadequate where impact of supplying water to mine not adequately analyzed].) Such facts have not been provided here.
Finally, although the EIR included as a mitigation measure that the Project must "maintain the current Project consumptive use (estimated by the Applicant as pumping 20 hours/week at 100 gpm or less from July through September)"[8] (emphasis omitted), a mitigation measure cannot be used as a device to avoid disclosing project impacts. (Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, 195-197, 55 Cal.Rptr.2d 625.) An EIR must analyze the impacts of providing water to the entire proposed project (id. at p. 206, 55 Cal.Rptr.2d 625), which in this case includes peak production of 550,000 tons per year. Since maximum production levels (approximately double the baseline) are specifically authorized by the proposed CUP, the EIR should disclose how much groundwater pumping would be needed to support such operations and analyze the impacts thereof. Under the circumstances, CEQA does not allow the EIR to simply assume, without substantial evidence or reasoned analysis, that the same amount of consumptive water will be used at maximum production as is currently being used.
For all the reasons stated above, we conclude that the EIR failed to adequately analyze the impact of the Project on groundwater supplies.
2. Surface Water
Petitioners contend that the EIR fails to adequately analyze impacts to surface water as a result of the Project's wastewater discharges. We agree. The EIR describes the mine operation as a "zero-discharge facility." It provides that the Project's conformance with the California Water Resource Control Board's Storm Water program will "result in the settlement of all accumulated runoff from operations in the on-site retention ponds," from which ponds the waste water will be continuously reused in mine operations. The EIR details the surface water hydrology, including the ponding system which will protect against run-off of waste water. Impacts and mitigation measures regarding waste discharge are described. However, it appears that only baseline production levels were considered. There is no analysis of the impact on surface water quality, including impacts from wastewater discharge, of significantly increased mine production. As with the analysis of groundwater impacts, the EIR's discussion of surface water quality was deficient because it failed to identify and analyze the impact (if any) of peak mine production.
B. Impact of the Project on Traffic
Petitioners also contend the EIR failed to adequately analyze traffic impacts of the Project. Increased production at *680 the mine would logically mean an increase in the number and frequency of the heavy 25-ton-capacity trucks traversing over the available roads used as haul routes. Petitioners primarily argue the EIR failed to adequately consider the impact upon traffic and road conditions of the mine's peak production rate of 550,000 tons per year, as authorized under the Project.
In discussing traffic impacts, the EIR considered annual traffic volumes generated by the Project based on the assumption of estimated average production of 260,000 tons per year, or 20,800 total truck trips (10,400 entering and 10,400 exiting). These numbers were used in evaluating the annual distribution of Project traffic on roads using the likely haul routes. As explained in the FEIR, an accepted methodology used by the California Department of Transportation to evaluate traffic index and design of pavement structural sections is to utilize average annual traffic volumes. The FEIR found it unnecessary to consider higher volumes of traffic, stating that "worst case" annual production levels would not occur every year.
This estimated annual average (i.e., 260,000 tons per year) was used in the analysis of the traffic index. The traffic index is a measure of equivalent single axle loads expected over the design period, and is apparently used to evaluate whether the Project could physically degrade the County roadways. Because of expected wear of Project-related truck traffic on sections of Le Grand Road and White Rock Road, the impacts to these roads would be potentially significant. Consequently, as a mitigation measure the applicant (Jaxon) was required to reconstruct portions of Le Grand Road and White Rock Road to a performance standard of 8.5 on the design traffic index, in order to mitigate the impacts to the pavement structural section. (DEIR, Mitigation Measure 3.5-2a.)
Petitioners argue that in showing impacts from annual distribution of Project-related traffic on affected roads, the EIR should have used truck volumes based on maximum annual production of 550,000 tons per year. We note the purpose of this particular analysis in the EIR was to evaluate impacts to the road physical structures over long periods of time (i.e., 20 years) based on estimated annual truck volumes. (See FEIR, Response 6-37.) That being the case, it was not improper in this instance for the EIR to consider an estimated average annual production of 260,000 tons, as one aspect of the analysis. However, that does not mean the analysis was complete, or that more was not required, under the unique circumstance here of huge variation in the Project description. In light of the widely-shifting Project description in this case, which includes production levels as high as 550,000 tons per year, we hold that some analysis should have been made of long-term impacts on road physical structures based on the reasonable potential of greater frequency or regularity of annual mine operations at or near the maximum production level of 550,000 tons per year.[9] Since this was not done, we agree with the Petitioners that the EIR was inadequate in analyzing this impact.
In other aspects of the analysis, the EIR did consider traffic volumes that would correspond to maximum production levels. In analyzing peak traffic issues, the EIR *681 used the mine's maximum capacity per day of 5,000 tons of material. Hypothetically, if production were maintained at that daily level throughout the year, it would substantially exceed the Project's maximum of 550,000 tons per year. As explained in the FEIR, the number was used in the intersection analysis of peak traffic as a "worse case scenario" which would be expected to occur few times, if any, during the life of the Project. By contrast, an average production day was estimated as only 1,000 tons of material.
In regard to said peak traffic analysis, petitioners attack the assumption in the EIR that Project trucks would be evenly spaced throughout the eight-hour work dayi.e., exactly 24 trucks entering the site empty per hour, and exactly 24 trucks leaving the site full per hour. According to petitioners, this assumption would possibly lead to underestimating potential impacts to traffic congestion during peak traffic hours. We reject petitioners' argument. The EIR appears to have merely divided the daily truck volume to obtain a per hour average over the course of the work day. Petitioners offer no reason why this would be an unreasonable methodology in this case. Their argument is essentially that greater specificity was needed i.e., that the EIR should have specified whether trucks sometimes enter and leave the site "unevenly" over time. We hold that such minute detail was not required in the analysis in question. The information provided was sufficiently detailed to allow reasoned analysis of the relevant impacts on peak traffic. It was not necessary that the analysis be so exhaustively detailed as to include every conceivable study or permutation of the data. (See Guidelines, § 15151 [information need not be exhaustive]; and Irritated Residents, supra, 107 Cal.App.4th at p. 1396, 133 Cal.Rptr 718 ["CEQA does not require a lead agency to conduct every recommended test and perform all recommended research to evaluate the impacts of a proposed project"].)
As summarized by respondents, the petitioners have basically reiterated certain objections set forth in a study conducted by a consultant (Mr. Brohard) of LASER, a group opposed to the project. This includes additional contentions regarding methodology, such as that Project trip generation should have been spread over a 270-day period, rather than 365 days, and that the month of September should not have been used to conduct traffic counts to determine existing traffic volumes. In each instance, the petitioners have failed to establish any showing that the County acted improperly in relying on the independent traffic study in the DEIR, and on the responses in the FEIR, rather than on Mr. Brohard's study, in determining whether the EIR adequately addressed traffic impacts. As this court has explained: "When experts in a subject areas dispute the conclusions researched by other experts whose studies were used in drafting the EIR, the EIR need only summarize the main points of disagreement and explain the agency's reasons for accepting one set of judgments instead of another." (Irritated Residents, supra, 107 Cal. App.4th at p. 1391, 133 Cal.Rptr.2d 718.)
To summarize, we conclude that the traffic impacts were not adequately analyzed in the EIR with respect to road structural impacts over time (including traffic index based on annual traffic volumes), due to the shifting and confusing Project description, thereby causing the EIR to fail in its role as an informational document. However, in all other respects the traffic analysis was adequate.
C. Impacts of Project on Air Quality
Petitioners argue that the EIR failed to adequately analyze the impact of *682 the Project on air quality. For the reasons noted below, we find the petitioners' argument to be without merit.
The DEIR contained a detailed and independent air quality analysis utilizing standards of significance established in the CEQA Guidelines. It described the existing environment and air basin, and analyzed potential impacts of the Project on air quality related to emissions (including pollutants), particulate matter, dust and odors. The air quality analysis was subjected to extensive comments, including claimed computational errors by LASER's air quality consultant (Petra Pless), which were responded to in detail in the FEIR.
However, in response to comments that the DEIR failed to adequately address air quality impacts of maximum production of the mine under the Project, the FEIR provided an "Errata" which included a revised air quality section with specific analysis of the impacts on air quality of mine production of 550,000 tons per annum. The DEIR had only analyzed air quality impacts based on the projected average production of 260,000 tons per year. Although the quantity of some emissions was higher in the Errata than originally set forth in the DEIR, the level of each individual and cumulative emission category remained below San Joaquin Valley Air Pollution Control District thresholds of significance. Thus, even at the maximum production levels, the FEIR concluded potential impact of the Project on air quality remained less than significant.
Petitioners argue that the revised air quality analysis set forth in the Errata should have been recirculated. We disagree. Because both the analysis in the DEIR and the Errata in the FEIR show the air quality impact to be less than significant, we agree with respondents that the standards for recirculation set forth at CEQA Guidelines section 15088.5 were not triggered. As the FEIR explains: "None of the changes provided in section 3.2 of this Final EIR contain significant new information that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the Project on a feasible way to mitigate or avoid such an effect."
D. Impact of the Project on Biological Resources
Petitioners next attack the adequacy of analysis in the EIR of impacts on biological resources and wildlife habitat. In particular, the discussion of vernal pools and burrowing owl habitats is challenged.
The EIR describes the presence of vernal pools and ephemerally wet drainage swales within certain areas of the Project site and vicinity. After identifying the potential impacts of the Project, it spells out a number of mitigation measures to prevent or minimize such impacts. The thrust of petitioners' objections concern the adequacy of these mitigation measures. As discussed below, we find that the mitigation measuresalthough adequate in other respectsimproperly defer formulation of significant aspects of mitigation, and therefore fail to comply with CEQA's informational requirements.
Numerous mitigation measures are specified in the EIR regarding the vernal pools and special-status species that are expressly presumed to exist there. To begin with, the vernal pools and swales would remain outside the limits of mining. The Project footprint would maintain a minimum 25-foot setback from the nearest vernal pools and ephemerally wet drainage swales. According to the analysis in the EIR, this 25-foot setback "should be adequate to maintain the hydrological integrity of these potentially important habitat types *683 once Mitigation Measure 3.3-3 (installation of a cut-off trench) is implemented." To prevent potentially significant impacts on vernal pools if erosion or sediments from the mine area reached the vernal pools, various erosion controls and monitoring measures are required as further mitigation measures. Preconstruction mitigation measures are also specified to allow mobile animal species to vacate the excavation areas prior to mining. Finally, although the initial reconnaissance or field survey did not detect the presence of certain special-status species in the area of the vernal pools, the EIR presumes that such species are present, and therefore imposes an additional 300-foot buffer. Protocol-level surveys will be conducted prior to any mining activity within 300-feet of vernal pool/swale areas. No mining activity within the 300foot buffer would occur until specified conditions are met, namely (a) a protocol survey is conducted showing the absence of such species or (b) implementation of a Management Plan. developed by a qualified biologist in consultation with appropriate jurisdictional agencies including California Department of Fish & Game and U.S. Fish and Wildlife Service. (See DEIR, Mitigation Measures 3.6-la-c, 3.6-2a-d, 3.6-3a-c, 3.6-4a-b and 3.6.6a-b.)
As indicated by the above summary, the EIR allows some specifics of the overall mitigation effort to be developed in response to future protocol studies, prior to allowing phases of mining within the 300foot setback. For example, under mitigation measure 3.6-3b, if the required spring season protocol survey shows existence of special-status plant species within or adjacent to the vernal pools, a Management Plan must be prepared by a qualified biologist to "maintain the integrity and mosaic of the vernal pool habitat." The plan will likely include such options as periodic mowing, rotational grazing, and weed abatement, as indicated in the EIR, and would require the concurrence of applicable regulatory agencies, including U.S. Fish and Wildlife Service and California Department of Fish and Game. It is only after such a Management Plan is developed and implemented that Jaxon could apply to the County for modification of the 300-foot buffer, leaving only the 25-foot setback. A similar approach would be used if special-status plant species are observed in the study of the grassland areas.
The Petitioners argue that because the mitigation measures allow for future formulation of land management aspects of the mitigation measures, the EIR impermissibly defers the development of important mitigation measures until after project approval. CEQA Guidelines, section 15126.4, subdivision (a)(1)(B) specifies as follows: "Formulation of mitigation measures should not be deferred until some future time. However, measures may specify performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way." According to Petitioners, to allow land management plans to be developed later fails to adequately inform the public and decisionmakers, prior to project approval, of the nature and efficacy of the proposed mitigation measures that will be undertaken. (See Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 307, 248 Cal.Rptr. 352.)
The respondents counter that this is not a deferral of mitigation. To the extent that some aspects of mitigation may be developed in subsequent management plans, it is (according to respondents) merely an example of using performance standards or criteria as expressly permitted under section 15126.4. (Guidelines, § 15126.4, subd. (a)(1)(B); and Sacramento Old City Assn. v. City Council of Sacramento *684 (1991) 229 Cal.App.3d 1011, 1028-1029, 280 Cal.Rptr. 478 [court upheld EIR that set forth a range of mitigation measures to offset severe traffic impacts where performance criteria would have to be met, even though some further study was needed and EIR did not specify which measures had to be adopted by city].)
On balance, we find that respondent's position is unpersuasive. Although a generalized goal of maintaining the integrity of vernal pool habitats is stated (see mitigation measure 3.6-3b), no specific criteria or standard of performance is committed to in the EIR. Nor does the EIR present several alternative mitigation measures, in which a selection of one or more of the described options is to be made after further study. Rather, after first presuming that special-status species will be present in or near the vernal pools,[10] the EIR leaves the reader in the dark about what land management steps will be taken, or what specific criteria or performance standard will be met, if this presumption is confirmed by the later protocol studies. The success or failure of mitigation efforts in regard to impacts on such vernal pool species may largely depend upon management plans that have not yet been formulated, and have not been subject to analysis and review within the EIR. The fact that the future management plans would be prepared only after consultation with wildlife agencies does not cure these basic errors under CEQA, since no adequate criteria or standards are set forth.
We recognize there are circumstances in which some aspects of mitigation may appropriately be deferred. "`Deferral of the specifics of mitigation is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed and possibly incorporated in the mitigation plan. [Citation.] On the other hand, an agency goes too far when it simply requires a project applicant to obtain a biological report and then comply with any recommendations that may be made in the report. [Citation.] If mitigation is feasible but impractical at the time of a general plan or zoning amendment, it is sufficient to articulate specific performance criteria and make further approvals contingent on finding a way to meet them.' [Citation.]" (Endangered Habitats League Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 793, 32 Cal.Rptr.3d 177; see also, Riverwatch v. County of San Diego (1999) 76 Cal.App.4th 1428, 1448-1450, 91 Cal. Rptr.2d 322 [a deferred approach may be appropriate where it is not reasonably practical or feasible to provide a more complete analysis before approval and the EIR otherwise provides adequate information of the project's impacts]; Sacramento Old City Assn. v. City Council of Sacramento, supra, 229 Cal.App.3d at p. 1028-1029, 280 Cal.Rptr. 478 [deferral of agency's selection among several alternatives based on performance criteria was appropriate]; 1 Kostka & Zischke, Practice Under The California Environmental Quality Act (Cont.Ed.Bar 2006), § 14.10, p. 702-706.) Here, however, no reason or basis is provided in the EIR for the deferral to a future management plan (or plans) of these particular mitigation measures, even though the EIR expressly presumes that special-status species will be present in the vernal pool or swale areas. Accordingly, we conclude that the analysis of mitigation measures with respect to special-status species in the vernal pool areas was inadequate, since it improperly deferred formulation *685 of land management aspects of such mitigation measures.
As to the EIR's mitigation measures concerning burrowing owl habitat, we reach the same conclusion. The EIR admits such owls have nested in the area in the past (observed in 1999). The EIR presumes that burrowing owls nest and winter on the Project site, and states that the Project may cause direct and indirect impacts that are significant. In mitigation measure 3.6-7a, an area of 6.5 acres of grassland habitat with suitable burrows must be preserved, as recommended by the California Department of Fish and Game and the Burrowing Owl Consortium. Further, at least 30 days prior to commencement of ground disturbance before each phase, a protocol survey for burrowing owls shall be conducted. If they are present, Jaxon must implement a plan for passive relocation of wintering owls, and maintain a minimum 250-foot buffer around nesting owls until a qualified biologist has determined that all young have fledged and are foraging independently. Finally, a qualified biologist shall prepare a management plan for the burrowing owl preserve, which shall be approved by California Department of Fish and Game prior to any mining and implementation of the proposed plan. Although many valid mitigation measures are described, no reason is given for deferral of the land management plan concerning the burrowing owl preserve, nor are any criteria or standards of performance set forth. We conclude the EIR improperly deferred formulation of this mitigation measure as well.
Finally, Petitioners note that in mitigation measure 3.6-2d, if the Project causes loss to functioning and value of vernal pool areas, there must be mitigation in the form of replacement by either creating vernal pools or swales within the conservation area on site, or by off-site purchase of wetland banking credits. Since there are no wetlands conservation banks present in the County of Merced, the latter alternative is unavailable. The FEIR acknowledges this fact, but emphasizes that the other optioni.e., creating new vernal pools in the conservation area onsiteremains a reasonable mitigation measure. And if mitigation credits become available within the watershed, the FEIR further explains, then "such acquisition would become an additional available measure." In light of this clarification in the FEIR, petitioners have failed to demonstrate this particular mitigation measure is inadequate or unsubstantiated.
IV.-VII.[**]
VIII. Prejudice
"`When the informational requirements of CEQA are not complied with, an agency has failed to proceed in a "manner required by law." [Citations.] If the deficiencies in an EIR "preclude informed decisionmaking and public participation, the goals of CEQA are thwarted and a prejudicial abuse of discretion has occurred."` [Citation.]" (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1220, 22 Cal.Rptr.3d 203.)
In the present case, the EIR was fundamentally flawed due to a curtailed and shifting Project description, which meant that the public and decisonmakers were not adequately informed about the full scope and magnitude of the Project. The unstable description carried over into the impacts analysis, resulting in an understated and inadequate discussion of water and traffic impacts, as discussed herein. Compounding these errors, the baseline assumptions were not clearly identified. *686 Additionally, the EIR improperly deferred formulation of mitigation measures with respect to protection of biological habitats of special-status species, and provided inadequate responses to certain comments. These deficiencies in the EIR were prejudicial because they precluded informed decisionmaking and public participation. Therefore, certification of the EIR was a prejudicial abuse of discretion.
As a result, the Project approvals must likewise be voided. As this court summarized in Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1221, 22 Cal.Rptr.3d 203: "The Guidelines unequivocally require the lead agency to certify a legally adequate final EIR prior to deciding whether or not to approve or carry out a contested project (Guidelines, §§ 15089 to 15092.) `[T]he ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decisionmakers, and the public, with the information about the project that is required by CEQA.' [Citations.] Thus, the project approvals and associated land use entitlements also must be voided."
DISPOSITION
The judgment is reversed, and the action is remanded to the trial court with directions to grant the writ of mandate vacating County's certification of the EIR and its approval of the Project (including CUP 99009), based on the violations of CEQA as set forth herein. The trial court shall, in addition, issue orders that the Project may be considered for potential reapproval by the County, if a new, legally adequate EIR is prepared, circulated and certified in compliance with CEQA, including opportunity for public comment. Upon consideration of such new EIR, and in accordance with all applicable laws, the County may then determine whether or not to re-approve the Project. The County may require modification of the Project and/or additional mitigation measures as conditions of approval. Petitioners are awarded costs on appeal.[12]
HARRIS, Acting P.J., and DAWSON, J., concur.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts IV, V, VI, and VII.
[1] Public Resources Code section 21000 et seq. All further statutory references are to the Public Resources Code unless otherwise indicated.
[2] According to Table 2.0-3 in the EIR, the maximum annual production rate (as mined) would be 550,000 tons, while the maximum annual production rate (as marketed) would be 500,000 tons. Some of the materials mined are not marketable, thus the higher number for the total amount mined. Here, the revised air quality section identified the annual maximum production by referencing the as mined amount.
[3] CEQA is augmented by state CEQA Guidelines, codified at title 14 of the California Code of Regulations section 15000 et, seq. The state CEQA Guidelines will be referred to herein as Guidelines.
[4] Although section 2.4 of the DEIR mentions both numbers, rather than bringing greater clarity, it only adds to the confusion. It assures the reader that although maximum production is 500,000 tons per year, "in at least some years" mine production "could ... be substantially less than that." In the same paragraph the DEIR insists that average annual production will be only 260,000 tons. However, in order to achieve a 260,000 ton average, a 500,000 ton production year would have to be offset by an almost zero production year (or offset by several years production of substantially less than 260,000 tons). This portion of the DEIR suggests that there will be 500,000 ton production years, but in at least some years mine production "could ... be substantially less than that." The "could be" language implies there is only the possibility that there will be years in which production will be substantially less than 500,000 tons and yet simple arithmetic establishes that for every year in which production exceeds 260,000 tons, let alone approaches 500,000 tons, a correspondingly lower production year (or years) would be required in order to achieve no more than a 260,000-ton average over the 30-year period. These statements are at best confusing and worst self-contradictory.
[5] The annual amount is apparently arrived at after adjusting for monthly climatic variations.
[6] The information was apparently provided by the applicant. Petitioner argues that the EIR may not rely on this information merely because of its source. We disagree. Our focus is on the adequacy of the information provided in the EIR, not the fact that it came from the applicant.
[7] To put it differently, there is no substantial evidence to support a conclusion that the estimate represents either groundwater use when the project is operating at baseline production levels or when it is operating at peak production levels.
[8] How this mitigation measure would feasibly be monitored and enforced is not indicated. There is apparently no meter at the mine's groundwater well. Even if the groundwater use estimate were not doubtful and inadequate, the question of how future groundwater use could be monitored and maintained at that level is a complete enigma. We also note it is unclear whether the mitigation measure applies only to groundwater pumping from July through September, or to an annual total.
[9] The EIR itself indicates that maximum levels of production are expected to occur (DEIR, section 2.4), and it appears reasonable that construction needs and resource scarcity may at times drive production to relatively high levels. On the other hand, we agree with respondents that it was unnecessary to assume maximum production would occur every year.
[10] The EIR states: "The first tier [of the EIR's impact analysis] presumes that all potential special-status vernal pool plant and animal species do occur within the areas of suitable habitat on site."
[**] See footnote *, ante.
[12] The petition for writ of mandate requested an award of attorney's fees pursuant to Code of Civil Procedure section 1021.5. We offer no opinion regarding petitioners' entitlement to such fees. All such issues are remanded to the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276142/ | 57 Cal.Rptr.3d 126 (2007)
149 Cal.App.4th 243
In re Edward B. PRESCOTT.
No. D047936.
Court of Appeal of California, Fourth District, Division One.
April 3, 2007.
*128 Edward B. Prescott, in pro. per., and Harry Zimmerman, under appointment by the Court of Appeal, for Petitioner.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and David Delgado-Rucci, Deputy Attorney General, for Respondent.
*127 AARON, J.
I.
INTRODUCTION
Defendant Edward Prescott, by petition for writ of habeas corpus, challenges his criminal conviction on one count of corporal injury to a spouse, on the ground that he was denied his Sixth Amendment right to the assistance of counsel during a critical stage of his criminal proceedings. Prescott contends that his right to the assistance of counsel was violated when, after Prescott indicated a desire to withdraw his guilty plea, his court-appointed counsel provided a report to the trial court in which he concluded that there existed no basis for Prescott to file a motion to withdraw the guilty plea, and revealed privileged communications between himself and Prescott.
We conclude that counsel violated Prescott's attorney-client privilege by revealing to the court and prosecutor the content of *129 his conversations with Prescott. We further conclude that Prescott was effectively deprived of the assistance of counsel when his appointed counsel not only failed to advocate on Prescott's behalf, but advocated against Prescott's interests. Such complete deprivation of counsel is one of the rare circumstances in which prejudice to the defendant is presumed, and reversal is required.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Prescott was charged with residential burglary (Pen.Code, §§ 459, 460), inflicting corporal injury on his spouse (Pen.Code, § 273.5, subd (a)), and battery (Pen.Code, § 242). The information alleged that Prescott had previously been denied probation on five occasions (Pen.Code, § 203, subd. (e)(4)), and had served two prior prison terms (Pen.Code, § 667.5, subd. (b)).
On June 30, 2004, Prescott entered a guilty plea to the charge of corporal injury to a spouse, in exchange for the dismissal of the remaining charges and allegations. Prescott was to receive a stipulated sentence of two years in prison.
Shortly after he entered his guilty plea, Prescott called his attorney and indicated that he wanted to withdraw his plea. Because Prescott's trial attorney believed there was a conflict since she was "the one that did the plea" at a hearing on the matter, the trial court appointed another attorney, Robert James, to "represent Mr. Prescott and investigate whether or not there is a legal basis to withdraw his plea."
On August 13, 2004, after having investigated the matter and having interviewed his client, James reported to the court his conclusion that there was no basis for a motion to withdraw the plea. James provided written copies of his report to the trial court, the prosecutor, and another unspecified individual.[1] In that report, James stated,
"I have reviewed Mr. Prescott's contentions. I believe that his mental abilities were unimpaired by the medication he received. I believe that he was not coerced into accepting the plea bargain. Rather, he knowingly accepted the offered plea bargain because he believed it was in his best interest to do so. I believe that there is no basis for a motion to withdraw his plea. I hereby decline to file such a motion."
After James offered his conclusions, the court granted Prescott's request to proceed in propria persona with regard to the motion, and relieved James as attorney of record. Prescott subsequently filed in pro per a motion to withdraw his guilty plea. During the hearing on his motion, Prescott testified that he had been confused at the time he entered the guilty plea, and that he had needed more time to talk with his attorney. He testified that he entered the guilty plea because he was afraid he might receive a long sentence if he did not plead guilty. Prescott also said that he had taken the drug Vicodin during the 24-hour period before he entered the plea. He stated that his trial counsel had rushed him into entering a guilty plea, and that he was confused and did not have enough time to consider the charges. According to Prescott, he was hysterical at the time he entered the guilty plea. He said he had *130 to be taken to the hospital after the entered his plea because he passed out.
The court denied Prescott's motion and sentenced Prescott to prison for the stipulated two-year middle term. The court denied Prescott's request for a certificate of probable cause.
Prescott nevertheless pursued an appeal. This court affirmed the judgment of the trial court on the basis that without a certificate of probable cause, a defendant cannot challenge the merits of a guilty plea on appeal. (People v. Prescott, 2005 WL 3473326 (Dec. 19, 2005, D045540) [nonpub. opn.].)[2] However, we also voiced concern regarding "the trial court's practice of appointing counsel to represent a defendant who expresses a desire to withdraw a guilty plea, and then permitting the appointed counsel to violate the attorneyclient privilege and provide the court with a report as if the appointed attorney were not the representative of a defendant but a referee." (People v. Prescott, supra, D045540 at p. 3.)
Prescott filed a petition for writ of habeas corpus on January 30, 2006, and filed a supplemental petition for writ of habeas corpus on May 5, 2006. This court requested that the People file a response to the supplemental petition, which the People did by letter brief dated June 7, 2006. Prescott filed a reply by letter brief dated June 22, 2006.
III.
DISCUSSION
A. The attorney-client privilege
Prescott contends that Attorney James disclosed confidential, privileged communications between the two of them in the report James filed with the court. Evidence Code section 952 defines confidential communications between clients and attorneys as including "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence...." The client is the holder of the privilege, and may refuse to disclose, or prevent another from disclosing, confidential communications between the client and his or her lawyer. (Evid.Code, §§ 953, 954.)
In his written report to the court, Attorney James revealed a number of things Prescott had told him during the course of their interview, including Prescott's feelings regarding the circumstances under which he entered his guilty plea and the time pressure he felt. James provided a detailed summary in which he paraphrased a number of statements Prescott made during their discussions.
The People do not dispute Prescott's contention that James disclosed privileged communications.[3] Instead, the *131 privilege by failing to "object to James providing copies of communications he and Prescott had to the court and the prosecution at the time that James informed the trial court he would not be filing a motion to withdraw the guilty plea." In making this assertion, the People rely on Evidence Code section 912, subdivision (a), which provides in part, "Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege." Considering the peculiar nature of these proceedings, we find the People's argument meritless.
"[A] waiver is the intentional relinquishment of a known right." (BP Alaska Exploration, Inc. v. Superior Court (1988) 199 Cal.App.3d 1240, 1252, 245 Cal.Rptr. 682.) There is nothing to suggest that Prescott intentionally gave up his right to keep his discussions with counsel private. Based on this record, one cannot reasonably conclude that Prescott knew he could have objected to the disclosure of privileged communications, and despite this knowledge, chose not to do so. There is no reason to expect that Prescott, a criminal defendant whose appointed attorney was the one intentionally violating Prescott's attorney-client privilege, would have any idea that he had the right to object to his attorney's conduct, much less that he would be penalized for failing to do so. Prescott's counsel should have been assisting him in protecting his privileged communications. Prescott was denied the assistance of counsel in making an objection to the revelation of his privileged communications because it was his own attorney who was revealing them. Because it was Prescott's own counsel who intentionally violated Prescott's attorney-client privilege, thereby leaving Prescott without the assistance of counsel, we conclude that Prescott's failure to object to his attorney's revelation of privileged communications does not amount to a waiver of that privilege.
B. By acting as an advocate for the court rather than for his client, Prescott's appointed counsel provided ineffective assistance to a degree that amounts to a deprivation of counsel
1. Attorney James's representation fell below an objective standard of reasonableness
Prescott contends that he was deprived of his right to the effective assistance of counsel when James filed a report with the court in which he disclosed confidential attorney-client communications and set forth his reasons for concluding that there was no basis for Prescott to file a motion to withdraw his guilty plea.
Both the United States Constitution and the California Constitution provide that a criminal defendant has the right to the assistance of counsel in his defense. (King v. Superior Court (2003) 107 Cal.App.4th 929, 937, 132 Cal.Rptr.2d 585 (King), citing U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15.) "`An accused's right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases "are necessities, not luxuries." Their presence is essential because they are the means through which the other rights of the person on trial are secured. Without counsel, the right to trial itself would be "of little avail," as this Court has recognized repeatedly. "Of all the rights that *132 an accused person has, the right to De represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.'" [Citation.]" (King, supra, 107 Cal.App.4th at pp. 937-938, 132 Cal.Rptr.2d 585, fns. omitted.)
"The right to counsel `is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty.... The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not "still be done.'" [Citation.]" (King, supra, 107 Cal.App.4th at p. 937, 132 Cal.Rptr.2d 585, citing Johnson v. Zerbst (1938) 304 U.S. 458, 462, 58 S.Ct. 1019, 82 L.Ed. 1461.)
"The special value of the right to the assistance of counsel explains why `[it] has long been recognized that the right to counsel is the right to the effective assistance of counsel.' [Citation.]" (United States v. Cronic (1984) 466 U.S. 648, 654, 104 S.Ct. 2039, 80 L.Ed.2d 657 (Cronic).) A defendant has the right to the effective assistance of counsel at all critical stages of the criminal proceeding, and that portion of the proceeding during which a defendant attempts to withdraw a previously entered plea is a critical stage. (See People v. Brown (1986) 179 Cal.App.3d 207, 214, 224 Cal.Rptr. 476 (Brown) [defendant's constitutional right to the assistance of counsel extends to the making of a motion to withdraw a guilty plea].)
In order to establish that he has been denied the effective assistance of counsel, a defendant must show that his attorney's representation fell below an objective standard of reasonableness and that any deficiencies in the attorneys performance were prejudicial to him. (Strickland v. Washington (1984) 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.) We first consider the reasonableness of Attorney James's representation of Prescott.
"Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. [Citation.]" (Strickland, supra, 466 U.S. at p. 688, 104 S.Ct. 2052.)[4] "From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. [Citation.]" (Ibid., italics added.) "Thus, the adversarial process protected by the Sixth Amendment requires that the accused have `counsel acting in the role of an advocate.' [Citation.]" (Cronic, supra, 466 U.S. at p. 656,104 S.Ct. 2039.)
When Prescott sought to file a motion to withdraw his guilty plea, he was entitled to the assistance of an attorney who recognized and carried out the duty to advocate his cause. (Cf. King, supra, 107 Cal.App.4th at p. 950, 132 Cal.Rptr.2d 585 [defendant entitled to attorney with duty to advocate his cause at hearing regarding defendant's forfeiture of right to assistance of counsel].) Prescott had decided that he wanted to move to withdraw his guilty plea, a decision that was his to make. (Brown, supra, 179 Cal.App.3d at p. 215, *133 224 Cal.Rptr. 476)[5] Once a defendant determines that he wishes to withdraw his guilty plea, defense counsel has a duty to present a motion to withdraw, unless the motion "in counsel's good faith opinion, is frivolous or when to do so would compromise accepted ethical standards." (Id. at p. 216, 224 Cal.Rptr. 476.)[6]
Brown does not provide guidance as to how a defense attorney who holds a good faith opinion that a motion to withdraw would be frivolous or would compromise the attorney's ethical standards should conduct himself or herself. Nevertheless, under no circumstances is it appropriate to reveal a client's confidential communications and/or advocate in direct contravention of the client's wishes. A simple statement indicating that counsel has a good faith basis for refusing to file a motion to withdraw a plea would be sufficient to protect counsel's interests in such a circumstance. However, that is not what occurred here. Rather, Attorney James filed a two and a half page report in which he revealed confidential communications between himself and Prescott, and presented all of the reasons supporting his conclusion that Prescott had no basis for filing a motion to withdraw his guilty plea. Attorney James further violated the duty of loyalty by offering evidence contradicting his client's claims about his use of medication prior to entering the plea evidence James was able to obtain only because of his role as Prescott's attorney.[7] James concluded his report by stating that he did not believe any of his client's contentions, and that he did not believe there was any basis for a motion to withdraw the plea, thus clearly advocating against his client's cause. This conduct clearly fell below an objective standard of reasonableness.
2. Attorney James's conduct was prejudicial to Prescott
Under Strickland, in order to make out a claim of ineffective assistance of counsel, a defendant must establish not only that counsel's performance fell below an objective standard of reasonableness, but also that any deficiencies in the attorney's *134 performance were prejudicial to him. (Strickland, supra, 466 U.S. at p. 688, 104 S.Ct. 2052.) In a small subset of cases, however, reversal is required because the circumstances surrounding the representation were "so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." (Cronic, supra, 466 U.S. at p. 658, 104 S.Ct. 2039.) Those circumstances in which prejudice should be presumed include situations where there was a complete denial of counsel, where counsel entirely failed to subject the prosecution's case to meaningful adversarial testing, or in situations where despite the fact that counsel is available to assist the accused during trial, the likelihood that any lawyer could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial. (Id at pp. 658-659, 104 S.Ct. 2039.) The presumption of prejudice is thus generally reserved for situations in which counsel has wholly failed to function as the client's advocate. (Florida v. Nixon (2004) 543 U.S. 175, 189, 125 S.Ct. 551, 160 L.Ed.2d 565.)
We conclude that the circumstances in this case warrant reversal under the holding in Cronic, supra, 466 U.S. at page 659, 104 S.Ct. 2039. Not only did Attorney James fail to function as Prescott's advocate during Prescott's attempt to withdraw his guilty plea, but James actively advocated against Prescott's wishes and interests, refuting one by one Prescott's contentions as to why he should be allowed to withdraw his guilty plea. This "representation" was worse than having no counsel at all. (See King, supra, 107 Cal.App.4th at p. 949, 132 Cal.Rptr.2d 585.) The complete denial of counsel during a critical stage in the proceedings necessitates automatic reversal. (Cronic, supra, 466 U.S. at p. 659, 104 S.Ct. 2039.)
In response to reason's arguments, me People assert that James's conduct in this situation is akin to the conduct of the attorney whose actions were challenged in Bell v. Cone (2002) 535 U.S. 685, 695, 122 S.Ct. 1843, 152 L.Ed.2d 914 (Bell). In Bell, defense counsel failed to offer mitigating evidence during a capital sentencing hearing. Instead, counsel referred the jury to the mitigating evidence they had heard during the guilt phase of the trial. (Id at p. 697,122 S.Ct. 1843.) The United States Supreme Court concluded that the attorney's conduct in that situation did not give rise to per se prejudice as outlined in Cronic, supra, 466 U.S. at page 658, 104 S.Ct. 2039, because the attorney's failure to test the prosecutor's case was not a "complete" failure. (Bell, supra, 535 U.S. at pp. 696-697, 122 S.Ct. 1843.) The People suggest that if the United States Supreme Court did not see fit to apply a standard of per se prejudice to an attorney's "failure to present [any] mitigating evidence at all in a death penalty case," there is no reason to apply a per se prejudice standard here, where the mistake made by counsel, as described by the People, was "ma[king] no argument for the motion to withdraw Prescott's guilty plea, and informing] the court he had no basis to do so."
The People's description of James's error fails to accurately portray the nature of the challenged conduct. As we have already discussed, Attorney James did more than simply fail to make an argument in support of the motion to withdraw Prescott's guilty plea. James actively argued against allowing Prescott to file the motion to withdraw his plea, and violated Prescott's attorney-client privilege in the process. There is no failure of representation more complete than an attorney advocating against his client.
*135 The People also suggest that Prescott was not harmed by James's report, since the trial court did "not simply impose judgment" upon receiving the report, but, rather, allowed Prescott to make the motion to withdraw his guilty plea on his own. "The trial court stated in great detail why it was denying the motion, none of which was based on what James had told the court." However, the two main arguments Prescott relied on in support of his motion to withdraw the guilty plea involved topics James covered in his report. Prescott argued that his trial attorney had not adequately advised him regarding the plea offer and its consequences, and that he was unable to properly grasp the consequences of pleading guilty as a result of having taken Vicodin prior to accepting the plea offer. James's report comments on both of these topics, and concludes that neither provides a basis to withdraw the plea. Thus, although the court did not resort to citing James's report or its specifics, there is no way of knowing the extent to which the report might have influenced the trial court in its consideration of Prescott's pro per motion to withdraw his guilty plea.
Further, contrary to the People's argument, it is not enough that the trial court allowed Prescott to represent himself in filing and arguing the motion to withdraw his plea. Prescott clearly wanted to be represented by counsel during these proceedings. He specifically requested that the court appoint an attorney to represent him in a motion to withdraw his guilty plea. He did not seek to represent himself in the motion until after James failed to advocate on his behalf. Prescott was denied the effective assistance of counsel in a manner so antithetical to our adversary system that we must presume he was prejudiced:
"`The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free.' [Citation.] It is that `very premise' that underlies and gives meaning to the Sixth Amendment. It `is meant to assure fairness in the adversary criminal process.' [Citation.] Unless the accused receives the effective assistance of counsel, `a serious risk of injustice infects the trial itself.' [Citation.]" (Cronic, supra, 466 U.S. at pp. 655-656, 104 S.Ct. 2039, fns. omitted.)
The trial court created this unfortunate situation by appointing James as Prescott's counsel for the purpose of determining whether there was any ground for bringing a motion to withdraw Prescott's guilty plea. Appointing an attorney ostensibly to act as counsel for the defendant, but whose directive from the court is to determine whether there exists a basis for a motion to withdraw a guilty plea, sets up an inappropriate dynamic by which the court in effect asks defense counsel to act in the court's interest, not the interest of the client. The role the court asked defense counsel to play in this situationa neutral "referee" of sortsinherently conflicts with defense counsel's primary duty to advocate on the client's behalf.
Equally troubling is James's decision to step into the role the court requested of him. Obviously, an attorney need not file a motion he or she believes is frivolous or that would compromise the attorney's ethical standards. However, if James did not believe there was a basis for a motion to withdraw Prescott's guilty plea, he could have simply declined to file a motion, and informed the court that in his opinion, doing so would be frivolous. James could have done this without violating the attorney-client *136 privilege or advocating a position contrary to his client's interests.
IV.
DISPOSITION
The judgment is vacated and the matter is remanded to the trial court. In the interest of justice, the matter shall be reassigned to a different judge. The trial court is directed to strike from the record the document entitled "Report of Attorney" filed on August 4, 2004.
Prescott may file a new motion to withdraw his guilty plea. Any new motion shall be filed within 60 days of the issuance of the remittitur. If Prescott requests additional time to file a motion to withdraw his plea, the court may grant the request for good cause, at its discretion.
If Prescott wishes to be represented by an attorney to assist him in assessing his options and making a decision as to whether to file a new motion to withdraw his guilty plea and/or in preparing a new motion to withdraw his guilty plea, the trial court shall appoint new counsel to represent Prescott.[8]
If Prescott indicates that he does not wish to file a motion to withdraw his guilty plea, or does not file a motion to withdraw his guilty plea or seek additional time to file a motion to withdraw his guilty plea within 60 days of the issuance of the remittitur, the trial court shall reinstate the original judgment.
This opinion is final as to this court five days after it is filed. (See Cal. Rules of Court, rule 8.264(b)(3).)
WE CONCUR: McCONNELL, P.J., and NARES, J.
NOTES
[1] At the hearing, James stated, "I have provided the court with a report, and I have given a copy to the prosecutor and to Mr. Prescott and to Mr. Dennis Kerr." It is unclear from the record who Mr. Kerr is, or what his involvement is in the case.
[2] We cite to the unpublished opinion of this court pursuant to California Rules of Court, rule 8.1115(b) (formerly rule 977(b)), which allows citation to an unpublished opinion when the opinion is "relevant under the doctrines of law of the case, res judicata, or collateral estoppel...."
[3] There can be no dispute that an attorney owes his client a duty to protect the confidentiality of their discussions. "Protecting the confidentiality of communications between attorney and client is fundamental to our legal system. The attorney-client privilege is a hallmark of our jurisprudence that furthers the public policy of ensuring `"the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense." [Citation.]' [Citation.]" (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1146, 86 Cal.Rptr.2d 816, 980 P.2d 371 (SpeeDee Oil Change).) "To this end, a basic obligation of every attorney is `[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.' [Citation.]" (Ibid.)
[4] "Attorneys have a duty to maintain undivided loyalty to their clients to avoid undermining public confidence in the legal profession and the judicial process. [Citation.]" (SpeeDee Oil Change, supra, 20 Cal.4th at p. 1146, 86 Cal.Rptr.2d 816, 980 P.2d 371.)
[5] "Although, as previously stated, an attorney representing a criminal defendant has the power to control the court proceedings [citations], that power may not be exercised to deprive a defendant of certain fundamental rights. [Citations.] [f] We view the decision to seek withdrawal of a plea of guilty, just as the decision to enter such plea, as one which the defendant is entitled to make. [Citations.] The defendant's attorney may, and when appropriate, should advise against the decision, but the defendant should have the final word on whether to seek withdrawal." (Brown, supra, 179 Cal.App.3d at p. 215, 224 Cal.Rptr. 476.)
[6] Recognizing the "resultant intrusion on counsel's judgment in requiring [counsel] to yield to [a] defendant's decision" (Brown, supra, 179 Cal.App.3d at p. 215, 224 Cal.Rptr. 476), the Brown court referred to the Supreme Court's comments in People v. Frierson (1985) 39 Cal.3d 803, 816-817, 218 Cal.Rptr. 73, 705 P.2d 396: "`Such impingement on defense counsel's actions, however, results any time a defendant chooses to exercise a personal right-such as the right to testify or the right to trial by jury-over counsel's contrary advice. Numerous decisions explain that, in such a situation, the attorney's obligation is simply to provide the best representation that he can under the circumstances. [Citations.] Further, the authorities also establish that when a defendant insists on a course of action despite his counsel's contrary warning and advice, he may not later complain that his counsel provided ineffective assistance by complying with his wishes. [Citations.]' " (Brown, supra, 179 Cal.App.3d at p. 215, 224 Cal.Rptr. 476.)
[7] Prescott signed a medical release form that allowed James to obtain Prescott's medical records. Prescott subsequently questioned the veracity of James's summary of Prescott's medical records.
[8] We recognize that Prescott has already served his two-year sentence and that he is currently on parole. Thus, if Prescott files a new motion to withdraw his" guilty plea and the court grants the motion, Prescott would be facing a trial and the potential for additional prison time if found guilty. If Prescott determines that he longer wishes to pursue a motion to withdraw his guilty plea, he is not obligated to do so. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276152/ | 57 Cal.Rptr.3d 237 (2007)
149 Cal.App.4th 674
The PEOPLE, Plaintiff and Respondent,
v.
Grant MACKLEM, Defendant and Appellant.
No. D046806.
Court of Appeal of California, Fourth District, Division One.
April 10, 2007.
As Modified on Denial of Rehearing May 2, 2007.
*240 David L. Polsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez and Raymond M. DiGuiseppe, Deputy Attorneys General, for Plaintiff and Respondent.
HUFFMAN, Acting P.J.
A jury convicted 18-year-old defendant Grant Macklem of first degree murder in the death of his 17-year-old ex-girlfriend Sarah Beagles, and also of a charge of assault with a deadly weapon (plastic pipe) arising out of a jailhouse attack on Ray Doane, with whom Macklem was incarcerated pending trial on the Beagles matter. (Count 1, Pen-Code,[1] § 187, subd. (a); count 5, § 245, subd. (a)(1).) Other charges arising on the day of the murder (forcible sex offenses) were dismissed during trial for insufficient evidence, on a defense motion (§ 1118.1.) The jury could not reach a verdict on an attempted murder charge regarding cellmate Doane, resulting in a mistrial on that charge. (§ 664/187, subd. (a).)
The trial court sentenced appellant to state prison for 25 years to life on count 1 and a consecutive four-year term on count 5, and struck the weapon enhancement. The court awarded Macklem 616 days of custody credit.
On appeal, Macklem contends the trial court prejudicially erred in denying his motion to suppress incriminating statements he made during an interview with a detentions unit detective who told him she was investigating the Doane assault incident that took place at the detention facility. Macklem contends the statements he made during this interview about both offenses were the product of a custodial interrogation and were therefore obtained in violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (Miranda) and his right against self-incrimination. This argument requires us to examine the definition of custody for Miranda purposes, in a jailhouse setting. (Cervantes v. Walker (1978) 589 F.2d 424, 427 (Cervantes).)
Macklem also argues the trial court abused its discretion in granting the prosecution's motion to join the two sets of charges for trial, involving the killing of Sarah and the assault on Doane, because the court should not have found the evidence was cross-admissible between the two cases. He additionally argues there was prejudice because each was a relatively weak case which could have been improperly bolstered by the joinder of charges, and the murder/rape charges had an inflammatory effect upon the assault case. Finally, Macklem argues the trial court erroneously failed to award him an additional day of custody credit, for actual time he served in custody from the day of his arrest (late at night), by erroneously calculating credits from the next day when he was booked into jail (after midnight).
After careful consideration of all the briefing, the record and law, we find no violation of Miranda principles. These charges were appropriately joined for trial and the sentence was correct. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
We generally outline the pertinent facts giving rise to the charges and convictions. We will add additional facts as necessary *241 in the discussion portion of this opinion, concerning the Miranda issues and the joinder of charges issues raised on appeal.
A. Death of Sarah Beagles
In September 2003, Macklem was attending a special school because of his attention deficit or attention deficit hyper-activity disorder. He had known Sarah for about five years, since she was 12, and they were boyfriend and girlfriend in 2002, when they engaged in sexual relations. They broke up and Sarah had several other boyfriends, but she and Macklem continued to see each other as friends. Sarah's parents considered Macklem to be one of the family. Sarah was often sad about her grandparents' deaths two years before and also about her boyfriend troubles, and she and Macklem sometimes talked to each other about each of them committing suicide.
On September 19, 2003, Macklem had trouble at school and he and his friend Ben Nelson left school early and hung around. Macklem told Nelson that he was thinking about killing his ex-girlfriend because she had nothing to live for. Nelson responded that he shouldn't be talking like that and could get into trouble, and Macklem agreed. Macklem responded to a phone call from Sarah and joined her at another shopping center, where they had fun shopping and at her house, until they returned to Macklem's home after 9:00 p.m. Macklem's grandmother, Mrs. Edwards, who also lived at the residence, let them in and thought they seemed happy. Macklem's parents were away on a trip.
Macklem and Sarah went out in the backyard to smoke. After a while they went upstairs. About 10:15 p.m., Mrs. Edwards noticed that Sarah's car was still in the driveway so she went upstairs and called through the door that Sarah should go home, and repeated that after receiving a call from Sarah's mother. Mrs. Edwards then got a call from Macklem's mother who told her that he had just called her and told her he did something to Sarah. Mrs. Edwards called 911 as instructed and the police arrived about 10:30 p.m. She told them that Macklem had Asperger's syndrome (a less severe form of autism).
Macklem answered the door and when one of the officers asked him how he was feeling, he answered, "She pushed me for the last time." The officers handcuffed him and while two officers went upstairs, Macklem told the remaining officer, "First big offense. Never killed anyone." Sarah was found apparently dead upstairs, clothed under a blanket, and paramedics were called. Officer Kelley moved Macklem to his patrol car, where he stayed for two and a half hours, past midnight, when he was taken to jail. Macklem made several statements to Kelley during that time, including, "I knew I was going to do this," and "that fucking bitch wasn't even 18 yet." He also said that Sarah used to be his girlfriend and, "at least now she can be with her grandfather in heaven." When Officer Kelley noticed Macklem was uncomfortable in the backseat and said he was sorry, Macklem answered, "No need to be. I know what I've done. I'm going to get what I deserve."
At the police station the next morning, Macklem was interviewed by detectives, who gave him Miranda warnings and made an audiotape of the interview, which was played at trial. The interviewing officer was told by other police officers that Macklem was known to have Asperger's syndrome, causing him to have tunnel vision. Macklem first described his relationship with Sarah, stating that she was his best friend, but they had broken up after they had sexual relations the first time, which upset him as "a very mental crushing *242 blow to have her do that." He said something went "boom" when she got a new boyfriend. She had recently told him she had nothing to live for, after breaking up with another boyfriend and since her grandparents had died, and she and Macklem had asked each other to kill each other. He had premonitions of Wiling her based on his "split personality."
Macklem then described the events of that night, explaining that he became upset after they had sex in the backyard, which he thought was by agreement. While smoking, she then started talking about her ex-boyfriend Andre and said she wanted to save a cigarette for him. Macklem said that he just snapped and he didn't know why.
In the interview, Macklem described his actions in the killing by saying that he took her upstairs to show her something in his room, but then for a second he blanked out and next thing he knew, he was choking her and falling to the floor. She resisted by kicking and struggling, but he had reached the point of no return. He told detectives that after it happened, he meant to say that it was her parents who had pushed her for the last time. He thinks he was trying to break her neck and trying to end her suffering that she had been feeling for the past year due to her family and boyfriend troubles, as she was his best friend. At one point he stopped choking her and listened to see if she still had a heartbeat, and when she did, he finished her off. He said that he had not used all of the rage he felt against her by killing her, and he could have torn her head off her shoulders.
Macklem later told detectives that when Sarah was dead, he realized he had made a terrible mistake and locked himself in his room, smoking. He did not remember what his grandmother said when she knocked on the door, and he surrendered to police when they arrived.
At an autopsy the next day, Sarah was found to have died as a result of strangulation from chest and neck compression. The medical evidence showed she had recently had vaginal intercourse with Macklem, and she also had some bruising inside of her anus.
B. Assault on Cellmate Doane; Jail Interview
On December 29, 2003, Macklem was awaiting trial in the George Bailey detention facility in a special unit for the young and the old. He had several cellmates, including Ray Doane, who was older than he was and was diabetic. Macklem became upset when Doane asked for an extra food tray. Macklem wanted to tell the deputies he thought this was unfair. According to another cellmate, Benito De-Leon, Doane loudly and aggressively told him snitches were assaulted in prison and he demonstrated by swinging around a sock loaded with a bar of soap, in a threatening manner. Macklem became upset and told Doane that nobody threatens him.
After the argument ended, Doane finished his food and went to sleep. Macklem packed a few things and then went into the shower area and apparently removed a PVC pipe from a shower chair. While Doane was still sleeping, Macklem attacked him by slugging and hitting him. When Doane woke up and tried to push Macklem away, Macklem dropped the pipe and pulled Doane onto the floor, and continued to hit and punch him.
Deputy Vasquez arrived in response to screaming and ordered Macklem to stop, and sprayed him with pepper spray when he did not do so. Doane said he was having trouble moving his legs and was taken to the medical facility. According to Deputy Vasquez, Doane was fairly feeble *243 and elderly, while Macklem was significantly larger and younger than Doane.
Detective Danielle Birmingham of the Sheriffs detentions unit was assigned to investigate the incident. She talked to Doane who was bruised and had a bump on his head and seemed visibly shaken by the incident. Doane said that he was trying to educate Macklem about the hazards of being a snitch in prison, such as by showing him how a friend had been beaten to death with soap in socks for being a snitch, but he denied threatening him.
Four days after the incident, Detective Birmingham interviewed Macklem at the Vista detention facility, where he had recently been moved. She asked to speak to Macklem, who was then brought from his cell to a professional interview room, where he smiled and seemed happy to meet with Detective Birmingham. She did not give him any Miranda warnings, but told him he did not have to speak to her. He told her that he thought it was unfair when Doane asked for an extra food tray and he was going to tell deputies. Doane told him snitches were assaulted in prison and he then swung around a sock loaded with soap, in a threatening manner. Macklem was upset and felt threatened. After Doane went to sleep, Macklem pulled a pipe off a shower chair and attacked Doane with it. Macklem explained that he is a smart guy but "just not wired right." Once he becomes angry, it is hard for him to control himself. He told Detective Birmingham that if deputies had not stopped him, he would have killed Doane, and "that's the reason why I'm in here, because no one was there to stop me."
C. Information; Joinder Motion
Pretrial, the People brought a motion to consolidate the charges arising out of Sarah's death and Doane's injuries. (§ 954.) At that time, the charges regarding Sarah also included the offenses of forcible rape (§ 261, subd. (a)(2)), and forcible rape by a foreign object (§ 289, subd. (a)(1)). The charges also included special circumstances death penalty/life without parole allegations, regarding commission of the murder during rape and rape by instrument (§ 190.2, subd. (a)(17)). However, in the motion for joinder, the deputy district attorney indicated that the death penalty was no longer being sought.
Regarding the Doane case, counts 4 and 5 originally charged Macklem with attempted murder (§ 664/187, subd. (a)), and assault with a deadly weapon (a pipe) or by means of force likely to cause great bodily injury (§ 245, subd. (a)(1)). The information alleged the attempted murder was willful, deliberate, and premeditated (§ 189), and that Macklem used a deadly and dangerous weapon during its commission (§ 12022, subd. (b)(1)) and that of the assault (§§ 1192.7, subd. (c)(23), 12022, subd. (b)(1)).
Macklem opposed joinder of the charges, on the basis the evidence was not cross-admissible, because there was no common scheme connecting the crimes and the victims were unrelated in sex and age. Even if cross-admissibility were proper, prejudice would arguably ensue. (Evid. Code, § 1101, subd. (b).) He also contended the "spillover" effect of aggregating the evidence as to an inflammatory murder/rape case and the weaker assault case would create potential prejudice toward him. He intended to present a psychological defense, based on his various diagnoses, that he was unable to form the necessary intent to murder Sarah, and he intended to present a self-defense theory regarding a threat from Doane.
The motion for joinder was heard at the outset of trial and the court granted it, ruling this was an appropriate set of charges to be tried together. The court *244 found that Macklem's statements to Detective Birmingham would be cross-admissible. On November 12, 2004, the consolidated information was filed.
D. Prosecution Case
At trial, the court ruled upon motions in limine and granted the People's motion to admit the statements Macklem made to Detective Birmingham at the jail, subject to further hearing under Evidence Code section 402. Testimony was taken from numerous percipient and expert witnesses, including the detaining officer Kelley and Detective Birmingham. Macklem's motion to suppress the statements made to Detective Birmingham was presented and denied. (§ 1538.5.) The jury viewed the videotape of Macklem's statements to detectives the day after Sarah's death, describing the circumstances surrounding it.
E. Defense Case
Macklem presented supportive testimony from his mother and Sarah's father. He brought a motion to dismiss the rape charges in counts 2 and 3, along with the rape allegations attached to count 1, for lack of sufficient evidence. Originally, the motion was denied without prejudice but it was eventually granted before the case was sent to the jury (pt. G, post).
Additionally, Macklem's motions sought to have the assault and attempted murder counts dismissed as to Doane. That portion of the motion was denied. (§§ 1118.1, 1385.)
Macklem presented extensive testimony and documentary material about his mental condition and various diagnoses he had received since childhood. For example, both psychological and school reports showed Macklem's history of problems from an early age with attention, learning, social interaction, impulse control, temper tantrums, and fighting. His school records from 2001-2003 showed many incidents of aggressive and uncontrolled behavior towards students and teachers. For example, on several occasions, Macklem choked and punched a particular student, Robert, such that he could not breathe. Macklem had also punched teachers and had damaged school property after becoming angry at a sports event. One evaluating doctor testified these incidents were the result of a basic impulse control problem, but that some of them apparently were "very focused and directed."
Macklem's intelligence and mental ability testing results have been inconclusive, as he has been found to be below average in the areas of memory, thought processing, and academic skills. In other tests, he was found to have an average IQ, and he did well on logic and short term memory diagnostic tests. Some evaluators feel Macklem is mainly willfully defiant and manipulative, and because of his moodiness and impulsiveness, he has social impairments and difficulties with interpersonal relationships.
Drs. Glenn Lipson, Alan Lincoln and Marc Lewkowicz testified and interpreted records about Macklem's troubled psychological and mental health. The defense experts and reports made in the past were consistent in finding that Macklem had attention deficit or attention deficit hyper-activity disorder. Many other diagnoses had been made at various times of other conditions from which he may have suffered. Most prominently, the testimony focused on three conditions: Asperger's syndrome, Pervasive Developmental DisorderNot Otherwise Specified (PDDNOS), and/or schizotypal personality disorder.
Asperger's syndrome is a less severe form of autism, which is demonstrated by *245 impaired social interaction, attention problems, rigid behaviors, and fantasy thoughts. Persons with Asperger's generally have few friends and struggle with romantic relationships. They may go into rages and act out, but they cannot explain or understand their behavior. They are capable of manipulating situations to get what they want. In general, they do not care about the impact of their behavior and how it affects others.
Specifically with reference to the assault incident, Dr. Lincoln testified that if a person with Asperger's were in a situation with a fellow inmate who called him a snitch and demonstrated possible jail attacks involving beatings with socks loaded with soap bars, that person might perceive the interaction as an immediate threat and be afraid.
With reference to the killing, Dr. Lincoln also testified that if someone repeatedly asked a person with Asperger's to kill him or her, the person would be likely to fantasize and have difficulty understanding or dealing with those requests.
Another diagnosis made of Macklem was PDD-NOS, whose sufferers generally share similar characteristics to those with Asperger's or autism. These people have occupational, interpersonal, and learning problems.
Likewise, schizotypal personality disorder, which Macklem may have, manifests itself in poor interpersonal skills, fantasies, thought impairments, and emotional problems. At various times, Macklem told people he heard voices he could not understand, which told him to do bad things. However, Macklem never said that any voices had told him to kill Sarah on the night of the incident.
While being interviewed by Dr. Lewkowicz, the defense psychological evaluator, Macklem could not explain why he killed
Sarah and said he felt sad about it. He knew choking someone could cause death and understood that he had killed Sarah. He appeared to the evaluator to be developmentally retarded, having the equivalent communication skills and ability to interact of a five- to eight-year-old child. It was unlikely such a person could understand a sexual relationship such as Sarah had with her boyfriends.
Some earlier evaluations found no convincing evidence that Macklem suffered from Asperger's, autism, PDD-NOS, or neurological or brain abnormalities. Evaluations were inconclusive regarding the presence of Tourette's syndrome.
F. Prosecution's Rebuttal
To rebut the defense psychological evidence, the People presented evidence from Dr. Charles Kerber, a brain specialist, who examined records of Macklem's brain structure and activity. Dr. Kerber did not find any neurological, structural, or functional abnormalities that would explain or affect his behavior.
Also, Dr. Philip Hanger, a psychologist for the Department of Mental Health, reported that during his evaluation of Macklem done shortly before trial, Macklem appeared to be alert and oriented. He was able to respond to questions and carry on a conversation. Dr. Hanger believed Macklem could have been exaggerating or imitating symptoms, and was motivated to do so.
G. Rulings and Verdict
On December 8, 2004, at the close of testimony, the trial court granted Macklem's renewed motion to dismiss the rape charges, along with the rape allegations regarding count 1, and such evidence was excluded accordingly. (§ 1181.1.) The jurors were instructed to consider only the murder and assault charges, without speculating *246 as to why any other charges they had heard about earlier had been dismissed. After deliberations, the jury convicted Macklem on the remaining charges set forth in count 1 (first degree murder) and count 5 (assault with a deadly weapon) and found true the allegations in count 5. However, it deadlocked on the attempted murder charge in count 4, and the trial court dismissed it at the motion of the People.
On May 27, 2005, the trial court sentenced Macklem to state prison for 25 years to life on count 1 and a consecutive four-year term on count 5, and awarded custody credits. The remaining enhancements were stricken. Macklem appeals.
DISCUSSION
We first discuss the contentions regarding the lack of Miranda warnings given to Macklem before the jailhouse interview about the assault on Doane. We then turn to the joinder of charges and whether they represented an abuse of discretion by the trial court. Finally, we will address Macklem's contention regarding the request for an additional day of custody credit.
I
MOTION TO SUPPRESS
Macklem contends the trial court prejudicially erred in denying his motion to suppress incriminating statements he made during his interview with Detective Birmingham, conducted as part of the investigation of the Doane altercation, while he was in detention on the charges of killing Sarah. In that interview, he made statements about both series of events, and he now contends those unwarned statements were the product of a custodial interrogation and were therefore obtained in violation of his rights under Miranda, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed;2d 694 and his right against self-incrimination.
We are required to analyze this Miranda claim in light of the factual background for the motion, which is that Detective Birmingham interviewed him at the detention facility where he had been moved after the Doane incident, which occurred while he was already in pretrial detention. This raises issues about whether the defendant was in "custody for Miranda purposes" when interviewed by a law enforcement official at a custodial facility where he was already confined. (People v. Anthony (1986) 185 Cal.App.3d 1114, 1121, 230 Cal.Rptr. 268 (Anthony).)
There is a significant body of law on this question, beginning with Mathis v. United States (1968) 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (Mathis), in which a state prisoner, Mathis, was questioned by a federal government agent about certain of his tax returns. The high court rejected the federal government's position that in order for Miranda requirements to apply, the prisoner had to be in custody for the same matter to which the questioning related. Rather, the Court held that he was entitled to receive Miranda warnings before such questioning. This rule was analyzed in Cervantes, supra, 589 F.2d 424, 427, in which a prisoner claimed that any interrogation during his prison confinement constituted custodial interrogation requiring Miranda warnings. However, the Ninth Circuit rejected that position, and stated:
"The concept of `restriction' is significant in the prison setting, for it implies the need for a showing that the officers have in some way acted upon the defendant so as to have `deprived (him) of his freedom of action in any significant way,' [Miranda v. Arizona, supra, 384 U.S. at p. 444, 86 S.Ct. 1602 [citation].] In the prison situation, this necessarily implies a change in the surroundings of the prisoner which results in an added imposition *247 on his freedom of movement. Thus, restriction is a relative concept, one not determined exclusively by lack of freedom to leave. Rather, we look to some act which places further limitations on the prisoner." (Id at p. 428, 86 S.Ct. 1602.)
Many other courts which have considered this issue also, with Cervantes, reject any "per se custody" rule as applied to a prisoner who is being interviewed by law enforcement officers in the prison or detention setting. (See, e.g., United States v. Conley (4th Cir.1985) 779 F.2d 970, 971-974 (Conley); Anthony, supra, 185 Cal. App.3d 1114, 1120-1121, 230 Cal.Rptr. 268; People v. Fradiue (2000) 80 Cal.App.4th 15, 21, 95 Cal.Rptr.2d 1 (Fradiue).)[2] These courts have focused upon four criteria identified in Cervantes for determining voluntariness of a statement under these particular circumstances: whether the language summoning the defendant from his prison lodging was coercive, whether the physical surroundings of the questioning were unduly coercive, whether the defendant was confronted with evidence of guilt, and whether there was an opportunity given to this person to leave the site of the questioning. (Cervantes, supra, 589 F.2d 424, 427-428.)
We will examine these authorities and then analyze this record to determine whether Macklem was in custody for Miranda purposes at the time of the investigative interview conducted by Detective Birmingham, about the Doane incident.
A. Additional Factual Background
In connection with Macklem's motion to suppress the statements made to Detective Birmingham, her testimony was taken in the midst of trial. (§ 1538.5.) When she was assigned to investigate the Doane incident, she arrived on January 2, 2004 at the Vista detention facility where Macklem had recently been moved, and asked to speak to him. At her request, the housing deputy called into Macklem's cell to see if he wanted to come out and talk to the detective. Birmingham waited in a professional interview room (normally used for attorney or doctor consultations), and two housing deputies brought Macklem in handcuffs to the room, from his administrative segregation unit. She assumed that meant he was willing to talk to her. The deputies removed the handcuffs from Macklem and left the room, closing the unlocked door behind them but leaving it ajar.
Detective Birmingham showed Macklem her identification and told him who she was, that she intended to talk to him about Doane, that he was not required to talk to her and that if he wanted to leave at any time, she would leave the room and lock the door, and call the housing deputies to take him back in handcuffs to his housing unit. She did not give him any Miranda warnings, but told him he did not have to speak to her. He stated that was fine and he would talk to her. She did not ask him any questions about the pending murder charges, but he made statements about them at the end of the interview, to the effect that he would have killed Doane if the deputies had not come in, and that was the same reason he was in jail, because there was no one there to stop him at the *248 time he killed Sarah. At that point, she ended the interview and notified deputies that they should come pick him up.
On cross-examination, Macklem's counsel clarified that Birmingham did not know exactly how the housing deputy told Macklem that she was there to talk to him, but Birmingham would normally explain to the deputy that she was there to interview the inmate as the result of an earlier incident. Once Macklem arrived and the cuffs were taken off, she asked him if he wanted to speak with her, and told him he did not have to talk to her and she could have the deputies take him, back to the housing unit at any time, by locking him in the interview room and calling them to do so. She also explained that he did not show any hesitation in talking to her, but rather, seemed quite happy to meet with her and smiled at her. Although she was aware that he had previously been detained in a protective unit for young and old, where the altercation had occurred, she was not knowledgeable about his mental conditions or illnesses.
In making its ruling, the trial court stated that it had reviewed the authorities, including Cervantes, supra, 589 F.2d 424, 427, and Conley, supra, 779 F.2d 970, 971-974, and concluded that in light of the facts presented, the People had sufficiently demonstrated for admissibility purposes that Macklem was not coercively required to go to the interview room and when he got there, he could have refused to talk. The court relied on the fact he was not yet in formal custody on the case involving Doane, and the apparent focus of Detective Birmingham's questioning was to find out what happened and gather information. The court specifically referred to the four factors set forth in Cervantes and Conley, ruling that they did not support any finding that this was custodial interrogation. Specifically, as laid out in Cervantes, the language summoning the defendant was not coercive, the physical surroundings were not unduly coercive, since it was a professional visitor's room, and Macklem was not confronted with evidence of guilt. (Cervantes, supra, 589 F.2d 424, 427.) Finally, Macklem was given the opportunity to leave the interview room by requesting to do so. The motion to suppress was denied.
B. General Legal Principles: Custody
Miranda requires that a person questioned by police after being "taken into custody or otherwise deprived of his freedom of action in any significant way" must first "be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." (Miranda, supra, 384 U.S. at pp. 444-45, 86 S.Ct. 1602.) Custodial interrogation is" "`questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" (Yarborough v. Alvarado (2004) 541 U.S. 652, 661, 124 S.Ct. 2140, 158 L.Ed.2d 938 (Yarborough), italics added, quoting Miranda, supra, 384 U.S. at p. 444, 86 S.Ct. 1602.) When there has been no formal arrest, the custody issue turns on "how a reasonable person in the suspect's position would perceive his circumstances." (Yarborough, 541 U.S. at p. 662, 124 S.Ct. 2140; Berkemer v. McCarty (1984) 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317; People v. Stansbury (1995) 9 Cal.4th 824, 830, 38 Cal.Rptr.2d 394, 889 P.2d 588.)
The custody question is an objective one: "`Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there *249 a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.'" (Yarborough, supra, 541 U.S. at p. 663, 124 S.Ct. 2140, quoting Thompson v. Keohane (1995) 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383; People v. Ochoa (1998) 19 Cal.4th 353, 401, 79 Cal.Rptr.2d 408, 966 P.2d 442 (Ochoa); People v. Smith (2007) 40 Cal.4th 483, 501-502, 54 Cal.Rptr.3d 245, 150 P.3d 1224.)
Neither the subjective views held by the interrogating officers or the defendant are generally relevant to such a determination. (Stansbury v. California (1994) 511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293; California v. Beheler (1983) 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (Beheler); Ochoa, supra, 19 Cal.4th at p. 401, 79 Cal.Rptr.2d 408, 966 P.2d 442 [absent custodial interrogation, Miranda simply does not come into play].) "[P]olice officers are not required to administer Miranda warnings to everyone whom they question.... Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him `in custody.'" (Oregon v. Mathiason (1977) 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (Mathiason).)
In Illinois v. Perkins (1990) 496 U.S. 292, 300, 110 S.Ct. 2394, 110 L.Ed.2d 243 (Perkins), the Supreme Court dealt with another aspect of voluntariness of statements made by a detainee, and analyzed the custody issue. It held that "an undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response." (Ibid.) In reaching this conclusion, the court found the facts in Mathis, supra, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381, to be distinguishable, because the suspect in Mathis, while being questioned in jail, was aware that the agent was a government official who was investigating his potential noncompliance with tax laws. Because the agent did not give Mathis any Miranda warnings before questioning, those incriminating statements were not admissible at the later tax fraud trial. (Id. at p. 299, 110 S.Ct. 2394.) The relevant distinguishing factor was that the defendant in Perkins, in speaking to the undercover agent while making incriminating statements, could not reasonably be said to have believed himself to be under coercion, and the court added this caution: "(The bare fact of custody may not in every instance require a warning even when the suspect is aware that he is speaking to an official, but we do not have occasion to explore that issue here.)" (Perkins, supra, 496 U.S. 292, 299, 110 S.Ct. 2394, 110 L.Ed.2d 243; see Garcia v. Singletary (11th Cir.1994) 13 F.3d 1487, 1491, fn. 4 [referring to that statement as dicta].)
Thus, the court in Perkins acknowledged that technically, there are different kinds of custody, including but not limited to detention custody and Miranda custody. Dealing with the undercover agent issue, the court stated: "We reject the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent. Questioning by captors, who appear to control the suspect's fate, may create mutually reinforcing pressures that the Court has assumed will weaken the suspect's will, but where a suspect does not know that he is conversing with a government agent, these pressures do not exist." (Perkins, supra, 496 U.S. at p. 297, 110 S.Ct. 2394.)
For our purposes here, Perkins indicates that we should consider the interplay between police custody and police interrogation when considering the need to *250 proviue Miranda protections against coercion. (See Dressier & Michaels, Understanding Criminal Procedure (4th ed.2006) vol. 1, § 24.11(B), pp. 513-514.) In the factual context of a prisoner in pretrial detention, who is being questioned about a different offense than the one leading to the pretrial detention, the analysis of the current custodial status must take into account the type of custody, the type of questioning, and the identity of the questioner.
C. Specific Legal Principles: Additional Custody Within Custody
In applying these rules, one must be mindful of the various policies served by the Miranda decision. The Fifth Amendment was intended to ensure the reliability of confessions, while also "limiting police interrogation tactics that are offensive even though they may result in reliable confessions in some cases." (Magid, Questioning the Question-Proof Inmate: Defining Miranda Custody for Incarcerated Suspects (1997) 58 Ohio St. L.J. 883, 916 (hereafter Magid).) In addition, the Supreme Court has sought in developing its Miranda principles to promote other public purposes: i.e., "the provision of guidance to law enforcement actors and the conservation of judicial resources." (Id. at page 917.) This commentator identifies the subject conceptual problem as follows:
"On a superficial review, all incarceration might seem to constitute custody since inmates cannot, of course, leave the facility in which they are incarcerated. But custody in layperson's terms is not necessarily custody for Miranda purposes. Miranda's definition of custody reflects a concern more with the coercive forces that may affect interactions between a suspect and an interrogating official, and less with the fact that a person's ability to select his activities and routine is greatly limited as an inmate. [K] Thus, many courts have convincingly made a distinction between custody for Miranda purposes and general prison population confinement. In these cases, the courts justified interrogation undertaken in the absence of any Miranda warnings by concluding that the inmates were not entitled to warnings because they were not in custody for Miranda purposes." (Id. at p. 933, fn. omitted.)[3]
Thus, it has been repeatedly recognized that it is difficult to apply basic Miranda principles in the context of questioning directed to a prisoner who is already under detention in a custodial facility. "Courts have rightfully concluded that while the Miranda considerations are quite relevant within prison walls, the definition of custody must take into account the highly regulated life of inmates." (Magid, supra, 58 Ohio St. L.J. 883, 916, 941.) When is there an additional degree of "formal arrest or restraint on freedom of movement," in jail? (See Anthony, supra, 185 Cal.App.3d at p. 1121, 230 Cal.Rptr. 268, citing Mathiason, supra, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714.)
To answer this question in this case, we compare the relevant factors identified in the leading cases to our own set of facts. In Cervantes, the court found the most significant criterion in Mathis, supra, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381, was that he was being questioned about matters that did not arise within the prison itself, by a government agent who was not a member of the prison staff; the prisoner *251 was therefore subjected to an additional imposition on his limited freedom of movement, thus requiring Miranda warnings." (Cervantes, supra, 589 F.2d 424, 428.) The fact situation in Cervantes involved more immediate events, in that the inmate was involved in a recent fight at the facility and was taken to the local library for questioning, where he left his property outside the library as directed and it was searched. When contraband was found, he responded to questioning by saying, "`That's grass, man.'" (Id. at p. 427.) He was then arrested for possession of marijuana, and his efforts to suppress those statements were rejected on Miranda grounds, because he was not found to be in any additional custody over and above his prisoner status, for purposes of that questioning. (Ibid.) In reaching that conclusion, the court considered "`the language used to summon him, the physical surroundings of the interrogation, the extent to which he is confronted with evidence of his guilt, and pressure exerted to detain him,'" to determine if Miranda warnings were required. (Id. at pp. 427-428.) The court said no such warnings were necessary, opining:
"To interpret Mathis as Cervantes urges would, in effect, create a per se rule that any investigatory questioning inside a prison requires Miranda warnings. Such a rule could totally disrupt prison administration. Miranda certainly does not dictate such a consequence.... [¶] Adoption of Cervantes' contention would not only be inconsistent with Miranda but would torture it to the illogical position of providing greater protection to a prisoner than to his nonimprisoned counterpart. We cannot believe the Supreme Court intended such a result." (Cervantes, supra, 589 F.2d at p. 427.)
Likewise, in Fradiue, supra, 80 Cal. App.4th 15, 19-20, 95 Cal.Rptr.2d 1, the court considered whether that defendant, as a reasonable person, would believe there had been a restriction of his freedom over and above that inherent in his normal prison setting, when he answered questions from a correctional officer who was his prison-appointed fact finder, appointed to investigate recent administrative charges of contraband in the prison setting. Defendant did not disqualify the appointed officer as he could have done under the prison regulations. The officer then came to defendant's cell and asked him questions about the contraband through a slot in his administrative segregation cell door. The court denied defendant's motion to suppress the statements in response to those questions, reasoning under Cervantes, supra, 589 F.2d 424, that the defendant had not been summoned for questioning, he was not restrained inside his cell, the officer informed him he was able to reject him as the appointed investigator, and the interview was known to be for the purpose of assisting the inmate to prepare a defense. Defendant knew he was free to stop talking to the investigator at any time, and he was not confronted with evidence of guilt. Under the totality of the circumstances, the court found no Miranda, warnings were required, because "no restraints were placed upon defendant to coerce him into participating in the interrogation over and above those normally associated with his inmate status." (Fradiue, supra, 80 Cal.App.4th 15, 21, 95 Cal. Rptr.2d 1.)
In Conley, supra, 779 F.2d 970, 971-974, no Miranda violation was found when a wounded prisoner was questioned in a conference room while he was awaiting transfer to the jail infirmary and again when he returned. These interviews both took place shortly after another prisoner was stabbed to death. The court observed, "Prisoner interrogation simply does not lend itself easily to analysis under the *252 traditional formulations of the Miranda rule. A rational inmate will always accurately perceive that his ultimate freedom of movement is absolutely restrained and that he is never at liberty to leave an interview conducted by prison or other government officials. Evaluation of prisoner interrogations in traditional freedom-to-depart terms would be tantamount to a per se finding of `custody,' a result we refuse to read into the Mathis decision. [11] A different approach to the custody determination is warranted in the paradigmatic custodial prison setting where, by definition, the entire population is under restraint of free movement." (Conley, supra, 779 F.2d at p. 973, cited in Anthony, supra, 185 Cal.App.3d 1114, 1121-1122, 230 Cal.Rptr. 268 [no Miranda violation found where Anthony, a defendant in jail, initiated phone calls to police that contained incriminating material].)
Thus, in Conley, supra, 779 F.2d 970, the court found Conley was not "in custody" for Miranda purposes when questioned, because his freedom of movement was not restricted past the ordinary degree. When he was taken to the place where the questioning occurred, it was done in a routine manner, such that he was placed in restraints for purposes of obtaining medical treatment, and he was not questioned as a suspect but rather as a witness to the stabbing, and only briefly by guards who knew him. In contrast, the court noted that a companion motion to suppress had properly been granted in Conley's case, with respect to statements made to an FBI agent who questioned Conley, since that agent came into the prison as an outside investigator, who was thus in a different category of interviewers under the applicable case law, such as Mathis, supra, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381. (Conley, supra, at p. 974, fn. 5.)
This point is further illustrated in an opinion from this Court, People v. Ravaux (2006) 142 Cal.App.4th 914, 920-921, 49 Cal.Rptr.3d 211 (Ravaux), in which we compared the definition of "custody" for Miranda purposes to "custody" for sentencing purposes (assigning credits under section 2900.5; see part III, post, and fn. 3, ante). With respect to the Miranda custody definition, we said: "In that context an individual is in custody for the purposes of determining whether he has a right to counsel and must be informed of his right to remain silent, if a reasonable person in the same situation would believe they are not free to leave. [Citation.]" (Id. at p. 920, 49 Cal.Rptr.3d 211.) We then stated that such a definition of custody was inapposite for purposes of interpreting credit entitlements under section 2900.5, based on evaluating time spent in residential custody, because "[s]ection 2900.5 defines custody so that those who are incarcerated receive credit for the time they serve. Applying the Miranda standard in this context does not further the policy advanced in either." (Ravaux, supra, at p. 921, 49 Cal.Rptr.3d 211.)
In summary, the contrary reasoning in an older case, United States v. Cadmus (D.C.N.Y.1985) 614 F.Supp. 367, 373, has not been found persuasive by later analyses in its adoption of a per se custody rule, which it stated as follows: "[A] fair reading of Miranda and Mathis leads ineluctably to the conclusion that custody is custody-an individual incarcerated, or detained in a prison-like facility, is in custody and must be advised of his Miranda rights before any interrogation can take place." That "per se" reasoning does not account for the well-recognized distinctions in the technical categories of custody that may exist at a given time, such as temporary Miranda custody, more long-term, institutional custody, or custody determinations for purposes of awarding *253 custody credits at sentencing,[4] (See Perkins, supra, 496 U.S. 292, 296-299, 110 S.Ct. 2394, 110 L.Ed.2d 243.)
D. Analysis
To evaluate any error in admitting a defendant's prearrest statements, the standard used is harmlessness beyond a reasonable doubt. (See People v. Johnson (1993) 6 Cal.4th 1, 32-33, 23 Cal.Rptr.2d 593, 859 P.2d 673 [applying "harmless beyond a reasonable doubt" standard of Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 to Miranda error].) Under that prejudice standard, an error may be found harmless only when the "beneficiary of a constitutional error ... prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, at p. 24, 87 S.Ct. 824.)
Utilizing an objective standard, we seek to determine whether Macklem, when answering Birmingham's questions, was in "custody for Miranda purposes." This is a mixed question of law and fact, in which we ask: "[F]irst, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." (Ochoa, supra, 19 Cal.4th at pp. 401-402, 79 Cal. Rptr.2d 408, 966 P.2d 442.) This is determined on the totality of the circumstances surrounding the alleged interrogation, to decide if prison officials applied additional restraints that further restricted Macklem's freedom, thereby triggering Miranda warning obligations. (Fradiue, supra, 80 Cal.App.4th at p. 21, 95 Cal. Rptr.2d 1.)
Since Macklem was not free to leave the detention facility entirely, we analyze the facts to determine whether some additional degree of restraint was imposed upon him that forced him to participate in this interview, in light of the criteria summarized above. First, with respect to the language used to summon him for questioning, Detective Birmingham requested that the housing deputy contact Macklem at his cell and ask him if he was willing to come out and talk, but she communicated both to the deputy and to Macklem that he was not required to do so. Unlike in Mathis, supra, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381, and in the companion motion to suppress referred to in Conley, supra, 779 F.2d 970, she was not an investigator from an outside entity or from a different jurisdiction, or who was investigating charges that had arisen independently of the jail setting. Rather, she caused Macklem to be told she was a sheriffs detective investigating the recent jailhouse incident, which removed any element of surprise that appeared to be operating in Mathis. (See Conley, supra, 779 F.2d at p. 974, fn. 5 [noting there are different categories of interviewers for these purposes].) Here, the questioning related to matters arising from the original conditions of confinement.
Since Macklem arrived at the interview room in handcuffs and was uncuffed and left there with the door ajar, with Birmingham, these facts as a whole support a reasonable inference that he showed willingness to participate in her interview. Those physical surroundings of the interrogation *254 weigh against any finding of coerciveness, since he was left there and told he would be taken back at his request, and asked if he wanted to answer questions there. Moreover, an interview room where attorneys and doctors visit to consult inmates is as close to neutral territory as is available in the detention facility.
Under the third factor, there is no clear indication that Macklem was confronted with evidence of his guilt, since Detective Birmingham conducted the interview by asking him what he knew about the Doane incident. She terminated the interview when he started talking about Sarah's case.
Finally, these circumstances do not disclose that any additional pressure was exerted to detain him in a coercive manner. Macklem was given the opportunity to leave the room if he requested to do so. Even in light of the knowledge that Detective Birmingham had, that Macklem was previously detained in a protective unit for young and old, the reasonable prisoner standard still applies and Macklem was being treated like any other adult inmate who had some mental problems. No apparent additional degree of restraint was imposed on him to coerce him into participating in the interview beyond the everyday conditions of confinement.
We therefore conclude the trial court correctly applied the authorities to determine that a reasonable person in Macklem's position would have realized that he could end the questioning and leave before the end of the interview. It is not dispositive that the conversation here took place at the detention facility, since Macklem was told he could leave the interview room itself at any time and did not have to discuss the issues. (Yarborough, supra, 541 U.S. at pp. 661-663, 124 S.Ct. 2140.) Under the totality of the circumstances, he was not in custody for purposes of Miranda, the protections of Miranda did not apply, and the failure of the detective to give a Miranda warning did not make his statements inadmissible.
Even if we assume the trial court erred in admitting the statements made to Detective Birmingham, the People have demonstrated that the error was harmless, in that the evidence did not contribute in the verdict. (People v. Johnson, supra, 6 Cal.4th 1, 32-33, 23 Cal.Rptr.2d 593, 859 P.2d 673.) Those statements were not essential to the proof of either the Doane or the Sarah offenses, and we next discuss the cross-admissibility issues raised regarding joinder.
II
JOINDER
At the outset of trial, the court granted the motion for joinder, finding this was an appropriate set of charges to be tried together. Macklem concedes that the murder and assault charges were similar enough to be subject to joinder, since the offenses are of "the same class." (§ 954.) He nevertheless contends this ruling was an abuse of discretion, mainly arguing the court erred in finding the evidence would be cross-admissible regarding the two offenses, because there was no common scheme connecting the crimes and the victims were unrelated in sex and age. He also contends that even if cross-admissibility were proper, undue prejudice would result from the "spillover" effect of aggregating the evidence as to the inflammatory facts of the murder/rape charges and the assault case, both of which he believed were weak cases. (Evid.Code, § 1101, subd.(b).) He also argued the specter of the original death penalty charges would create potential prejudice, since they could have been reinstated at some point.
*255 We first take note that both parties essentially agree the record is sufficient for us to review the factors set forth in case law for ruling upon a joinder request, even though the trial court did not spell out its reasoning when it granted the motion for joinder.
A. Standards of Review
Under section 954, "[a]n accusatory pleading may charge two or more different offenses connected together in their commission ... or two or more different offenses of the same class of crimes or offenses, under separate counts, ... provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately...." "Offenses committed at different times and places against different victims are, nevertheless, `connected together in their commission' when there is a 'common element of substantial importance' among them. [Citations.]" (People v. Matson (1974) 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 528 P.2d 752.)
The joinder of such related charges, "whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials." (Ochoa, supra, 19 Cal.4th 353, 409, 79 Cal.Rptr.2d 408, 966 P.2d 442.) "Because consolidation ordinarily promotes efficiency, the law prefers it." (Ibid.)
However, a trial court may order separate trials "in the interests of justice and for good cause shown." (§ 954.) The defendant must "`clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.'" (People v. Davis (1995) 10 Cal.4th 463, 508, 41 Cal.Rptr.2d 826, 896 P.2d 119.) "[C]ross-admissibility [of evidence] ordinarily dispels any inference of prejudice...." (People v. Mason (1991) 52 Cal.3d 909, 934, 277 Cal.Rptr. 166, 802 P.2d 950; People v. Carter (2005) 36 Cal.4th 1114, 1154, 32 Cal.Rptr.3d 759, 117 P.3d 476.)
Cross-admissibility of evidence, however, is not required for joint trials; "[b]ecause of the factors favoring joinder, a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial." (People v. Arias (1996) 13 Cal.4th 92, 127, 51 Cal.Rptr.2d 770, 913 P.2d 980; see also § 954.1.) To discharge the burden of showing prejudice, the defendant must show, in addition to lack of cross-admissibility, some other factor is present, for example, that one of the offenses was substantially more inflammatory than the others or was supported by significantly stronger evidence. (Frank v. Superior Court (1989) 48 Cal.3d 632, 641, 257 Cal.Rptr. 550, 770 P.2d 1119.)
Generally, the decision to try separate charges together is reviewed for abuse of discretion. (People v. Osband (1996) 13 Cal.4th 622, 666, 55 Cal.Rptr.2d 26, 919 P.2d 640.) "A court abuses its discretion when its ruling `falls outside the bounds of reason.'" (Ibid.) Determinations of whether the trial court abused its discretion in joining counts for trial will be based on the facts as they appeared at the time of the hearing. (People v. Douglas (1991) 234 Cal.App.3d 273, 281, 285 Cal. *256 Rptr. 609.) However, "[e]ven if a trial court's severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the 'defendant shows that joinder actually resulted in "gross unfairness" amounting to a denial of due process.'" (People v. Mendoza (2000) 24 Cal.4th 130, 162, 99 Cal. Rptr.2d 485, 6 P.3d 150 (Mendoza).)
B. Application
In its motion for joinder, the prosecution mainly relied upon three factors to argue that evidence regarding the murder count and the assault count would be cross-admissible, and no prejudice would occur from joinder. Macklem made statements to Detective Birmingham referring to both cases, and the prosecution intended to use them in both cases. Also, the prosecution intended to prove the facts underlying both cases to show Macklem had the ability to form the necessary mental states to commit the charged offenses. This could be pursued through cross-examination of the defense mental health experts. Finally, the prosecution argued both offenses involved violent attacks and vulnerable victims.
We first address Macklem's arguments regarding cross-admissibility of evidence of these offenses. We then turn to his contentions regarding prejudice.
Evidence Code section 1101, subdivision (b) allows uncharged offenses to be used to establish something other than the defendant's disposition to commit a particular act, and this may include facts such as motive, intent, preparation or plan. (See People v. Carter, supra, 36 Cal.4th 1114, 1154, 32 Cal.Rptr.3d 759, 117 P.3d 476.) The least degree of similarity is required to establish that uncharged offenses may be used to support an inference of similar intent in each case. (People v. Kipp (1998) 18 Cal.4th 349, 369-371, 75 Cal.Rptr.2d 716, 956 P.2d 1169.)
With regard to the intent demonstrated in the two instances, Macklem intended to show he acted in self-defense against Doane, and lacked the ability to act with an intent to murder Sarah, due to his mental disabilities. However, the prosecution could properly seek to counter those defenses by showing that Macklem had a history of attacking other people and he understood that he could hurt them. To support the prosecution's theory that he could form an intent to kill or harm, the prosecution could properly bring in evidence of motivation and planning in the two sets of charges.
For each offense, there was some evidence of planning and preparation. Macklem told his friend Nelson that he was planning to kill his ex-girlfriend and he later told detectives that he had been having premonitions and thinking about doing so for a week or two. At the time he assaulted Doane, they had been cellmates for a while and were acquainted, and after their dispute about the meal, Macklem packed up, went into the shower room and took apart a shower chair, showing some kind of planning. Although Sarah was a young girl and Doane was an older man, they were both people with whom Macklem was familiar and they were both physically vulnerable compared to him, and neither was expecting the attack.
When Macklem saw the police officers after killing Sarah, he said that she pushed him for the last time, and called her a "fucking bitch," which seems to indicate he acted in response to some kind of threat, which was also presumably the case regarding Doane, at least in Macklem's mind. Although he told detectives he meant that her parents had pushed her for the last time, that is not the only way to interpret the evidence. Both offenses took *257 place in response to an upsetting event, which is a "`common element of substantial importance' between them." (People v. Matson, supra, 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 528 P.2d 752.) It is not dispositive that Macklem's defense was that he was seeking to relieve Sarah's suffering, because the evidence could also be interpreted that his actions were motivated by or in response to anger. Macklem cannot convincingly argue that the two assaultive incidents are not similar enough so that their features could not be cross-admissible, and those features show more than a propensity to commit a certain type of act.
Further, Macklem told the police at the scene that he knew what he had done and he was going to get what he deserved. His statements to Detective Birmingham explained that the reason he had not killed Doane was that someone was there to stop him, unlike in Sarah's case. These statements tend to support the prosecution's theory that the two offenses were committed for similar reasons or motivations, and that their intents were similar. The jury was instructed in the language of CALJIC No. 2.51 regarding the proper use of evidence to show motive.
Even if cross-admissibility had not been demonstrated, Macklem would still have to show prejudice from one of the remaining factors. Regarding the inflammatory nature of the murder and rape charges, we disagree with his argument that Sarah's age (17, a minor) was a particularly prejudicial factor against him, since he was of similar age and they had been friends throughout their teenage years. This is not a case of a predatory adult charged with a child molestation, for example, which would qualify as an inflammatory offense for joinder or severance purposes. (See People v. Poggi (1988) 45 Cal.3d 306, 322, 246 Cal.Rptr. 886, 753 P.2d 1082.)
Similarly, the attack on Doane was not completely lacking in extreme or inflammatory features, such that the two offenses were too disparate to be tried together. Doane was sleeping when Macklem tackled him, and any provocation caused by Doane was not relatively extreme in nature. Neither of these offenses was so inflammatory compared to the other that they could not properly be tried together.
Macklem further contended that in light of his self-defense claim regarding the Doane case, the assault charge was weak and the murder case facts should not be allowed to support it. However, he is unable to show prejudice in this respect, since the trial court could reasonably evaluate both charges as relatively strong, since there was no dispute as to the identity of the perpetrator, but merely disputes about intent and motivation, in light of the psychological evidence. Even though the expert evaluations and diagnoses were inconclusive regarding the presence or absence of Asperger's, PDD-NOS, or neurological or brain abnormalities, the trier of fact could properly be allowed to sort out those factors in evaluating the evidence.
The jury was presented with evidence supporting the prosecution's theories that Macklem had the ability to control his actions and understand their consequences during both incidents. Macklem had been able to maintain relationships with friends and family and showed some age-appropriate social skills. He described his actions during the two incidents in a way that would support conclusions that he was making deliberate decisions to proceed with the attacks. He had shown aggressive behavior in the past when he was offended or angry. It does not make any difference that eventually, the rape charges were dropped and the jury could not reach a verdict on attempted murder *258 as to Doane. We analyze the ruling with respect to the facts as of the time of the motion. Further, the evidence as a whole separately supported the convictions on each count. (Mendoza, supra, 24 Cal.4th at pp. 159-162, 99 Cal.Rptr.2d 485, 6 P.3d 150.)
Finally, Macklem is not justified in relying on the special circumstances allegations originally made with respect to the rape charges, since the People were not seeking the death penalty as of the time the motion was decided at the outset of trial, nor was there any indication that the sentencing factors alleged under section 190.1, subdivision (a) were going to be reinstated for the purpose of seeking the death penalty. The jurors received instructions about the charges to be considered and were not reasonably likely to have been confused by that set of pleadings.
Based on the facts as of the hearing time, the trial court's ruling was reasonable and within the bounds of its discretion. The court had enough evidence before it to compare the manner of the attacks, showing some kind of similarity in motive, and the presence of planning in each case. Each case was individually supported by comparably strong evidence. Moreover, viewed in light of the evidence presented at trial, the judgment is not subject to reversal based on any unfairness in the joinder ruling that would amount to a denial of due process. (Mendoza, supra, 24 Cal.4th 130, 162, 99 Cal.Rptr.2d 485, 6 P.3d 150.)
III
CUSTODY CREDITS
At sentencing on May 27, 2005, the trial court awarded Macklem 616 actual days of presentence custody credit, by utilizing the date of his booking confinement, September 20, 2003. Macklem brought two ex parte motions seeking to have the trial court award him one additional day credit for time served, based on the theory that he was arrested before midnight on September 19, 2003, and he was therefore in "custody" one more day than the booking date of September 20, 2003 would reflect. The trial court denied the first motion without prejudice, based on the probation report data.
In support of the renewed motion, Macklem submitted an excerpt from trial testimony about the arrest, showing that he was placed in the police car at 10:30 p.m. on September 19 and remained there until after 1:00 a.m. on September 20, when evidence had been obtained and he was transported to jail. The trial court denied the renewed motion, first observing that the trial transcript did not specify when the arrest was actually made. For purposes of calculating credits, the court relied on People v. Smith (1989) 211 Cal. App.3d 523, 526, 259 Cal.Rptr. 515, dealing with an analogous situation of admission to and release from custody prior to sentencing. (§ 2900.5.) The trial court reasoned that Macklem was not delivered to the formal custody of the detention facility until he was booked, and he was entitled to sentencing credits beginning when he was actually officially booked into custody.
By supplemental brief, Macklem appeals. He argues the trial court erred in commencing credit for actual time he served in custody on the day he was booked into jail, rather than the earlier day of his arrest. He cites to section 4019, governing the award of presentence custody credit, as referring to a credit for all days of custody from the date of arrest, and therefore argues that he was deemed arrested when he was detained in handcuffs and placed in the police car the evening of September 19. (People v. Freund (1975) 48 Cal.App.3d 49, 54, 119 Cal.Rptr. 762; compare language of § 2900.5, defining custody for purposes of allocating credit *259 to those who are incarcerated for time served.)
The probation report indicates the date that Macklem was confined was September 20, and he remained so until the following May 27, when sentencing took place. On this record, the trial court properly awarded credit for time served because credit for time served commences on the day a defendant is booked into custody. (Ravaux, supra, 142 Cal.App.4th 914, 919-921, 49 Cal.Rptr.3d 211.) Properly interpreted, section 2900.5 authorizes the award of custody credits for time spent in residential detention facilities, not for time spent in police custody prior to that event. Macklem is not entitled to another day's custody credit for time served.
DISPOSITION
Judgment is affirmed.
WE CONCUR: McDONALD, and McINTYRE, JJ.
NOTES
[1] All further statutory references are to the Penal Code.
[2] In People v. Roldan (2005) 35 Cal.4th 646, 736, footnote 41, 27 Cal.Rptr.3d 360, 110 P.3d 289, the California Supreme Court characterized the holding of Fradiue, supra, 80 Cal.App.4th 15, 19-21, 95 Cal.Rptr.2d 1, as follows, while declining to address a similar issue not squarely presented: "[S]ome additional restraint, over and above mere incarceration, is required before an interrogation is custodial for Miranda purposes." (Roldan, supra, at p. 736, fn. 41, 27 Cal.Rptr.3d 360, 110 P.3d 289.)
[3] Another identifiable type of custody is long-term "institutional custody," as distinguished from temporary "Miranda custody." (State v. Overby (Georgia 1982) 249 Ga. 341, 290 S.E.2d 464, 465; Magid, supra, 58 Ohio St. L.J., p. 933, fn. 169.)
[4] Our analysis of the differences between Miranda custody and general detention or sentencing custody is intended to focus on whether Miranda warning obligations have been independently triggered by the happening of an event that significantly affects the prisoner's current custodial status. (See Perkins, supra, 496 U.S. 292. 296-299, 110 S.Ct. 2394, 110 L.Ed.2d 243.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276155/ | 56 Cal.Rptr.3d 901 (2007)
149 Cal.App.4th 342
Conservatorship of the Person OF AMANDA B.
San Diego County Health and Human Services Agency, Petitioner and Respondent,
v.
Amanda B., Objector and Appellant.
No. D048591.
Court of Appeal of California, Fourth District, Division One.
March 13, 2007.
Christopher Blake, San Diego, under appointment by the Court of Appeal, for Objector and Appellant.
John J. Sansone, County Counsel, and Leonard W. Pollard II, Senior Deputy *902 County Counsel, for Petitioner and Respondent.
AARON, J.
I.
INTRODUCTION
Amanda B. appeals from a judgment establishing a conservatorship for her under the Lanterman-Petris-Short Act (LPS Act).[1] (Welf. & InstCode, § 5000 et seq.)[2] Amanda challenges the judgment on two grounds. Amanda first contends that the trial court's finding that she lacks the capacity to make medical decisions unrelated to her grave disability is not supported by substantial evidence. Second, Amanda asserts that the trial court erred by assigning her level of placement as a locked treatment facility or a board and care facility. According to Amanda, the trial court was required to determine the "least restrictive placement" appropriate for her, and that by leaving the choice of the level of placement to the discretion of the conservator, the trial court failed to carry out its duty, as required under the LPS Act.
We conclude that substantial evidence supports the trial court's finding that Amanda is unable to make medical decisions unrelated to her grave disability. However, the trial court erred in failing to specifically designate the appropriate level of placement for Amanda. We therefore remand the case to the trial court for a determination as to the least restrictive alternative placement appropriate for Amanda.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On February 22, 2006, the San Diego County Health and Human Services Agency (Agency), through its Office of the Public Conservator (OPC), filed a petition to establish a conservatorship for Amanda under section 5350 of the LPS Act.
At the time OPC filed the petition to establish a conservatorship for Amanda, she was 42 years old and homeless. She had been placed at Scripps Mercy Hospital for care.
Amanda had previously been on a conservatorship from August 2004 to November 2005. When the conservatorship expired, Amanda was released from psychiatric care. At that time, Amanda was diabetic and morbidly obese.
Amanda requested in this case that a jury determine whether she had a grave disability. The trial commenced on May 1, 2006. Dr. Ezequiel Esparza, a psychiatrist at Scripps Mercy Hospital, testified as to his assessment of Amanda, which was based on his having treated her for several *903 weeks in February and March 2006. Dr. Esparza saw Amanda five or six times per week for 10 to 20 minutes at a time, and diagnosed her as suffering from disorganized schizophrenia. Symptoms of this type of schizophrenia include delusional thinking, and disorganized thinking and behavior. Dr. Esparza testified that while Amanda was hospitalized, she exhibited disorganized thinking and poor personal hygiene. Amanda was under a delusion that she was a Roman Catholic nun and that she had appeared in the movie "Sister Act" with Whoopi Goldberg.
Amanda's medical records indicate that she was hospitalized on at least two other occasions in 2004 and 2005. Dr. Esparza was unable to obtain an accurate history for Amanda because she could not provide reliable information regarding her past, and no known relatives were available to assist doctors in gathering her history.
While in the hospital, Amanda complied with hospital rules and regulations. However, her recent history indicated that upon being released from a hospital setting, Amanda failed to take her medications or obtain treatment for the conditions underlying her grave disability. Dr. Esparza did not believe that Amanda was capable of appropriately managing her money or her disability funds.
Michele Clemons is a mental health specialist for San Diego County Department of Mental Health, and was Amanda's case manager during Amanda's previous conservatorship, from August 2004 to November 2005, while Amanda was placed at the Alpine Locked Treatment Center. At the time of trial, although Amanda's previous conservatorship had expired, Clemons was continuing to serve as Amanda's designated payee for Amanda's disability payments. Clemons testified about her relationship with Amanda, and discussed conversations she had had with Amanda regarding Amanda's diabetes. On several occasions when Clemons asked Amanda whether she was taking her medications and/or getting insulin shots, Amanda told Clemons that she did not have diabetes. Clemons was unable to answer the question whether Amanda still denied having diabetes because Clemons had not seen Amanda "for sometime [sic]."
Amanda testified and gave a confusing account of her childhood. She claimed that she had been kidnapped as a child and had been called Tabitha. She said that her birth certificate had been altered, including her name and birthdate. Amanda indicated that she was a nun in France in 1927 with the religious name Sister Mary Bishop, that she had appeared in commercials for L'Oreal, and that her husband is the actor Keifer Sutherland, who lives in Los Angeles because he is on a television show. When asked whether she believes she has a mental disorder, Amanda responded, "II believe II have headaches and migraines, which are normal, but I don't believeI don't believe I have a mental disorder."
Outside the presence of the jury, Dr. Esparza offered his opinion concerning the disabilities[3] he believed the court should impose on Amanda. Dr. Esparza believed Amanda could safely drive if she possessed a valid driver's license. However, he was concerned about her ability to enter into contracts. Dr. Esparza stated that he thought that Amanda was capable of making routine medical decisions unrelated to *904 her grave disability. Dr. Esparza was not specifically asked about Amanda's diabetes or her ability to made decisions regarding treatment for it. When asked about the appropriate level of placement for Amanda, Dr. Esparza indicated that he believed Amanda could live in a board and care facility if "she's given medication, she takes it, and she; is court ordered to do so...."
On May 3, 2006, the jury found that Amanda was gravely disabled. On that same day, the trial court filed a document entitled "Judgment and Order After Trial By Jury," in which the court determined the disabilities to be imposed on Amanda and her appropriate level of placement. The court imposed all of the standard disabilities with the exception that Amanda retained the right to vote and to possess a driver's license. The court set Amanda's level of placement as a "Locked Facility or Board and Care."
Amanda filed a timely notice of appeal.
III.
DISCUSSION
A. Substantial evidence supports the court's conclusion that Amanda is incapable of making medical decisions unrelated to her grave disability
Amanda seeks reversal of that portion of the trial court's order granting the conservator the power to make medical decisions unrelated to her grave disability. According to Amanda, there was no substantial evidence to support the trial court's conclusion that she is incapable of making medical decisions unrelated to her grave disability.
An appellate court reviews the trial court's factual findings to determine if there is substantial evidence to support them, and will sustain the trial court's factual findings if there is substantial evidence to support those findings, even if there exists evidence to the contrary. (Conservatorship of Isaac O. (1987) 190 Cal.App.3d 50, 57, 235 Cal.Rptr. 133.) "In making the determination [regarding substantive evidence], we view the entire record in the light most favorable to the trial court's findings. [Citations.] We must resolve all conflicts in the evidence and draw all reasonable inferences in favor of the findings. [Citation.] Substantial evidence is evidence of ponderable legal significance. [Citations.]" (Conservatorship of Ramirez (2001) 90 Cal.App.4th 390, 401, 108 Cal.Rptr.2d 581.)
There is substantial evidence in the record to support the trial court's finding that Amanda is not capable of making routine medical decisions. Michele Clemons, Amanda's previous case manager, testified that between August 2004 and November 2005, she had spoken with Amanda about Amanda's diabetes several times, and Amanda "responded on several occasions that she didn't have diabetes." After Amanda's conservatorship expired in November 2005, Clemons remained in telephone contact with Amanda. Clemons received approximately six calls from Amanda between Amanda's hospitalizations in December 2005 and February 2006. During those conversations, Clemons asked Amanda about a number of things, including Amanda's diabetes. Clemons remembered that Amanda's responses to Clemons's questions regarding whether she was taking medication for her diabetes were "vague," and that sometimes Amanda told her that she was taking the medication. However, Clemons's testimony suggested that she doubted the truth of Amanda's statements, because Amanda was exhibiting signs suggesting that she was not taking her medications.[4]
*905 Amanda testified about her diabetes at the trial. Her responses to the questions posed suggest that although she appeared to recognize that she had diabetes, she did not understand that it is a chronic illness that requires consistent treatment. Counsel for the public conservator and Amanda engaged in the following colloquy:
"Q. Do you have diabetes?
"A. I think I have on [sic]I don't know. This is the second time I had it to where it will go away. It's a matter of taking insulin. And I never had to take the pills. The pills scare me. I don't like pills.... And this family does not take them. Say you are not supposed to. It's kind of scary to be on that medication. It slows you down.
"Q. Do you take medication for your
"A. Oh, yeah, I do take it because I think it's the right thing to do right now until this is over with. I do take it."
Amanda's statements show that she was not sure whether she suffered from diabetes, and suggest that to the extent she did understand she had diabetes, she was under the impression that it might "go away." She testified that she did not like pills, and felt that "be[ing] on that medication" was "scary." Although Amanda's testimony implies that at the time of trial she was taking medication to treat her diabetes, it also indicates that she believed that the need to take the medication was temporary. She stated that taking the medication was "the right thing to do right now until this is over with." This testimony indicates that Amanda did not possess a good understanding of her medical needs. A reasonable inference is that Amanda's failure to grasp the nature of her physical condition would cloud her ability to make decisions regarding her assorted health problems, most notably her diabetes.
Additionally, Amanda's history demonstrates that when she is not under a conservatorship, she does not take her medications or seek appropriate medical care. This is an indication that she might not fully comprehend her medical needs. For example, when she was admitted to Scripp's Mercy Hospital, Amanda presented with edema of her lower extremities and an abscess in her toe. After she was moved to the hospital's psychiatric unit, doctors found an abscess on her right posterior thigh. Amanda indicated that she had been bitten by a rat while she was homeless.
Amanda relies on Dr. Esparza's testimony to support her contention that the trial court's decision regarding her inability to make medical decisions is not based on substantial evidence. When asked, "In your opinion is Amanda . . . capable of making medical decisions concerning routine medical treatment unrelated to her mental disorder?" Dr. Esparza responded, "Yes." Dr. Esparza then stated that he did not believe that Amanda was capable of making medical decisions related to her mental illness because "[fundamentally her illness affects her reasoning and she *906 does not believe that she has a mental illness."
The court acknowledged Dr. Esparza's statement that Amanda could make medical decisions unrelated to her grave disability, but chose to give more weight to the other evidence in the record. The court stated, "I understand the doctor said [Amanda] could make medical decisions outside of her mental health issue, but then I heard the testimony that she has diabetes and she has not been treating it appropriately, and not accepting that it needs to be treated appropriately." The trial court was not bound by Dr. Esparza's testimony regarding Amanda's ability to make medical decisions unrelated to her mental health, and was free to make this determination. (See Conservatorship of McKeown (1994) 25 Cal.App.4th 502, 509, 30 Cal.Rptr.2d 542 ["As a general rule, `[p]rovided the trier of fact does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]' [Citation.] This rule is applied equally to expert witnesses. [Citations.]"].)
In a report filed with the Agency's petition to establish a conservatorship for Amanda, Dr. Esparza indicated a different opinion regarding Amanda's ability to make medical decisions unrelated to her grave disability. In that document, Dr. Esparza's recommendation was that Amanda "should not ... have the right to refuse or consent to medical treatment unrelated to the conservatee's being gr[avely] disabled...."[5] Thus, Dr. Esparza himself provided conflicting evidence to the court. The court resolved the conflict in favor of giving the conservator the authority to make medical decisions for Amanda. This court should not second guess the trial court's resolution of this evidentiary conflict:
"In reviewing the evidence on appeal, all conflicts must be resolved in favor of the judgment, and all legitimate and reasonable inferences indulged in to uphold the judgment if possible. When a judgment is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the judgment. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. [Citations.]" (Quintanilla v. Dunkelman (2005) 133 Cal.App.4th 95, 113-114, 34 Cal.Rptr.3d 557.)
The record demonstrates that there is substantial evidence to support the trial court's finding that Amanda should not be allowed to refuse or consent to routine medical treatment unrelated to her grave disability. We therefore affirm this portion of the trial court's judgment.
B. The trial court's order does not meet the statutory requirement that the court select the "least restrictive placement" for the conservatee
Amanda contends that the trial court's order is invalid because the court failed to determine the appropriate level of placement for her, as required under section 5358. On the issue of Amanda's placement, the judgment states, "The least restrictive level of placement available and necessary to achieve the purpose of treatment for Amanda ... is a Locked Facility or Board and Care." The legislative *907 scheme contemplates that the court, not the conservator, is to designate the "least restrictive alternative placement" appropriate for a conservatee upon the establishment of the conservatorship.
Section 5358 provides the framework for placement of a conservatee. Subdivision (a)(1)(A) of that provision, which is applicable to Amanda because she has been determined to be gravely disabled as defined in subdivision (h)(1)(A) of section 5008,[6] provides:
"(a)(1) When ordered by the court after the hearing required by this section, a conservator appointed pursuant to this chapter shall place his or her conservatee as follows:
"(A) For a conservatee who is gravely disabled, as defined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008, in the least restrictive alternative placement, as designated by the court." (§ 5358, subd. (a)(1)(A).)
Thus, the court is to designate the least restrictive alternative placement for the conservatee. Section 5358, subdivision (c)(1) provides further instruction as to placement of the conservatee, and specifically identifies the court as having the responsibility to set the appropriate level of placement:
"(c)(1) For a conservatee who is gravely disabled, as defined in subparagraph (A) of paragraph (1) of subdivision (h) of Section 5008, if the conservatee is not to be placed in his or her own home or the home of a relative, first priority shall be to placement in a suitable facility as close as possible to his or her home or the home of a relative. For the purposes of this section, suitable facility means the least restrictive residential placement available and necessary to achieve the purpose of treatment. At the time that the court considers the report of the officer providing conservatorship investigation specified in Section 5356, the court shall consider available placement alternatives. After considering all the evidence the court shall determine the least restrictive and most appropriate alternative placement for the conservatee. The court shall also determine those persons to be notified of a change of placement. The fact that a person for whom conservatorship is recommended is not an inpatient shall not be construed by the court as an indication that the person does not meet the criteria of grave disability." (§ 5358, subd. (c)(1) (italics added).)
The trial court's order as to Amanda's placement is an ambiguous designation because it indicates two different levels of care. There is nothing in the statute that suggests that the trial court's determination of the least restrictive placement may be an "either/or" designation of multiple levels of care. Rather, in discussing "the least restrictive alternative placement," the statutory scheme envisions that the court will set a single level of placement as the least restrictive placement. (Italics added.)
Essentially conceding that the trial court's order is erroneous, the Agency asserts that this court may correct the judgment on appeal "to comport with the record."[7] The Agency maintains that because *908 the record shows that Amanda had been treated in a locked facility and because the conservatorship investigation report proposes that a locked treatment facility would be the least restrictive placement for Amanda, this court should interpret the judgment as simply, albeit unnecessarily, recognizing that the conservator has the authority to transfer Amanda to a board and care facility if and when she is able to function in one.
It is true that section 5358 gives conservators the discretion to move a conservatee to a less restrictive placement without the approval of the court:
"Except for a conservatee who is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008, the conservator may transfer his or her conservatee to a less restrictive alternative placement without a further hearing and court approval. In any case in which a conservator has reasonable cause to believe that his or her conservatee is in need of immediate more restrictive placement because the condition of the conservatee has so changed that the conservatee poses an immediate and substantial danger to himself or herself or others, the conservator shall have the right to place his or her conservatee in a more restrictive facility or hospital. Notwithstanding Section 5328, if the change of placement is to a placement more restrictive than the court-determined placement, the conservator shall provide written notice of the change of placement and the reason therefor to the court, the conservatee's attorney, the county patient's rights advocate and any other persons designated by the court pursuant to subdivision (c)." (§ 5358, subd. (d)(1).)
However, the fact that a conservator possesses the discretion to move the conservatee to a less restrictive placement does not eliminate the duty of the court to set the initial level of placement. The trial court in this case did not designate the level of placement, but rather, offered two options from which the conservator was to choose. It is clear that the trial court was not simply reaffirming the discretion given to the conservator to place Amanda in a less restrictive alternative placement once she no longer required the restrictions of a locked facility. The transcript of the hearing establishes that the trial court intended to delegate to the conservator the court's responsibility to make the initial designation of the least restrictive alternative placement:
"The Clerk: The only thing I need to know is where the patient is being placed. And they have given a whole bunch of
[¶]... [¶]
"The Court: What is the name of the place?
"Mr. Maphis: Lakeside Special Care Center.
"The Court: Is Lakeside. Well, number three says the least restrictive level of placement available and necessary.
"Mr. Short: I thought the doctor testified he thought she could not handle a board and care.
"The Court: No, I'm not making a ruling on that. I would like to see her in a board and care if it could be done and she could handle it. And that will be up to the conservator to deal with. They can get her to a board and care where she functions fine.
"Mr. Short: But it's up to the court at this particular moment.
"The Court: Well, I will authorize it.
That's not the point.
"Mr. Short: Oh, okay.
"The Court: It's not for me to say. Maybe the least restrictive care would be board and care.
*909 "Mr. Beal: Well, Your Honor
"The Court: Under three.
"Mr. Beal: Right now she's in a locked facility. And I think number three is asking for the general type. It's not asking for where she is now. So it's asking for locked facility.
"The Court: It says least restrictive level of placement.
"Mr. Beal: So the level would be locked facility or board and care. That's a different level of placement. But we are seeking a locked facility on the basis of Dr. Esparza's testimony. And we know that's the least restrictive.
"The Court: I will say locked facility or board and care and leave it to the conservator to try to work it out.
"Mr. Maphis: General.
"The Court: That's what I am saying. So I will just say the least restricted locked facility or board and care and leave it to your discretion to try to place her as best you can.
"Mr. Maphis: Okay."[8]
The trial court was incorrect in concluding, "It's not for [the court] to say," with regard to the determination of the least restrictive alternative placement. That determination is to be made by the court in the first instance, not the conservator. It was improper for the court to "leave it to the conservator to try to work it out." Because the trial court must determine the least restrictive alternative placement appropriate for a conservatee, we reverse that portion of the trial court's judgment and remand the matter for the trial court to designate the least restrictive level of placement appropriate for Amanda.
IV.
DISPOSITION
The judgment of the trial court is reversed insofar as it designates that the least restrictive alternative placement for Amanda is a locked facility or a board and care facility. The matter is remanded to the trial court to designate a single level of placement that represents the least restrictive alternative placement available and necessary to achieve the purpose of treatment for Amanda. In all other respects the judgment is affirmed.
HALLER, Acting P.J., and McINTYRE, J., concur.
NOTES
[1] "The LPS Act is a comprehensive scheme designed to address a variety of circumstances in which a member of the general population may need to be evaluated or treated for different lengths of time. (§ 5150 [short-term emergency evaluation]; § 5250 [intensive 14-day treatment]; § 5300 [180-day commitment for the imminently dangerous]; § 5260 [extended commitment for the suicidal]; § 53513 [30-day temporary conservatorship or one-year conservatorship for the gravely disabled].) ... [¶] A stated purpose of the LPS Act is to provide `prompt evaluation and treatment of persons [from the general population] with serious mental disorders.' (§ 5001, subd. (b).) ... To achieve this purpose, a number of LPS Act provisions allow a person to be removed from the general population in order to be civilly committed based on a probable cause determination made by a mental health or law enforcement professional, and then to challenge the civil commitment within a reasonable time afterwards." (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253-254, 127 Cal.Rptr.2d 177, 57 P.3d 654.)
[2] Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[3] In this context, the term "disabilities" refers to the limitations a court may impose on a proposed conservatee as listed in section 5357. Examples of disabilities a court may impose include, inter alia, taking away the privilege of possessing a driver's license, limiting a conservatee's right to enter into contracts, and disqualifying a conservatee from voting.
[4] Clemons voiced concern during questioning by the attorney for the Agency:
"Q. Were you asking her questions about whether she was taking her medication for [diabetes]?
"A. Yes.
"Q. What was her response to those types of questions?
"A. I seem to recall her being vague, or sometimes telling me, yes, she was taking them. But I was seeing signs such as her having long pauses in between answering questions. That concerned me...."
Later during that line of questioning, Clemons said, "But obviously now that she's in the hospital I am getting this phone call from the social worker Darin Folk. I realize [after hearing that she was in the hospital] that she's decompensated psychiatrically. So it was my belief at that time that she wasin fact, as I thoughtprior when I saw her downtown, she was off her medications; not taking them."
[5] The copy of the document provided to the court cuts off words at the right side of the page, so that only the letters "gr" can been seen after the phrase "unrelated to the conservatee's being" and before the word "disabled" on the next line. From context, we discern that the word cut off on the copy provided is "gravely."
[6] Under section 5008, subdivision (h)(1)(A), the term "gravely disabled" means "A condition in which a person, as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter." Section 5008, subdivision (h)(1)(B) provides an alternative definition of "gravely disabled" applicable to those who have been found to be mentally incompetent under section 1370 of the Penal Code.
[7] The Agency states, "If the trial court erred in placing Amanda in a `locked facility or board and care' [citation], this Court may correct the judgment to comport with the record."
[8] Mr. Short was representing Amanda, Mr. Beal was representing the Agency, and it appears that Mr. Maphis is a member of OPC. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276160/ | 57 Cal.Rptr.3d 79 (2007)
149 Cal.App.4th 636
The PEOPLE, Plaintiff and Respondent,
v.
Janet M. BRADUS, Defendant and Appellant.
No. D047774.
Court of Appeal of California, Fourth District, Division One.
March 23, 2007.
*80 Bill Lockyer, Atty. Gen., Mary Jo Graves, Chief Asst. Atty. Gen., Gary W. Schons, Senior Asst. Atty. Gen., Marvin E. Mizell and Maxine Cutler, Deputy Attys. Gen., Office of the Attorney General, San Diego, CA, for Plaintiff and Respondent.
Charles R. Khoury, Jr., under appointment by the Court of Appeal, Wilton, NH, for Defendant and Appellant.
HUFFMAN, Acting P.J.
Janet Bradus appeals from an order denying her petition to expunge a 1999 drug conviction following termination of her probation. (Pen.Code, § 1203.4.)[1] She contends relief under section 1203.4 must be granted because she fulfilled the conditions of her probation as required by law and the trial court essentially erred in denying her petition based on outstanding attorney fees and costs of probation that are not conditions of probation or requirements for section 1203.4 relief. We agree and reverse the trial court's order.
FACTUAL AND PROCEDURAL
BACKGROUND
On October 1,1999, as part of an agreement which dismissed one count of transporting more than 28.5 grams of marijuana (Health & Saf.Code, § 11360, subd. (a); count 1), Bradus pleaded guilty to possessing marijuana for sale (Health & Saf.Code, § 11359; count 2). The trial court thereafter suspended imposition of sentence and placed Bradus on three-years formal probation on specific terms and conditions, including 21 days in custody and the payment of fines and restitution set forth in the presentence order. After Bradus reviewed the presentence order and agreed to its terms, the court signed the formal order granting probation. The court required that Bradus pay a fine of $400, including penalty assessment; a $400 restitution fine under section 1202.4, subdivision (b); a $50 laboratory analysis fee; and a $150 drug program fee. These amounts were to be paid at a combined rate of $50 per month beginning 60 days after Bradus's release from custody.[2] The written order granting probation also ordered Bradus to pay appointed attorney fees in the amount of $507, and to pay *81 certain costs of probation. With regard to these costs, the order specifically stated:
"You are ordered to cooperate with the Probation Officer or authorized representative as directed in the preparation of financial evaluations. If it is determined that you have present ability to repay the county for costs of the presentence investigation and/or costs of probation supervision, and you do not agree with such determination, you have a right to a hearing before the court to determine your present ability. Failure to cooperate with the financial evaluation will be deemed a waiver of your right to such hearing, and a civil judgment will be entered against you for the amount of funds expended for the above services. These costs are presently set at $869.00 for the presentence investigation and $56.00 per month for probation supervision."
On September 2, 2005, after completing her probationary period, Bradus's attorney filed a petition under section 1203.4 requesting "the Court set aside [Bradus's 1999 conviction,] enter a plea of not guilty, and order the charge[ ] dismissed." Relief was requested based upon Bradus having completed her three years of probation on November 16, 2002, and having "fulfilled the conditions of probation for the entire period of probation." In response, the probation department filed an investigation report stating that Bradus was not eligible for the relief requested because the records check with "Revenue and Recovery" showed she still "owes $481.00 [in] fines, $507.00 [in] attorney fees, along with probation costs of $1,897.00 for a total of $2,885.00."
At the hearing on the matter, Bradus's attorney advised the court that Bradus, who lived out of state, had paid off the fines of $481, and that he had a faxed copy from Revenue and Recovery showing she had paid such fines. Although conceding "there are attorneys' fees and probation costs outstanding," counsel noted "those are not conditions of probation" and asked the court "to grant the [section] 1203.4 relief." The People submitted the matter.
The court denied Bradus's petition, stating, "The request is denied as the attorney fees and probationary costs are typically required before relief can be granted." When Bradus's counsel asked what the court meant "[w]hen the court [said] `typically required,'" the judge replied, "I am requiring her to pay the attorneys' fees and costs before we grant the [section] 1203.4 relief."
DISCUSSION
On appeal, Bradus contends the trial court improperly denied relief under section 1203.4 because she had satisfied the statutory requirements by fulfilling the conditions of her probation for the entire probationary period, and as a matter of law the reimbursement of the costs of probation and appointed attorney fees are not conditions of probation on which the court can properly deny such relief. Bradus additionally attacks the validity of the appointed attorney fees order as a purported probation condition on grounds it was apparently added after the probation and sentencing hearing.[3]
Although conceding that appointed attorney fees and costs of probation cannot be conditions of probation, the People counter that the court's denial was proper *82 because me attorney fees and costs or probation are orders legislatively authorized, Bradus still owed $481 in fines, and "[t]he rehabilitative purposes of probation would be ill served if [Bradus] could have her conviction expunged without first complying with the court's orders to pay reasonable fines and assessments lawfully imposed. (People v. Covington [(2000)] 82 Cal.App.4th [1263, 1270, 98 Cal.Rptr.2d 852].)" The People further argue that Bradus's failure to object to the attorney fees' order at the hearing or during her probationary period forfeits her right to challenge that order at this time.
As we explain, the trial court erred as a matter of law in denying Bradus's petition for relief under section 1203.4. Preliminarily, however, we make several observations. Contrary to the People's representations, the record shows that Bradus had no outstanding fines at the time of the hearing on her petition, as evidenced by a fax from Revenue and Recovery that she had paid the $481 in fines. Also, we believe the People have misconstrued Bradus's additional argument concerning the attorney fees' order. She does not dispute that such fees are outstanding. Nor does she dispute the fact that probation costs are outstanding. Bradus merely argues such fees and costs are not conditions of probation which must be fulfilled before section 1203.4 relief is granted.
Returning to the issue before us, we note that subdivision (a) of section 1203.4 provides in pertinent part that:
"In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, ... the defendant shall, at any time after the termination of the period of probation, ... be permitted by the court to withdraw ... her plea of guilty ... and enter a plea of not guilty; ... and, ... the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, ... she shall thereafter be released from all penalties and disabilities resulting from the offense of which .., she has been convicted ..."
"[A] defendant moving under section 1203.4 is entitled as a matter of right to its benefits upon a showing that [she] 'has fulfilled the conditions of probation for the entire period of probation.' It was apparently intended that when a defendant has satisfied the terms of probation, the trial court should have no discretion but to carry out its part of the bargain with the defendant." (People v. Chandler (1988) 203 Cal.App.3d 782, 788, 250 Cal.Rptr. 730 (Chandler); see also People v. Hawley (1991) 228 Cal.App.3d 247, 249-250, 278 Cal.Rptr. 389 (Hawley).) "`The expunging of the record of conviction is, in essence, a form of legislatively authorized certification of complete rehabilitation based on a prescribed showing of exemplary conduct during the entire period of probation.' [Citation.]" (Chandler, supra, 203 Cal.App.3d at pp. 788-789, 250 Cal. Rptr. 730.)
Although the trial court is statutorily authorized to make respective orders for the payment of appointed attorney fees and for the costs of probation, depending on a defendant's ability to pay, such costs and fees cannot legally be imposed as conditions of probation. (§§ 987.8, 1203.1b; People v. Flores (2003) 30 Cal.4th 1059, 1067, fn. 5, 135 Cal.Rptr.2d 63, 69 P.3d 979; People v. Hart (1998) 65 Cal.App.4th 902, 906-907, 76 Cal.Rptr.2d 837.) The costs of probation imposed for preparation of the probation report and of supervising probation "may not be a condition of probation as the costs are collateral and [section 1203.1b] itself provides for enforcement of the order by civil collection." (Hart; supra, 65 Cal.App.4th at p. 907, 76 *83 Cal.Rptr.2d 837' see also People v. Washington (2002) 100 Cal.App.4th 590, 122 Cal. Rptr.2d 740 (Washington).) Attorney fees are constitutionally proscribed as probation conditions because they would "exact[ ] a penalty for the exercise of a constitutional right. Thus, the trial court may order defendant to pay for costs of probation and attorney fees, but may not condition defendant's grant of probation upon payment thereof." (Hart, supra, 65 Cal. App.4th at p. 907, 76 Cal.Rptr.2d 837.) Orders for appointed attorney fees and for probation costs are merely entered at the time of judgment and sentencing and "may be enforced as permitted in the relevant statutes."[4] (Ibid.)
Here, it was established at the hearing that Bradus had fulfilled all the conditions of her probation, including the payment of the $481 in fines initially noted as outstanding by the probation investigative report that was filed in response to her petition. No evidence against relief under section 1203.4, except for the mention of the outstanding attorney fees and costs of probation ordered, was presented to show that Bradus's three year period of probation had been revoked or extended, that she had committed any new offenses, or that she had faced any charges for contempt in violating the conditions of her probation. Because her original grant of probation was in "effect, a bargain made by the People, through the Legislature and the courts, with [her]," whereby she was, in essence, told that if she complied with the requirements of probation, she "may become reinstated as a law-abiding member of society" (People v. Johnson (1955) 134 Cal.App.2d 140, 143, 285 P.2d 74), and the evidence showed Bradus had fully performed her part of the bargain by satisfying the statutory requirement of section 1203.4 that she fulfill "the conditions of probation for the entire period," the trial court had "no discretion but to carry out its part of the bargain with [Bradus]. [Citation.]" (Chandler, supra, 203 Cal. App.3d at p. 788, 250 Cal.Rptr. 730.) In other words, the trial court had an obligation to keep its end of the bargain, that is, to remove the blemish of a criminal record by granting Bradus's motion under section 1203.4 (Chandler, supra, 203 Cal. App.3d at p. 789, 250 Cal.Rptr. 730.)
Despite this straightforward authority and the earlier noted concession that the orders for attorney fees and probation costs are not conditions of Bradus's probation, the People argue those outstanding orders for payments by Bradus were nonetheless proper grounds for the trial court to deny her petition for relief under section 1203.4. The People argue that it would ill serve the rehabilitative purposes of probation if Bradus could have her conviction expunged without first complying with the court's orders to pay appointed attorney fees and costs of probation. In essence, the People are asking us to analogize such legislatively authorized fees and costs to fines and assessments which are lawfully imposed as conditions of probation. To do so, however, is clearly improper in light of the above established law.
We recognize that section 1203.1b and other recoupment statutes reflect a strong legislative policy in favor of shifting costs arising from criminal acts back to convicted defendants and replenishing public coffers from the pockets of those who have directly benefited from county expenditures. *84 (See People v. Valtakis (2003) 105 Cal.App.4th 1066, 130 Cal.Rptr.2d 133; Washington, supra, 100 Cal.App.4th 590, 122 Cal.Rptr.2d 740.) We also recognize, however, that subdivision (c) of section 1203.4 provides that a person who petitions for relief may be "required to reimburse the court for the actual cost of services rendered," but any reimbursement of costs "shall not be a prerequisite to a person's eligibility under this section." Accordingly, we believe the Legislature has evidenced a determination that the nonpayment of orders under such statutory recoupment provisions to reimburse a county for appointed attorney fees and probationary costs, should not prohibit relief under subdivision (a) of section 1203.4.
On this record, it appears the trial court denied Bradus's petition for relief under section 1203.4 on its own apparent policy or hidden condition to not grant relief until orders to repay the county for probation costs and appointed attorney fees are paid. However, based on the above and the record showing that Bradus is entitled to the mandatory relief she requested under 1203.4, subdivision (a), we conclude the trial court erred as a matter of law in denying her petition. Accordingly, we vacate the trial court's order denying Bradus relief and direct the court to enter a new order granting her petition.[5] (See Hawley, supra, 228 Cal.App.3d 247, 251, 278 Cal.Rptr. 389.)
DISPOSITION
The trial court's order denying Bradus's application for relief under section 1203.4 is reversed and the matter is remanded to the trial court. On remand, the trial court is directed to vacate its order denying Bradus's petition under section 1203.4, subdivision (a), and to enter a new order granting her petition.
WE CONCUR: NARES and McINTYRE, JJ.
NOTES
[1] Unless otherwise indicated, all statutory references are to the Penal Code.
[2] The court orally stated Bradus would start paying the fees and fines 60 days from the hearing date.
[3] In support of this argument, Bradus augmented the record to show that the recommended probation order she had reviewed with her counsel did not have appointed attorney fees checked even though the subsequently filed order for attorney fees was checked.
[4] To impose an order for appointed attorney fees or for probation costs, the trial court must follow the statutory procedures outlined in sections 987.8 and 1203.1b. Generally, after the criminal proceedings are completed (and not as a part of sentencing), the court holds a hearing to determine the defendant's present ability to pay attorney fees and the probation costs. (§§ 987.8, 1203.1b.)
[5] Because the only matter before the trial court was Bradus's petition for relief under section 1203.4, her appeal is likewise limited. We decline to address the collateral issues concerning the orders for appointed attorney fees and the costs of probation which are not properly before this court at this time. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276165/ | 56 Cal.Rptr.3d 675 (2007)
149 Cal.App.4th 22
The PEOPLE, Plaintiff and Respondent,
v.
Ricky Verrell BAUGHMAN, Defendant and Appellant.
No. C050147.
Court of Appeal of California, Third District.
March 29, 2007.
Maribeth Halloran, under appointment by the Court of Appeal, Mill Valley, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, David A. Rhodes, Supervising Deputy Attorney General, Clayton S. Tanaka, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.[*]
ROBIE, J.
Defendant Ricky Verrell Baughman was convicted after a jury trial of incest, oral copulation of a person under the age of 16, and 10 counts of lewd and lascivious acts upon a child more than 10 years younger than defendant. Sentenced to nine years eight months in state prison, defendant appeals. He contends there was insufficient evidence to support three of the counts for committing lewd and lascivious *676 acts and that the trial court erred in failing to instruct the jury with a specific acts unanimity instruction as to the incest count. He also contends his upper term sentence violates Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (Blakely). We reject his contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The victim, F., was born in November 1989. She and her two brothers lived in a trailer with their father. F. testified that "a little while after Christmas"approximately "three or four months" after her 14th birthdaydefendant placed his hand on her breast, under her shirt and bra, while she was lying in bed. He left his hand there for a "long time."
Later that same day, while the family was at defendant's mother's house, defendant apologized to F. and said it would "never happen again." Within five minutes, however, defendant closed the bathroom door, had F. remove her panties, and licked F.'s vagina as she sat on the toilet. After a minute or two, defendant removed his pants and had sexual intercourse with F. Afterward, he again told her he was sorry and it would never happen again.
Defendant, however, continued to have sex with F. just about every week. Nearly every time, defendant would apologize and promise it would never happen again. The incidents occurred when F.'s brothers were gone or asleep. Sometimes defendant gave her brothers money to go to the store and would then have sex with F. while they were gone. Defendant would tell the brothers to slow down if they returned too quickly. On one occasion, F.'s brothers awoke while defendant was having sex with F. and saw defendant "going up and down." When F.'s brothers told defendant they thought he and F. were having sex, defendant got upset, raised his voice, and said he and F. had just been playing around.
On November 11, 2004, a couple of weeks after the final incident, F. told an adult friend that defendant was having sex with her and she could no longer stay with him. F. was interviewed by police. Although being scared and nervous, she failed to mention that defendant had also had sex with her on that first occasion when he licked her vagina.
Defendant was interviewed by police on November 17, 2004. In that interview, he denied any sexual contact with F. However, on November 19, 2004, during a consultation with Billy Lee Wilson, Jr., a marriage and family therapist intern at Shasta Treatment Associates, defendant admitted he had a sexual relationship with F. Defendant told Wilson that he had sexual intercourse with F. between four to six times, "[o]ne to two years before" the date of the consultation. Also, on December 1, 2004, in another interview with police, defendant admitted he had sexual intercourse with F. several times.
At trial, defendant testified he did not remember having sex with F., although he did not deny it. Defendant did not remember speaking with Wilson and said he admitted having sex with F. to the police because the police made him fear F. would commit suicide or turn to drugs or prostitution if he said she was lying. Defendant said he had problems with his memory due to a head injury he sustained a few years earlier.
DISCUSSION
*677 I[**]
II
Unanimity Instruction
Defendant also contends the trial court failed to give the required specific acts unanimity instruction for the one count of incest. He contends this omission resulted in a violation of his state and federal constitutional due process rights and his state constitutional right to a unanimous verdict. There was no error.
The requirement of jury unanimity "`is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.' [Citation.] ... `The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count.'" (People v. Russo (2001) 25 Cal.4th 1124, 1132, 108 Cal.Rptr.2d 436, 25 P.3d 641, italics omitted.)
With respect to the charge of incest, defendant was charged with one count alleged to have occurred between December 1, 2003, and September 30, 2004. The evidence presented and argued by the prosecution consisted of at least two specific instances, as well as testimony it occurred weekly" for approximately nine months. The prosecution did not select any specific act to prove the charge. Therefore, a unanimity instruction was required.
The court instructed the jury with CALJIC No. 4.71.5 which has two variations. In the first, the jury is told that, "in order to find the defendant guilty, you must unanimously agree upon the commission of [the same specific act [or acts] constituting the crime] ... within the period alleged" (the "specific acts version").
In the second, which was given by the court here and did not distinguish among the charges, the jury was told it "must unanimously agree upon the commission of ... [all of the acts described by the alleged victim] within the period alleged." According to the use note, the first version should be given where "the jurors might disagree as to the particular act defendant committed." The second should be used "[w]hen there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant committed all of them."
Defendant contends this instruction as given by the court was inadequate to inform the jury of the requirement that it unanimously agree on the acts constituting the crimes alleged. Defendant argues that the court should have instructed the jury in accordance with either the "specific acts version" of CALJIC No. 4.71.5 or CALJIC No. 17.01, which reads:
"The defendant is accused of having committed the crime of ____ [in Count ____]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act][or] [omission] upon which a conviction [on Count ____] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he][she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count ____], all jurors must agree that [he][she] committed the same [act][or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the *678 particular [act][or] [omission] agreed upon be stated in your verdict."
While the "specific acts version" of CALJIC No. 4.71.5 may have been more appropriate as to the incest count, the jury was faced with either believing F. or defendant. The instruction given by the trial court adequately informed the jury of the requirement of unanimity. Indeed, it went even further. Even if it were possible the jurors might have disagreed about how many or which incidents occurred, the instruction given by the court indicated the jury must unanimously agree that defendant committed all of the acts described by F.[1] This is a much heavier burden than requiring unanimous agreement on any particular act. The jury is presumed to have complied with the instructions given to it. (People v. McLain (1988) 46 Cal.3d 97, 119-120, 249 Cal.Rptr. 630, 757 P.2d 569.)
Nevertheless, defendant contends that reversal is required under People v. Smith (2005) 132 Cal.App.4th 1537, 34 Cal. Rptr.3d 472a case in which this court reversed the defendant's sex offense conviction based on die trial court's failure to give a unanimity instruction and the risk that the defendant was convicted even though there was no agreement among the jurors as to which act constituting the crime the defendant committed. (Id. at p. 1540.) Smith is inapposite because the instruction here told the jury it must unanimously agree that defendant committed all the acts described by F., and unlike Smith, there is nothing in the record to suggest the jury did not follow this plain instruction. (Ibid.) We find no error.
III[***]
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P.J., and HULL, J.
NOTES
[*] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I and III of the Discussion.
[**] See footnote *, ante.
[1] Since the jury unanimously agreed defendant had committed all of the acts described by the victim, it necessarily unanimously agreed defendant had committed each specific act.
[***] See footnote *, ante. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2756417/ | Affirmed and Memorandum Opinion filed December 2, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00963-CR
GARRICK IAN HASTINGS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 1403750
MEMORANDUM OPINION
A jury convicted appellant of aggravated assault with a deadly weapon. The jury
sentenced appellant to confinement for sixty years in the Institutional Division of the
Texas Department of Criminal Justice and assessed a fine of $10,000. Appellant filed a
notice of appeal.
Appellant’s appointed counsel filed a brief in which he concludes the appeal is
wholly frivolous and without merit. The brief meets the requirement of Anders v.
California, 386 U.S. 738, 87 S. Ct. 1396 (1967), by advancing frivolous contentions
which arguably might support the appeal. See Currie v. State, 516 S.W.2d 684 (Tex.
Crim. App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex. Crim. App. 1972); Gainous v.
State, 436 S.W.2d 137 (Tex. Crim. App. 1969).
A copy of counsel’s brief was delivered to appellant. Appellant was advised of
the right to examine the appellate record and file a pro se response. See Stafford v. State,
813 S.W.2d 503, 510 (Tex. Crim. App. 1991). The record was provided to appellant and
on November 4, 2014, appellant filed a pro se response to counsel’s brief.
We have carefully reviewed the record, counsel’s brief, and appellant’s response,
and agree with counsel that the appeal is wholly frivolous and without merit. Further, we
find no reversible error in the record. A discussion of the brief would add nothing to the
jurisprudence of the state. We are not to address the merits of each claim raised in an
Anders brief or a pro se response when we have determined there are no arguable
grounds for review. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App.
2005).
Accordingly, the judgment of the trial court is affirmed.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Christopher and Busby.
Do Not Publish — Tex. R. App. P. 47.2(b).
2 | 01-03-2023 | 12-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2361684/ | 658 F. Supp. 809 (1987)
In the Matter of the Arbitration Between CONTINENTAL U.K. LIMITED, Petitioner,
and
ANAGEL CONFIDENCE COMPANIA NAVIERA, S.A., Respondent.
No. 86 Civ. 3522 (CHT).
United States District Court, S.D. New York.
April 27, 1987.
Hill, Rivkins, Carey, Loesberg, O'Brien & Mulroy, New York City, for petitioner; George F. Chandler, III, of counsel.
Poles, Tublin, Patestides & Stratakis, New York City, for respondent; John J. Devine, Jr., of counsel.
*810 TENNEY, District Judge.
Continental U.K. Limited ("petitioner") has filed a motion with this Court to compel arbitration of its claim for seawater damage to a cargo of soy beans carried on the M/V COMMON VENTURE ("the ship") in a journey from Chicago to England. Petitioner is the cargo owner and holder of the bill of lading issued when the soybeans were loaded on the ship. Anagel Confidence Compania Naviera, S.A. ("respondent") owns the ship and originally time-chartered it to Fednav Ltd. ("Fednav"), who in turn, entered into a voyage charter party ("the subcharter") with Stellar Chartering and Brokerage, Inc. ("Stellar"). Both Stellar and petitioner are subsidiaries of the Continental Grain Co. ("Continental Grain"), the entity which sold the soybeans to petitioner, and Stellar entered into the subcharter for petitioner's account.
Petitioner moves for an order pursuant to 9 U.S.C. § 4 (1970)[1] directing respondent to arbitrate this dispute in New York City, and appointing an arbitrator on respondent's behalf.[2] Respondent opposes arbitration in New York City, but has agreed to arbitrate with petitioner in London. For the reasons discussed below, the Court denies petitioner's motion to compel arbitration in New York City.
BACKGROUND
The facts before the Court are principally undisputed. Respondent time-chartered the ship to Fednav in October, 1985. The time-charter was prepared on the New York Produce Exchange ("NYPE") form. Although the printed language of the form calls for arbitration in New York, a handwritten change provided for arbitration of disputes between Respondent and Fednav in London rather than New York. The time-charter further provided that the Captain of the ship was to sign, or if requested by Fednav, to authorize them or their agents to sign, bills of lading for cargo as presented. Respondent's Affidavit in Opposition, Exhibit A.
On December 3, 1985, Fednav, as disponent owner of the ship, entered into the subcharter with Stellar, which provided for the carriage of 17,500 metric tons of soybeans from Chicago, Illinois to Seaforth, England. Clause 27 incorporated the NYPE arbitration clause into the subcharter. That arbitration clause (sometimes hereinafter referred to as "the subcharter's arbitration clause") states:
Should any dispute arise between Owners and the Charterers, the matter in dispute shall be referred to Three (3) persons at New York, One to be appointed by each of the parties hereto, and the third by the two so chosen; their decision or that of any two of them, shall be final, and for the purpose of enforcing any award, this agreement may be made a rule of the Court. The Arbitrators shall be commercial men.
Petition to Compel Arbitration ("Petition"), Exhibit 1.
The subcharter did not disclose who Stellar had booked the vessel for, or whether Stellar was acting as an agent. However, a document dated December 3, 1985, confirmed that the ship had been booked for "CONTI LONDON," a designation for petitioner. Id., Exhibit 2.
On December 10, 1985, the master of the ship signed a document authorizing Fedmar International ("Fedmar"), agent for Fednav, to sign and release bills of lading on the master's behalf "in accordance with terms, conditions and exceptions of [the subcharter]." Id., Exhibit 3.
On December 13, 1985, after the soybeans had been loaded on board the ship, representatives of Fedmar and Continental Grain signed a statement of facts about the *811 shipment. The statement of facts declared that "all Terms, Conditions, Clauses and Exceptions of the [subcharter] dated December 3, 1985 at Greenwich including arbitration clause are incorporated herein." Petitioner's Reply Affidavit, Exhibit 9. At that time, a representative of Fedmar also signed and released bills of lading covering the cargo. He utilized a printed form which was imprinted with Continental Grain's name as shipper. Petitioner was listed as the "notify" party. Petition, Exhibit 4.
In several typewritten insertions to the various clauses of the bill of lading, the subcharter was incorporated by reference in the simple words "as per charter party." Also, the bill of lading contained a catch-all printed clause stating "[a]ll terms, conditions and exceptions as per charter party dated [blank] and any addenda thereto to be considered as incorporated herein as if fully written, anything to the contrary contained in this bill of lading notwithstanding." Inserted into the blank was a typewritten reference to the date and location[3] of the subcharter, with an express notation that the incorporation "includ[ed the] arbitration clause". Thus, the complete incorporation clause reads: "[a]ll terms, conditions and exceptions as per charter party dated December 3, 1985 at New York, N.Y. including arbitration clause incorporated herein and any addenda thereto to be considered as incorporated herein as if fully written, anything to the contrary contained in this bill of lading notwithstanding."[4] The signature block reads as follows: "FEDMAR INTERNATIONAL AS AGENTS, ... BY AUTHORITY OF THE MASTER, AS AGENTS ONLY."
The bills of lading were delivered to Continental Grain, which transmitted them to petitioner on December 17, 1985, together with a contract evidencing the sale of the soybeans. Petitioner's Reply Affidavit, Exhibit 8.
When the ship arrived in England, a portion of the soybeans had been damaged by seawater. An inspection of the vessel apparently revealed six hairline stress fractures in the tanks above the holds, and several uncovered bilge wells through which water could enter the cargo space. Petitioner rejected the soybeans, which were then sold to mitigate damages. Petition, Exhibit 5.
Petitioner thereafter transmitted a telex to respondent's agent in London, claiming a loss of $300,000 on the cargo, demanding arbitration in New York City pursuant to the arbitration clause purportedly incorporated in the bill of lading, and nominating its arbitrator. Id., Exhibit 6. Respondent refused the demand for arbitration in a telex dated April 30, 1986, asserting: "[w]e do not accept there is any agreement between the owners and your clients to arbitrate in New York." Id., Exhibit 7. The telex set forth respondent's opinion that the NYPE arbitration clause was neither incorporated into the bill of lading, nor broad enough to encompass the dispute between petitioner and respondent, since they were not the "owners [or] charterers."
Petitioner thereafter filed this motion, arguing that the NYPE arbitration clause (i) is unquestionably incorporated into the bill of lading; and (ii) governs the resolution of this dispute, regardless of its limited scope, because both parties consented to be bound by it.
According to petitioner, respondent demonstrated its consent to be bound by the NYPE arbitration clause when the master of the ship authorized Fedmar to sign bills of lading on his behalf, and petitioner demonstrated *812 its consent to be bound by purchasing the cargo and accepting the bill of lading. Petitioner's Reply Memorandum, at 2-3.
In opposition, respondent contends that the bill of lading did not clearly incorporate the NYPE arbitration clause. Accordingly, respondent asserts that the printed clause contained elsewhere in the bill of lading, requiring arbitration in London, should therefore govern. Respondent's Memorandum in Opposition, at 1, 5.
Alternatively, if the bill of lading is held to incorporate the NYPE arbitration clause, respondent argues that the clause was only intended to govern disputes between the original parties named in the subcharter as "owner and charterer" (Fednav and Stellar), id. at 10, and does not bind nonsignatories unless they have expressly assumed the duties of the owner or charterer. Respondent's Supplemental Memorandum, at 3-4.
DISCUSSION
Three requirements must be met before the Court may issue an order compelling arbitration pursuant to the Federal Arbitration Act. There must be (i) jurisdiction in admiralty; (ii) a written agreement to arbitrate; and (iii) an absence of triable issues concerning the making and performance of the arbitration agreement. 9 U.S.C. § 4 (1970).[5]
Jurisdiction in admiralty is unquestionably present, as the dispute involves a "maritime transaction" as defined in 9 U.S.C. § 1. See Fisser v. Int'l Bank, 175 F. Supp. 305, 307 (S.D.N.Y.1958).
Petitioner and respondent (sometimes hereinafter referred to as "the parties") do not dispute that a written agreement to arbitrate exists. Their disagreement is over which, if any, of the arbitration clauses contained in the time-charter, subcharter and bill of lading governs the resolution of this dispute.
Petitioner asserts that the parties are bound to resolve their dispute through the NYPE arbitration clause because of its incorporation in the bill of lading. Respondent disagrees and contends that it is bound by only one written arbitration clause that contained in the time-charter with Fednav. Whether the parties' actions in connection with the bill of lading constituted consent to arbitrate with one another, in view of the limited scope of the arbitration clause incorporated into the bill of lading, is not a fact question, but a question of law that can be resolved without resort to a trial. Sohtorik Shipping and Trading, Inc. v. Peter Cremer Befrachtungskontor, GMBH. & Co., 502 F. Supp. 143, 143-44 (S.D.N.Y.1980).
1. Does the Bill of Lading Clearly Incorporate the NYPE Arbitration Clause?
The Court does not find it difficult to reach a conclusion on the first issue presented by petitioner's motion. In more than one location, the bill of lading referenced the subcharter's terms in the words "as per charter party". In the catch-all incorporation clause, the subcharter was more specifically referenced by date and location.
Ideally, the incorporation clause should specify both the date of the charter party and the place where it was signed. Amstar Corp. v. S.S. Union Australia, 445 F. Supp. 940, 941 (S.D.N.Y.1978). "However, where there is `no confusion whatsoever concerning who in fact was the charterer *813 on this voyage, or which charter party governed the rights of the charterer vis-a-vis the shipowner,' an incorporation clause may effect incorporation even though it does not contain the names of the signatories or the date or place of the making of the charter party." State Trading Corp. of India v. Grunstad Shipping Corp., 582 F. Supp. 1523, 1524 (S.D.N.Y.), aff'd without opinion, 751 F.2d 371 (2d Cir.1984). See id., 1524 n. 2 (collecting cases).
In one case, the court upheld an incorporation clause which accurately stated only the date of the charter party being incorporated. Lowry & Co. v. S.S. Nadir, 223 F. Supp. 871, 874 (S.D.N.Y.1963). In another, the language "as per charter party" was held a sufficiently explicit reference by which to incorporate a particular charter party. Lowry & Co. v. S.S. Le Moyne D'Iberville, 253 F. Supp. 396, 398-99 (S.D. N.Y.1966), appeal dismissed, 372 F.2d 123 (2d Cir.1967).
Thus, it is irrelevant that the bill of lading incorrectly stated that the subcharter had been signed in New York. As between these parties, citation to the date alone was sufficient to clearly incorporate the subcharter's provisions.
The Court rejects respondent's argument that the use of the word "herein" in preference to the word "therein" introduced an ambiguity into the incorporation clause of the bill of lading. The Court believes that the typewritten words "incorporated herein", although awkward and redundant, were inserted to parallel the incorporation language of the printed form, and thus to emphasize the parties' intention to import the charter party terms into the bill of lading. The Court does not agree with respondent that this choice of usage is indicative of an intention to incorporate all of the subcharter's terms except its arbitration clause.
Moreover, the Court is free to simply disregard the typewritten words "incorporated herein." When these redundant words are deleted, any arguable ambiguity in the incorporation clause disappears. Such an approach is not without justification. As Judge Learned Hand once commented:
[c]ourts have again and again observed the curious, often fantastic incongruities in charter-parties, bills of lading and insurance policies, composed, as they so often are, of a motley patchwork of verbiage thrown together apparently at random, often in an unfamiliar diction three hundred years old. Particularly in a document meant to do service in varying situations each word of such a discordant medley need not be made to count as we seek to make all words count of carefully prepared contracts drawn for a particular occasion.
In re The Tregenna, 1941 A.M.C. 1282, 1290 (2d Cir.1941).
The Court concludes that the bill of lading clearly incorporated the NYPE arbitration clause.
2. Are Respondent and Petitioner Bound to Resolve their Dispute Pursuant to the NYPE Arbitration Clause?
The second issue raised by petitioner's motion is more difficult to resolve. It has long been established that "the [Federal Arbitration Act's] requirement of a `written agreement' for arbitration does not import a condition that only signatories to such provisions can be bound to their terms." Coastal States Trading, Inc. v. Zenith Navigation S.A., 446 F. Supp. 330, 336 (S.D.N.Y.1977), citing Fisser v. Int'l Bank, 282 F.2d 231, 233 (2d Cir.1960).
There are various methods for binding a charter party non-signatory to that document's arbitration clause. If a charter party's arbitration clause is expressly incorporated into a bill of lading, nonsignatories of the charter party who are linked to that bill through general principles of contract law or agency law may be bound. Son Shipping Co. v. De Fosse & Tanghe, 199 F.2d 687, 688 (2d Cir.1952). Additionally, it may be proven that the non-signatory is an alter ego of the corporation which signed the charter party, or that the signatory was acting in an agency capacity for the nonsignatory.
*814 Under the first method, proving that an arbitration clause is incorporated into a bill of lading to which a nonsignatory is connected is not the only prerequisite for binding that party to submit its disputes to arbitration. The language of the clause must be broad enough to allow nonsignatories' disputes to be brought within its terms. Sohtorik, 502 F.Supp. at 144. The courts recognize that parties are free to choose their contractual language, and an arbitration clause governing "all disputes arising out of this charter" is meant to have a much broader application than one governing disputes between "owners and the charterers." Production Steel Co. of Illinois v. S.S. Francois L.D., 294 F. Supp. 200, 201 (S.D.N.Y.1968). See Lowry (Le Moyne), 253 F.Supp. at 398; Taiwan Navigation Co. v. Seven Seas Merchants Corp., 172 F. Supp. 721, 722 (S.D.N.Y.1959). Thus, where the restrictive "owner/charterer" language is used in the arbitration clause, "it is indeed difficult to bind to that clause one who is not a signatory to the charter party." Lowry (Nadir), 223 F.Supp. at 873-74. See Import Export Steel Corp. v. Mississippi Valley Barge Line Co., 351 F.2d 503, 505-06 (2d Cir.1965); General Auth. for Supply Commodities v. S.S. Capetan Costis I, 631 F. Supp. 1488, 1489 (S.D.N.Y.1986); Production Steel, 294 F.Supp. at 201-02; Taiwan, 172 F.Supp. at 722.
Since neither respondent nor petitioner signed the subcharter, petitioner's motion attempts to bind not one, but two strangers to the charter party to the limited scope NYPE arbitration clause. Realizing the difficulty of accomplishing this, petitioner urges the Court to "resist the unreasonable approach" of strictly construing the terms owner and charterer. Petitioner's Supplemental Memorandum at 4. However, petitioner asks the Court to expand the arbitration clause beyond its plain meaning, contrary to the settled rule in this jurisdiction. Production Steel, 294 F.Supp. at 201-02.
Many of the cases relied upon by petitioner involved broad scope arbitration clause language, e.g., Henkel, K.G. v. M/T Stolt Hippo, 1980 A.M.C. 2618, 2619 (S.D. N.Y.1980); Bunge Corp. v. M/T Stolt Hippo, 1980 A.M.C. 2611, 2612 (S.D.N.Y.1979); Coastal, 446 F.Supp. at 335 n. 6; Midland Tar Distillers, Inc. v. M/T Lotos, 362 F. Supp. 1311, 1312 (S.D.N.Y.1973); Lowry (Le Moyne), 253 F.Supp. at 397. The Court has discovered only a few cases in addition to those cited by the parties where the narrow scope "owners and charterers" language was at issue. See Import Export, 351 F.2d at 505; General Auth., 631 F.Supp. at 1489; Sohtorik, 502 F.Supp. at 144; Production Steel, 294 F.Supp. at 200; Taiwan, 172 F.Supp. at 721-22; Chilean Nitrate Sales Corp. v. The Nortuna, 128 F. Supp. 938, 940 (S.D.N.Y.1955). Arbitration was ordered in only two of these cases Import Export and Chilean Nitrate. In both cases, the nonsignatory had expressly assumed the obligations of the owner or charterer or was otherwise bound by general agency law or contract law principles.
The principal case relied on by petitioner in support of its motion is Import Export. As petitioner notes, the facts in Import Export resemble those in the present dispute. The arbitration clause covered all disputes between "owners and charterers", and cargo interests (i.e., the subcharterer/holder of the bill of lading and notify party) were attempting to compel an entity which had assumed the disponent owner's obligations to arbitrate their claims for loss of the cargo.
However, as Import Export makes clear, if the scope of the clause is limited to disputes between owners and charterers, the Court may compel two parties to arbitrate only if each can be construed as either an owner or charterer. The scope language "should be carefully if not restrictively construed" and may not be "unduly stretch[ed]" to include nonsignatories. 351 F.2d at 506.
The party ordered to arbitrate in Import Export, Mississippi Valley Barge Line ("Mississippi"), had entered into a separate written agreement with the disponent owner expressly "assum[ing] all the obligations and privileges of [the disponent owner] under the subcharter." Id. at 505. No stretching was required for the court to *815 reach the conclusion that Mississippi had knowingly taken on that obligation.
Here, in contrast, the master's written authorization of Fedmar to sign and release bills of lading on his behalf in accordance with the subcharter does not imply that all the obligations and privileges of the disponent owner were being assumed by respondent. Although the authorization and the subsequently issued bill of lading certainly connected respondent to the subcharter, they do not serve as sufficiently unequivocal indicators that respondent deemed itself an "owner" for all purposes.
Furthermore, in Import Export, Mississippi was ordered to arbitrate with only one of the two cargo interests the subcharterer/bill of lading holder. The court held that the mere notify party/cargo owner was not bound by the narrow scope arbitration clause language. 351 F.2d at 505. See also Production Steel, 294 F.Supp. at 201 ("purpose of [incorporation] clause in the bill of lading was not to impose upon [consignee/cargo owner] the obligations and rights of the parties to the charter party ...").
In the present case, petitioner is the cargo owner, notify party and holder of the bill of lading, but not the "charterer". Stellar is the charterer. The Court rejects petitioner's contention that it demonstrated its consent to assume the status of charterer merely by purchasing the cargo and accepting the bill of lading. Thus, even if respondent were deemed to be the "owner" under the limited scope arbitration clause language, petitioner could not be compelled to arbitrate its disputes with respondent unless Stellar was its agent or alter ego.
Petitioner emphasizes that Stellar booked the ship on its behalf and that they are both subsidiaries of Continental Grain. From these facts, petitioner vaguely concludes that it has "succeeded" to the charterer's rights and obligations, and that its dispute with respondent therefore fits within the scope of the subcharter's arbitration clause. Petitioner's Supplemental Memorandum, at 1. The Court does not agree.
Although Stellar may have chartered the ship on behalf of petitioner, this fact is not disclosed in the subcharter. Nor does the subcharter state that Stellar was signing as an agent, either for petitioner or for any other principal. It has been held that the charter must contain unambiguous language indicating that (i) the party signing is doing so as the agent for another, or (ii) the nonsignatory expressly consents to be bound by narrow scope arbitration clause language. General Auth., 631 F.Supp. at 1490. See also Chilean Nitrate, 128 F.Supp. at 940, where the court ordered a subsidiary which had signed the charter party as agent for its parent to arbitrate its claim for cargo damage with the company which had expressly assumed the rights and liabilities of the disponent owner. The court held that the subsidiary was a "mere instrumentality" of its parent, and thus disregarded their separate corporate existence. Id. at 941.
A mere mention in the subcharter of an additional entity having some connection to it does not, without more, bind that entity to arbitrate its disputes. Taiwan, 172 F.Supp. at 722 (entity named in charter party as guarantor not compelled to arbitrate with vessel owner). Even if the subcharter had stated that the ship was being chartered by Stellar on petitioner's behalf, which it failed to do, this would not have served as sufficient indication that petitioner was assuming the rights and obligations of Stellar. General Auth., 631 F.Supp. at 1490. At the very least, the writing must suggest that petitioner has agreed to arbitrate as a principal. See Taiwan, 172 F.Supp. at 722.
Furthermore, the Court finds it immaterial that Stellar and petitioner are both subsidiaries of Continental Grain. Subsidiaries of the same parent are not necessarily bound to each others' contractual obligations. "[T]he principles utilized to determine whether in such cases, arbitration is appropriate are merely those which are employed in other contractual disputes to ascertain whether, on some theory, it is just to disregard independent corporate existence and hold one corporation responsible for the contractual obligations of another." Coastal, 446 F.Supp. at 336.
*816 To hold that petitioner is the charterer in these circumstances, the Court would have to find that Stellar is petitioner's alter ego. Petitioner states that Stellar, a co-subsidiary, booked a ship on its behalf, but does not allege that Stellar had "no separate mind, will, or existence of its own." Fisser, 282 F.2d at 238.[6] Superficial factors indicating that two corporate entities are related do not dispose of the alter ego question. Coastal, 446 F.Supp. at 334. It is more important to know whether the controlling corporation dominates the finances, policy, and business practices of the controlled corporation. The fact that Stellar booked ships for subsidiaries of Continental Grain does not suggest that it is a "puppet" of those subsidiaries. In fact it is more likely "that the degree of control necessary to invoke the alter ego doctrine would be exercised by a parent over its subsidiaries, rather than by one subsidiary over another." See Coastal, 446 F.Supp. at 337.
The Court concludes that petitioner cannot be included within the definition of the term "charterer." Therefore, the dispute between the parties is not encompassed within the scope of the NYPE arbitration clause.
CONCLUSION
In sum, petitioner cannot establish that either it or respondent is bound to resolve its disputes under the arbitration clause of the subcharter.[7] Accordingly, the petition must be denied.
So ordered.
NOTES
[1] "The [F]ederal Arbitration Act, 43 Stat. 883, 9 U.S.C. § 1 et seq., provides for specific enforcement of agreements to arbitrate in `maritime' transactions." Ministry of Commerce v. Marine Tankers Corp., 194 F. Supp. 161, 161 n. 1 (S.D.N. Y.1960). This dispute arises out of a charter party, and thus is included within the statutory definition of "maritime transactions." 9 U.S.C. § 1 (1970).
[2] Upon application of either party to a controversy covered by the Federal Arbitration Act, the Court is empowered to appoint an arbitrator pursuant to 9 U.S.C. § 5 (1970).
[3] The location was incorrectly stated as New York, N.Y., when in fact the subcharter was signed in Greeenwich, Connecticut. Regardless of this error in the bill of lading, the location of the subcharter was correctly stated as "Greenwich" in two other documents that incorporated its terms by reference the master's written authorization of Fedmar to sign bills of lading on his behalf, and the statement of facts about the shipment.
[4] Elsewhere, the bill of lading's printed language states that the Centrocon Arbitration Clause is to apply. That clause provides for arbitration of "all disputes from time to time arising out of this contract ... in London." Respondent's Memorandum in Opposition, at 3. Where printed and written terms conflict, "an interpretation is preferred which gives effect to the written provisions." Restatement of Contracts § 236(e) (1932).
[5] Title 9, U.S.C. § 4 states:
A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement ... The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.... If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof.
[6] Since the Court holds below that neither petitioner nor respondent is bound by the NYPE arbitration clause, it does not believe that a motion to amend the pleadings would be productive.
[7] In view of the Court's holding, it is unnecessary to consider respondent's further argument for dismissal on forum non conveniens grounds. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1333913/ | 251 S.C. 117 (1968)
160 S.E.2d 558
Alfred R. LANIER, Respondent,
v.
Dorothy L. LANIER, Appellant.
18780
Supreme Court of South Carolina.
April 11, 1968.
E. Windell McCrackin, Esq., of Myrtle Beach, for Appellant.
*118 J.M. Long, Esq., of Myrtle Beach, for Respondent.
April 11, 1968.
BRAILSFORD, Justice:
In this action for divorce the question for decision is whether the county judge erred by refusing to relieve the wife of her default and to permit her to file an answer.
The action was commenced by service of the summons and complaint on the wife on January 6, 1967. Shortly after the expiration of the time for answering the complaint, she filed a verified petition stating that the reason for her failure to answer the complaint was that the parties resumed cohabitation as husband and wife on January 22, 1967, and continued to live together until January 28, 1967, when the husband left the marital abode. At the same time, the wife served a proposed answer in which she pled the resumption of cohabitation, with full knowledge by the husband of the charges against her, as condonation of the said offenses and as a defense to the action for divorce.
After a delay in the hearing of the wife's petition, apparently because of the illness of the judge, the husband secured an order granting him exclusive temporary custody of the children of the parties.
On July 10, 1967, the husband filed a verified petition in which he sought the dismissal of the wife's petition for leave *119 to answer and an adjudication that she was in default. In this petition the husband stated that "the matters and things alleged in the proposed answer by the defendant were false and fictitious, and that no part of same is true." However, this petition further alleged that in an attempt to accomplish a reconciliation the husband resumed living with his wife on May 25, 1967, and the parties continued to live together until June 8, 1967, when the wife absconded taking with her the children and all available money.
By the order appealed from, the court denied the wife's petition for leave to answer, declared her to be in default and declared the husband to be entitled to an order of reference "without further notice to the (wife)." Recognizing that the law does not favor defaults in divorce actions, the court stated that ordinarily the wife's motion for leave to answer should be granted. However, the court found that she was not "due any further consideration" in this case because of her conduct in taking the children and depriving the husband of his right to their custody in "direct violation" of the previous order of the court.
Even assuming that the order granting exclusive custody to the husband survived the resumption of cohabitation by the parties on May 25, 1967, as to which we express no opinion, we are convinced that the court erred in refusing to permit the wife to file an answer. Her petition, which was filed soon after the commencement of the action, clearly established a prima facie case of excusable neglect and a meritorious defense. No more was required to entitle her to relief under the statute. "The Court does not attempt, on motions of this kind, to decide the case on its merits, but only decides whether a prima facie showing has been made of a meritorious defense." Jenkins v. Jones, 208 S.C. 421, 38 S.E. (2d) 255.
Society has an interest in the preservation of marriages, and defaults in divorce actions are more readily opened than in other cases. Holliday v. Holliday, 235 S.C. 246, 253, 111 S.E. (2d) 205, 209. A duty rests *120 upon the court to prevent the disruption of the marital relationship "except under circumstances and for causes fully sanctioned by law." Grant v. Grant, 233 S.C. 433, 437, 105 S.E. (2d) 523, 525.
Condonation is an affirmative defense which should be pleaded. However, the duty of the court to preserve marriage transcends the procedural rights of the parties, and a divorce will be denied where the evidence establishes condonation, even though this defense was not pleaded. McLaughlin v. McLaughlin, 244 S.C. 265, 272, 136 S.E. (2d) 537, 540. Here the allegations of both the husband and wife signal the existence of substantial issues as to condonation, which the court, in the interest of society, must be astute in resolving. To deny the wife the privilege of supporting this defense, if she can, is inimical to the intelligent discharge of this duty. We think that the court's judgment was affected by error of law in failing to give controlling weight to the principles above adverted to.
Reversed and remanded.
MOSS, C.J., and LEWIS, BUSSEY, and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334395/ | 274 S.C. 28 (1979)
260 S.E.2d 712
AMERICAN LEASE PLANS, INC., Respondent,
v.
R.C. JACOBS PLUMBING, HEATING & AIR CONDITIONING, INC., Appellant.
21089
Supreme Court of South Carolina.
November 26, 1979.
*29 Kenneth W. Thornton, Jr., Georgetown, for appellant.
R. Howard Grubbs, of McKay, Sherrill, Walker & Townsend, Columbia, for respondent.
*30 November 26, 1979.
GREGORY, Justice:
This is a claim and delivery action. Appellant R.C. Jacobs Plumbing, Heating & Air Conditioning, Inc., appeals from an order of the lower court awarding possession of a 1977 Dodge pickup truck to respondent American Lease Plans, Inc. We reverse.
Appellant purchased the used truck from Imperial Motors, Inc. (Imperial), a Chrysler motor products dealer in Myrtle Beach, South Carolina. Imperial had possession of the truck by virtue of a lease agreement with respondent, a North Carolina corporation primarily engaged in the business of leasing automobiles, aircraft and equipment.
At the time of purchase, title to the truck was held by respondent. Some time after the sale, Imperial went out of business and appellant never received the title certificate to the vehicle. It is not disputed that appellant paid full value for the truck.
The primary question on this appeal is whether appellant qualifies as a buyer in the ordinary course of business and is thereby entitled to the protective cloak of Section 36-2-403, subsections (2) and (3), Code of Laws of South Carolina (1976).
That section affords an innocent purchaser protection against the claim of an original owner who entrusts goods to a merchant who in turn transfers the goods by sale to the innocent purchaser. The operative subsections of Section 36-2-403 provide:
(2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.
(3) "Entrusting" includes any delivery and any acquiescence in retention of possession regardless of any condition expressed between the parties to the delivery or acquiescence *31 and regardless of whether the procurement of the entrusting or the possessor's disposition of the goods have been such as to be larcenous under the criminal law.
Respondent contends that appellant is not a "buyer in the ordinary course of business" as that status is defined in Section 36-1-201 (9), Code of Laws of South Carolina (1976), and accordingly is not entitled to the santuary which Section 36-2-403 provides.
§ 36-1-201 (9) "Buyer in ordinary course of business" means a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind.
The lower court found that appellant's business experience and extensive dealings in buying and selling vehicles disqualified it as a buyer in the ordinary course. This was error. Such a ruling places a burden of inquiry upon appellant which is not required by either the statutory definition of "buyer in ordinary course of business" or Section 36-2-403. Nor do the circumstances warrant imposing such a duty.
Appellant purchased a Chrysler-manufactured product from a Chrysler Motors dealer from whom it had on a prior occasion purchased another used Dodge truck. The instant truck was displayed by Imperial on its lot adorned with sale indicia and in a fashion that would reasonably indicate that Imperial both dealt in goods of this kind and was fully empowered to sell the truck to a buyer in the ordinary course of Imperial's business.
The salesman offered the truck for purchase, and appellant instructed him to forward the title certificate to the bank with which appellant did business.
Under these circumstances, appellant's inquiry into the salability of the 1977 Dodge pickup was reasonable, as it could rightfully have presumed that Imperial *32 was the true owner by virtue of its possession of the truck. Russell Willis, Inc. v. Page, 213 S.C. 156, 48 S.E. (2d) 627 (1948).
The fact that appellant did not demand to see the certificate at the time of sale does not mean that appellant purchased with lack of good faith. Good faith is defined as honesty in fact in the conduct or transaction concerned. Section 36-1-201(19), Code of Laws of South Carolina (1976). Appellant's failure to investigate proved unwise, but it does not amount to dishonesty.
Respondent argues that Imperial was to use the truck exclusively as a "shop truck," rather than as an item for sale. Thus, respondent had no knowledge of the sale of the truck to appellant. We are not persuaded that any arrangement that may have existed between respondent and Imperial is significant. Pursuant to Section 36-2-403(3), Imperial had the power to transfer respondent's ownership rights to appellant "... regardless of any condition expressed between [respondent and Imperial] to the delivery or acquiescence...."
The lower court erroneously ruled that Section 56-19-360, Code of Laws of South Carolina (1976) is dispositive. That Section provides:
§ 56-19-360. Procedures for voluntary transfer; duties of transferor and transferee; effective time of transfer.
If an owner, manufacturer or dealer transfers his interest in a vehicle other than by the creation of a security interest, he shall, at the time of the delivery of the vehicle, execute an assignment and warranty of title to transferee in the space provided therefor on the certificate or as the Department prescribes and cause the certificate and assignment to be mailed or delivered to the transferee or to the Department.
Except as provided in § 56-19-370, the transferee shall, promptly after delivery to him of the vehicle, execute the application for a new certificate of title in the space provided *33 therefor on the certificate or as the Department prescribes and cause the certificate and application to be mailed or delivered to the Department.
Except as provided in § 56-19-370, and as between the parties, a transfer by an owner is not effective until the provisions of this section have been complied with.
We hold that § 56-19-360 is not dispositive in a situation such as this where an innocent purchaser stands to lose to another party, albeit an innocent one, at the hands of a fraudfeasor or wrongdoer whose conduct was made possible by the acts of the other party.
In the case of Clanton's Auto Auction Sales, Inc. v. Young, 239 S.C. 250, 122 S.E. (2d) 640 (1961), decided before § 36-2-403 was enacted and codified, the Court stated: "It was never contemplated that this statute [ § 56-19-360] which was obviously intended to prevent fraudulent transfer of cars should be applied so as to protect one whose conduct has enabled another to commit a fraud." 122 S.E. (2d) at 643.
That reasoning is even stronger when viewed in light of the protection afforded an innocent purchaser by § 36-2-403. Our reading of § 36-2-403 in conjunction with § 56-19-360 renders both statutes operative, Lewis v. Gaddy, 254 S.C. 66, 173 S.E. (2d) 376 (1970), and is in harmony with prior case law as well. Young, supra.
Accordingly, the order of the lower court is
Reversed.
LEWIS, C.J., and LITTLEJOHN, NESS and RHODES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334181/ | 443 S.E.2d 716 (1994)
336 N.C. 200
CHARLOTTE-MECKLENBURG HOSPITAL AUTHORITY, d/b/a Carolinas Medical Center; Charlotte Institute of Rehabilitation and University Hospital; Carolina Medicorp, Inc.; Forsyth Memorial Hospital, Inc.; Medical Park Hospital, Inc.; Duke Medical Center; High Point Regional Hospital, Inc.; Memorial Mission Hospital, Inc.; Moses H. Cone Memorial Hospital; and North Carolina Baptist Hospitals, Inc.
v.
NORTH CAROLINA INDUSTRIAL COMMISSION and James J. Booker, J. Harold Davis and J. Randolph Ward, in their official capacities as its Chairman and Members.
No. 60PA93.
Supreme Court of North Carolina.
May 6, 1994.
*718 Turner Enochs & Lloyd, P.A. by Wendell H. Ott and Laurie S. Truesdell, Greensboro, and Womble Carlyle Sandridge & Rice by Roddey M. Ligon, Jr., Anthony H. Brett, and Dale E. Nimmo, Winston-Salem, for plaintiffs-appellees.
Michael F. Easley, Atty. Gen. by Isham B. Hudson, Jr., Sr. Deputy Atty. Gen., for defendants-appellants.
WHICHARD, Justice.
The primary question is whether adoption of a per diem reimbursement rule and concomitant repeal of the Blue Cross and Blue Shield of North Carolina rule exceeded the North Carolina Industrial Commission's statutory authority to review and approve hospital charges for services rendered to patients entitled to care under the Workers' Compensation Act, N.C.G.S. Chapter 97 (1991) ("Act"). For reasons hereinafter stated, we hold that adoption of the per diem rule exceeded the Commission's statutory authority, but that repeal of the Blue Cross Blue Shield rule did not.
I.
The General Assembly enacted the Act in 1929 to both "provide swift and sure *719 compensation to injured workers without the necessity of protracted litigation," and to "insure[] a limited and determinate liability for employers." E.g., Rorie v. Holly Farms, 306 N.C. 706, 709, 295 S.E.2d 458, 460 (1982).
The philosophy which supports the Work[ers'] Compensation Act is "that the wear and tear of human beings in modern industry should be charged to the industry, just as the wear and tear of machinery has always been charged. And while such compensation is presumably charged to the industry, and consequently to the employer or owner of the industry, eventually it becomes a part of the fair money cost of the industrial product, to be paid for by the general public patronizing such products."
Vause v. Equipment Co., 233 N.C. 88, 92, 63 S.E.2d 173, 176 (1951) (quoting Cox v. Kansas City Refining Co., 108 Kan. 320, 195 P. 863 (1921)); see also Barber v. Minges, 223 N.C. 213, 216, 25 S.E.2d 837, 839 (1943) ("The primary purpose of legislation of this kind is to compel industry to take care of its own wreckage.").
The basic operating principle of the Act is that an employee is automatically entitled to certain benefits whenever he suffers either a personal injury by accident occurring in the course of the employment and arising out of it, or incurs an occupational disease. Those benefits include both wage-based disability and medical compensation. "Medical compensation" includes hospital services "as may reasonably be required to effect a cure or give relief and for such additional time as, in the judgment of the Commission, will lessen the period of disability." N.C.G.S. § 97-2(19) (1991). "Medical compensation shall be provided by the employer." N.C.G.S. § 97-25 (1991). Medical compensation may be ordered by the Commission if not provided by the employer. Id. The pecuniary liability of the employer therefor "shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured person." N.C.G.S. § 97-26 (1991). "[C]harges of hospitals for medical compensation ... shall be subject to the approval of the Commission." N.C.G.S. § 97-90(a) (1991). The General Assembly created the Industrial Commission, see N.C.G.S. § 97-77, to administer the provisions of the Act, Hanks v. Utilities Co., 210 N.C. 312, 319, 186 S.E. 252, 257 (1936), and authorized the Commission to "make rules, not inconsistent with [the Act], for carrying out the provisions [thereof]." N.C.G.S. § 97-80(a) (1991).
On 1 June 1992 the Industrial Commission announced that hospital charges for medical compensation rendered on or after 1 January 1993 would be approved, pursuant to N.C.G.S. § 97-90(a), under two alternative rules: a pre-existing fee schedule, which provided reimbursement according to a published schedule of uniform charges for inpatient services, and a per diem methodology. Charges in excess of these fees so scheduled or calculated would not be approved unless the hospital received prior approval thereof, or upon appeal to the full Commission.
In a memorandum dated 18 March 1992, the Commission described the per diem rule: the per diem "rate" would be set for each hospital by establishing the average daily hospital charge for five categories of in-patient services rendered to workers' compensation patients. Excluding any charges for treatment or services rendered to workers' compensation patients which are not paid or payable under the law, Category I aggregates all general, medical, and surgical charges, including rehabilitation, rendered to workers' compensation patients other than those covered by Categories II and III. Category II aggregates all intermediate or intensive care charges for medical intensive care unit or surgical intensive care unit services, including cardiac care, rendered to workers' compensation patients. Category III aggregates high cost specialty unit charges such as those for burn units, dialysis units, heart surgery or other specialty units. Category IV aggregates pain therapy care charges for pain therapy services, and Category V aggregates psychiatric care charges for psychiatric services rendered to workers' compensation patients. The first-year base per diem charge would be calculated for each category of cases by dividing the total workers' compensation in-patient charges for each *720 separate category by the total number of workers' compensation in-patient days in each category for the most recent and complete fiscal year preceding the effective date, 1 January 1993. The resultant quotient, after adjustment for inflation by a factor equal to the Hospital Market Basket Index's annualized medical cost indicator for the South Atlantic Region, would be the per diem rate chargeable for such category during the first year. In subsequent years, that base year per diem would be adjusted for inflation by the Hospital Market Basket Index's indicator for the most recent year, not by an individual hospital's experience.
Further, the Commission advised, the per diem reimbursement system would replace a reimbursement rule in effect since 1 January 1990 whereby the Commission, furnished with a list of normal charges for services for that hospital by Blue Cross and Blue Shield of North Carolina, Inc. ("BCBSNC"), would approve charges for services rendered a workers' compensation patient which were the same as those for a BCBSNC patient.
Plaintiffs, a group of not-for-profit hospitals, addressed the Commission by letter on 14 July 1992, requesting an administrative forum by which they could "contest the regularity of the procedures used to adopt [the above] changes and the legal authority of the Commission to adopt or enforce a Per Diem or a Hospital Fee Schedule reimbursement system." The Commission did not respond to this letter.
Proceeding under the Declaratory Judgment Act, N.C.G.S. §§ 1-253 to -267 (1983 & Supp.1992), plaintiff hospitals then instituted this action in the Superior Court, Wake County, alleging that the Commission's actions in terminating the BCBSNC option and adopting the per diem option (1) failed to comply with applicable rulemaking procedures; (2) were arbitrary and capricious; (3) exceeded the Commission's statutory authority and were inconsistent with the Act, which provides that an employer's liability for medical services "shall be limited to such charges as prevail in the same community for similar treatment of injured persons"; and (4) deprived plaintiff hospitals of property without due process of law. Plaintiff hospitals requested that the court, pursuant to the Declaratory Judgment Act, declare the actions of the Commission null and void and enjoin the Commission from establishing or enforcing a reimbursement methodology for approval of inpatient hospital service charges except for the purpose of limiting such charges to the statutory standard contained in N.C.G.S. § 97-26, so that plaintiffs would be paid for inpatient hospital services provided to workers' compensation patients on the basis of the same schedule of charges applicable to the general patient population.
The trial court heard the case without a jury. It concluded that it had personal and subject matter jurisdiction pursuant to the Declaratory Judgment Act. It found that the Commission's actions exceeded its statutory authority to review and approve charges for hospital services based on prevailing community standards under the Act, and accordingly enjoined the Commission from implementing or enforcing the proposed changes in reimbursement options. It specifically excepted "the ... continued use of those hospital inpatient reimbursement mechanisms in effect prior to defendants' adoption of [the per diem option]," including the extant fee schedule. In a subsequent order, the trial court clarified that it was enjoining both adoption of the per diem rule and repeal of the BCBSNC rule.
From this judgment, defendants appealed to the Court of Appeals and petitioned this Court for discretionary review prior to a determination by the Court of Appeals. On 11 March 1993, we allowed defendants' petition 427 S.E.2d 619. We now affirm the determination that defendants' adoption of the per diem rule exceeded their statutory authority, but we reverse the determination that defendants' repeal of the BCBSNC rule exceeded that authority.
II.
We first address three jurisdictional issues brought forward by defendants. They posit that the trial court lacked subject matter jurisdiction because (1) defendants are entitled to sovereign immunity, (2) plaintiffs failed to exhaust available administrative remedies, and (3) plaintiffs did not present *721 an actual controversy as required under the Declaratory Judgment Act. We reject these arguments and conclude that plaintiff hospitals were entitled to seek declaratory and injunctive relief under the Declaratory Judgment Act.
A.
The doctrine of sovereign immunitythat the state cannot be sued in its own courts without its consentis firmly established in North Carolina law. E.g., Ferrell v. Dept. of Transportation, 334 N.C. 650, 654, 435 S.E.2d 309, 312 (1993). It is also well established that a suit against a state commission or members thereof to prevent it or them from performing official duties is a suit against the state within the meaning of this doctrine. See, e.g., Lewis v. White, 287 N.C. 625, 643, 216 S.E.2d 134, 146 (1975), superseded on other grounds by statute as recognized in Corum v. University of North Carolina, 330 N.C. 761, 786, 413 S.E.2d 276, 292 (1992); Insurance Co. v. Gold, Commissioner of Insurance, 254 N.C. 168, 172-73, 118 S.E.2d 792, 795 (1961); Insurance Co. v. Unemployment Compensation Com., 217 N.C. 495, 500, 8 S.E.2d 619, 622 (1940).
On the other hand, the official status of the defendants, standing alone, does not immunize them from suit.... "When public officers whose duty it is to supervise and direct a State agency attempt to enforce an invalid ordinance or regulation, or invade or threaten to invade the personal or property rights of a citizen in disregard of law, they are not relieved from responsibility by the immunity of the State from suit, even though they act or assume to act under the authority and pursuant to the directions of the State."
Lewis v. White, 287 N.C. at 643, 216 S.E.2d at 146 (quoting Schloss v. Highway Commission, 230 N.C. 489, 492, 53 S.E.2d 517, 519 (1949)) (emphasis added) (citation omitted) (plaintiff taxpayers alleged that the members of a State commission, in excess of their statutory authority or contrary to law, proposed a diversion of state tax funds from the purpose for which such funds were appropriated; held, doctrine of sovereign immunity does not authorize dismissal of complaint). See also Shingleton v. State, 260 N.C. 451, 458-59, 133 S.E.2d 183, 188-89 (1963) (individual may sue state under Declaratory Judgment Act to determine extent of easement granted to the individual by the state); Teer v. Jordan, 232 N.C. 48, 51, 59 S.E.2d 359, 362 (1950) (citizen-taxpayer may maintain action against members of government agency to restrain unlawful use of public funds to his injury); Schloss v. Highway Commission, 230 N.C. 489, 492, 53 S.E.2d 517, 519 ("courts are open" to party injured by acts of public officers that invade party's personal or property rights, and "he may there obtain prompt and adequate relief").
There is no difference in principle between an attempt to enforce an invalid regulation and the initial adoption or enactment of such a regulation; both are in excess of the authority granted the agency under the statute and invade or threaten to invade personal or property rights of a citizen in disregard of the law. We therefore hold that the doctrine of sovereign immunity does not authorize the dismissal of plaintiff hospitals' complaint alleging that defendant Commission and its members, in excess of their statutory authority, adopted an invalid regulation.
B.
The next question is whether plaintiff hospitals' claim should be dismissed for failure to exhaust administrative remedies. Defendants contend that where there is an adequate and complete statutory remedy, plaintiffs are not entitled to seek nonstatutory remedies pursuant to the Declaratory Judgment Act. Defendants characterize N.C.G.S. §§ 97-83 to -86 as providing such a remedy.
In Worley v. Pipes, 229 N.C. 465, 50 S.E.2d 504 (1948), this Court held that the exclusive remedy of a physician to recover for services rendered to an injured employee in cases where the employer and employee are subject to the Act is by application to defendant Commission in accordance with sections 97-83 through -86 of the Act, with right of appeal to the courts for review. Id. at 471, 50 S.E.2d at 508. Defendants contend that Worley is equally applicable here, and plaintiff hospitals have not availed themselves *722 of that exclusive remedyi.e., that plaintiffs must choose the per diem reimbursement option; seek approval of charges for services rendered an injured worker in excess of the per diem; and, when denied, appeal to the full Commission for review of the disapproved charges. Only then, they argue, can plaintiffs appeal the Commission's decision to the Court of Appeals. Instead, plaintiffs requested a forum and, when ignored, immediately sought declaratory relief.
"[W]hen an effective administrative remedy exists, that remedy is exclusive." Lloyd v. Babb, 296 N.C. 416, 428, 251 S.E.2d 843, 852 (1979). "When statutory provision has been made for an action against the State, the procedure prescribed by statute must be followed, and the remedies thus afforded are exclusive.... Our Court has not permitted the Declaratory Judgment Act to supplant or substitute for the specific statutory proceeding for testing a ... statute." Insurance Co. v. Gold, Commissioner of Insurance, 254 N.C. at 173-74, 118 S.E.2d at 795-96; see also Porter v. Dept. of Insurance, 40 N.C.App. 376, 378-80, 253 S.E.2d 44, 46-47, cert. denied, 297 N.C. 455, 256 S.E.2d 808 (1979) (plaintiff collection agency was not entitled to seek a declaratory judgment in the superior court as to the validity and applicability of a regulation of the Department of Insurance prohibiting collection agencies from instituting judicial proceedings on behalf of other persons where plaintiff failed to exhaust available administrative remedies).
We agree with defendants that Worley is equally applicable to charges for hospital services rendered to employees in workers' compensation cases. Section 97-90(a) provides that both "[f]ees for ... physicians and charges of hospitals for medical compensation under this Article shall be subject to the approval of the Commission." N.C.G.S. § 97-90(a) (emphasis added). "[T]he General Assembly has prescribed an adequate remedy [in N.C.G.S. §§ 97-83 through -86] by which any matter in dispute and incident to any claim under the provisions of the Work[ers'] Compensation Act may be determined and settled." Worley v. Pipes, 229 N.C. at 471, 50 S.E.2d at 508 (emphasis added).
Plaintiff hospitals, however, do not seek review of an award of any specific claims for compensation before defendant Commission; rather, they seek a declaratory ruling that the per diem reimbursement rule is invalid, and injunctive relief therefrom. Sections 97-83 through -86 only provide for hearings, awards, and review of awards in disputes between employees and employers with respect to specific claims for compensation, and do not address challenges to rules and regulations promulgated by the Commission pursuant to the Act.[1]
*723 Nor has the General Assembly provided procedures to challenge an invalid rule or regulation in any other section of the Act.[2] Thus, the General Assembly has not provided, within the Act, an adequate remedy for plaintiffs. Nonetheless, plaintiff hospitals requested, by letter, an administrative hearing at which they could "contest the regularity of the procedures used to adopt and the legal authority of the Commission to adopt or enforce a Per Diem or a Hospital Fee Schedule reimbursement system." Defendants did not respond to the letter.
Under these circumstances we cannot hold that plaintiff hospitals were not entitled to seek relief under the Declaratory Judgment Act on the ground that they have not exhausted their administrative remedies. To the extent that Wake County Hospital v. Industrial Comm., 8 N.C.App. 259, 174 S.E.2d 292 (1970), determined that an action by a nonprofit hospital which challenged the validity of a schedule of hospital charges approved by the Industrial Commission in the treatment of workers' compensation cases presents a question arising under the Act which is determinable by the Commission, it is overruled.
C.
The third and final jurisdictional question is whether plaintiff hospitals have stated a controversy justiciable under the Declaratory Judgment Act. Section 1-264 of that act states: "This Article is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and it is to be liberally construed and administered." N.C.G.S. § 1-264 (1983). Section 1-254 provides:
Any person ... whose rights, status or other legal relations are affected by a statute... may have determined any question of construction or validity arising under the ... statute ..., and obtain a declaration of rights, status or other legal relations thereunder.
N.C.G.S. § 1-254 (1983).
Courts have stated on numerous occasions that declaratory judgment proceedings are particularly useful in determining the rights of individuals vis-a-vis administrative agencies; *724 a judicial determination as to the power of public regulatory agencies and the validity of their rules and regulations enables the private individual to avoid uncertainty as to his rights and duties. 22A Am.Jur.2d Declaratory Judgments § 89 (1988). See, e.g., Avery Freight Lines v. White, 245 Ala. 618, 624, 18 So.2d 394, 400 (1944) ("A well-known field of jurisdiction under the Declaratory Judgment Law is the adjudication of legal rights in controversy between the citizen and public officials, including members of administrative agencies, in advance of threatened and erroneous action to the injury of the party plaintiff.").
Declaratory judgments will be denied, however, where no actual controversy exists.
An actual controversy between the parties is a jurisdictional prerequisite for a proceeding under the Declaratory Judgment Act in order to "preserve inviolate the ancient and sound juridic concept that the inherent function of judicial tribunals is to adjudicate genuine controversies between antagonistic litigants with respect to their rights, status, or other legal relations."
Adams v. Dept. of N.E.R. and Everett v. Dept. of N.E.R., 295 N.C. 683, 703, 249 S.E.2d 402, 414 (1978) (quoting Lide v. Mears, 231 N.C. 111, 118, 56 S.E.2d 404, 409 (1949)). "It is not necessary for one party to have an actual right of action against another for an actual controversy to exist which would support declaratory relief. However, it is necessary that the Courts be convinced that the litigation appears to be unavoidable." Consumers Power v. Power Co., 285 N.C. 434, 450, 206 S.E.2d 178, 189 (1974).
We do not require that the challenged regulation have taken effect, only that it have been enacted or adopted by the administrative agency. Cf. City of Raleigh v. R.R. Co., 275 N.C. 454, 463, 168 S.E.2d 389, 395 (1969) ("Indeed, it is unnecessary for the assailed statute to have taken effect in order to entitle one whose rights it affects to contest the same by declaratory action. However, it is well settled that the court will not entertain a declaratory action with respect to the effect and validity of a statute in advance of its enactment." (quoting 2 Walter Anderson, Actions for Declaratory Judgments § 621, at 1415 (2d ed. 1951))). Further, we require that plaintiffs be directly and adversely affected by the regulation. Cf. City of Greensboro v. Wall, 247 N.C. 516, 519-20, 101 S.E.2d 413, 416 (1958) ("[T]he validity of a statute, when directly and necessarily involved, may be determined in a properly constituted action under [the Declaratory Judgment Act]; but this may be done only when some specific provision(s) thereof is challenged by a person who is directly and adversely affected thereby." (citations omitted)).
Plaintiff hospitals provide inpatient care to employees who are subject to the Act. On 2 June 1992, defendant Commission adopted minutes announcing that hospital charges for services rendered after 1 January 1993 would be approved if less than or equal to the rates calculated under the per diem rule. Plaintiffs petitioned the Commission for a hearing on the new rule; the Commission did not respond to the letter. Plaintiffs alleged that they would receive, under the new per diem rule, less than the amounts they charge the general patient population; in other words, plaintiffs alleged that they would sustain losses under the per diem reimbursement option. Plaintiffs predict that, if denied the declaratory and injunctive relief sought, they will appeal the disallowed charges on a case-by-case basis for review by the Commission and then to the courts.
Defendants argue it is possible that litigation may not arise. They point out that they have not yet refused to allow, and might ultimately approve, charges above the per diem rate. Defendants refer to defendant Commission's rules which allow it to approve any given hospital charges in excess of the approved per diem rate when the hospital demonstrates "special hardship" therefrom. Defendants also assert that they plan to approve the per diem rate even if the actual charges are less than those set per diem, and notwithstanding the statutory proscription against employers paying more than the prevailing charges; therefore, they argue, the hospitals will be fully reimbursed on average. Defendants predict that neither employers nor their insurance carriers will complain about paying in excess of the actual charges *725 because they realize that the per diem rule will reduce costs.
These "contingencies and possibilities, however, do not make the case nonjusticiable. We do not require the plaintiff to show with absolute certainty that litigation will arise; the plaintiff must merely demonstrate to a `practical certainty' that litigation will ensue." Ferrell, 334 N.C. at 656, 435 S.E.2d at 314. Plaintiffs are not required to sustain actual losses in order to make a test case; "[s]uch a requirement would thwart the remedial purpose of the Declaratory Judgment Act." Bland v. City of Wilmington, 278 N.C. 657, 659, 180 S.E.2d 813, 815 (1971). Plaintiff hospitals have sufficiently demonstrated a "practical certainty" that litigation will ensue. We thus hold that they have presented an actual controversy justiciable under the Declaratory Judgment Act.
III.
The substantive question presented is whether the trial court erred in determining that the Commission's adopting of the per diem reimbursement rule and concomitant repealing of the BCBSNC schedule exceeded its authority under the Act to review and approve hospital charges for medical compensation provided to workers' compensation patients. To answer this question, we must first clarify the scope of the Commission's authority under the statute with regard to the measure of hospital charges thereunder. In re Community Association, 300 N.C. 267, 280, 266 S.E.2d 645, 654 (1980) ("[T]he responsibility for determining the limits of statutory grants of authority to an administrative agency is a judicial function for the courts to perform."). That is primarily a question of statutory construction. See Comr. of Insurance v. Rate Bureau, 300 N.C. 381, 399, 269 S.E.2d 547, 561, reh'g denied, 301 N.C. 107, 273 S.E.2d 300 (1980) ("An issue as to the existence of power or authority in a particular administrative agency is one primarily of statutory construction.").
A.
The following statutory provisions are pertinent:
§ 97-2. Definitions.
(19) Medical CompensationThe term "medical compensation" means medical, surgical, hospital, nursing, and rehabilitative services, and medicines, sick travel, and other treatment, including medical and surgical supplies, as may reasonably be required to effect a cure or give relief and for such additional time as, in the judgment of the Commission, will tend to lessen the period of disability; and any original artificial members as may reasonably be necessary at the end of the healing period.
§ 97-25. Medical treatment and supplies.
Medical compensation shall be provided by the employer. In case of a controversy arising between the employer and employee relative to the continuance of medical, surgical, hospital, or other treatment, the Industrial Commission may order such further treatments as may in the discretion of the Commission be necessary.
The Commission may at any time upon the request of an employee order a change of treatment and designate other treatment suggested by the injured employee subject to the approval of the Commission, and in such a case the expense thereof shall be borne by the employer upon the same terms and conditions as hereinbefore provided in this section for medical and surgical treatment and attendance.
The refusal of the employee to accept any medical, hospital, surgical or other treatment or rehabilitative procedure when ordered by the Industrial Commission shall bar said employee from further compensation until such refusal ceases, and no compensation shall at any time be paid for the period of suspension unless in the opinion of the Industrial Commission the circumstances justified the refusal, in which case, the Industrial Commission may order a change in the medical or hospital service.
If in an emergency on account of the employer's failure to provide the medical or other care as herein specified a physician other than provided by the employer is called to treat the injured employee, the reasonable cost of such service shall be *726 paid by the employer if so ordered by the Industrial Commission.
Provided, however, if he so desires, an injured employee may select a physician of his own choosing to attend, prescribe and assume the care and charge of his case, subject to the approval of the Industrial Commission.
§ 97-26. Liability for medical treatment measured by average cost in community; malpractice of physician.
The pecuniary liability of the employer for medical, surgical, hospital service, nursing services, medicines, sick travel or other treatment required when ordered by the Commission, shall be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured person.
§ 97-80. Rules and regulations....
(a) The Commission may make rules, not inconsistent with this Article, for carrying out the provisions of this Article. Processes and procedure under this Article shall be as summary and simple as reasonably may be.
§ 97-90. Legal and medical fees to be approved by Commission; misdemeanor to receive fees unapproved by Commission....
(a) Fees for attorneys and physicians and charges for hospitals for medical compensation under this Article shall be subject to the approval of the Commission; but no physician or hospital or other medical facilities shall be entitled to collect fees from an employer or insurance carrier until he has made the reports required by the Industrial Commission in connection with the case. Unless otherwise provided by the rules, schedules, or orders of the Commission, a request for a specific prior approval to charge shall be submitted to the Commission for each such fee or charge.
(b) Any person (i) who receives any fee, other consideration, or any gratuity on account of services so rendered, unless such consideration or gratuity is approved by the Commission or such court, or (ii) who makes it a business to solicit employment for a lawyer or for himself in respect of any claim or award for compensation, shall be guilty of a misdemeanor, and upon conviction thereof shall, for each offense, be punished by a fine of not more than five hundred dollars ($500.00) or by imprisonment not to exceed one year, or by both such fine and imprisonment.
....
(e) The fees provided for in subsection (a) of this section shall be approved by the Commission no later than June 1 of the year in which the Commission exercises its authority under subsection (a) of this section, but shall not become effective until July 1 following such approval.
Defendants apparently perceive in these provisions and numerous others (see infra) unrelated to hospital charges but incorporating the term "reasonable," a broad grant of authority to set maximum hospital charges in order to keep charges "reasonable" and contain rising costs of medical compensation. They contend that section 97-26 is either "vague and outdated" because insurance carriers, not injured persons, now pay hospital bills, and hospitals do not charge according to the patient's "standard of living"; that it applies only to hospital services ordered by the Commission, not to hospital services voluntarily provided by the employer; or that it denominates the maximum charge per hospital service which may be set by the Commission under its broad grant of authority. According to defendants, the Commission may set rates less than the prevailing community charge described in section 97-26.
While defendants' interpretation "may be helpful and [is] entitled to ... consideration," it is not controlling; "[i]t is the Court and not the agency that is the final interpreter of legislation." State ex rel. Utilities Commission v. Public Staff, 309 N.C. 195, 211-12, 306 S.E.2d 435, 444-45 (1983). We reject defendants' interpretation of these provisions, and conclude that section 97-26 contains the correct measure for employer liability for hospital charges; the authority to approve hospital charges under section 97-90(a) is provided to ensure that hospitals do not provide services not reasonably required to effect a cure or give relief or tend to *727 lessen the period of disability, and that hospital charges therefor do not exceed the prevailing community charge described therein.
In construing the laws creating and empowering administrative agencies, as in any area of law, the primary function of a court is to ensure that the purpose of the Legislature in enacting the law, sometimes referred to as legislative intent, is accomplished. The best indicia of that legislative purpose are "the language of the statute, the spirit of the act, and what the act seeks to accomplish." In addition, a court may consider "circumstances surrounding [the statute's] adoption which throw light upon the evil sought to be remedied."
We should be guided by the rules of construction that statutes in pari materia, and all parts thereof, should be construed together and compared with each other. Such statutes should be reconciled with each other when possible, and any irreconcilable ambiguity should be resolved so as to effectuate the true legislative intent.
Comr. of Insurance v. Rate Bureau, 300 N.C. at 399-400, 269 S.E.2d at 561 (citations omitted).
Applying the foregoing rules, we conclude that the legislature intended (1) that medical compensation, including, inter alia, hospital services provided by the employer, ordered by the Commission, provided pursuant to emergencies, or chosen by the employee, subject to the approval of the Commission, be limited by the terms and conditions contained in section 97-25; (2) that such medical compensation be reasonably required to effect a cure or give relief or tend to lessen the period of disability; and (3) that the employer not be charged more than his employee would have been had the employee paid for the services. It intended, further, that the Commission's authority under the statute be limited to review and approval of hospital charges to ensure, first, that the employer is charged only for those reasonably required services, and, second, that the employer is not charged more for such services than the prevailing charge for the same or similar hospital service in the same community.
Defendants, focusing on the language of section 97-26 limiting charges to "such charges as prevail in the same community for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured person," contend that hospitals no longer charge according to standard of living, and further, that most people have health insurance; therefore, they posit, section 97-26 is "vague and outdated." We disagree; indeed, this language, read in historical context, is the key to understanding the "evils sought to be remedied."
Before the 1930s, most people did not have private health insurance; the only extensive private health plans offered direct services, usually to employees in an industry. Paul Starr, The Social Transformation of American Medicine 294 (1982) [hereinafter "Starr"]. Hospitals generally provided three classes of service: wards for the poor and working-class, semi-private rooms for the middle-class, and private rooms for the wealthy.[3] Starr at 159. In some communities, hospitals were segregated by race. Anne M. Dellinger, "A History of Hospitals in North Carolina," in Hospital Law in North Carolina 1-History, 7-History to 8-History (Anne M. Dellinger ed., 1985) [hereinafter "Dellinger"] (In Greensboro, L. Richardson Hospital, established in 1927, "remained the only facility open to blacks on a non-discriminatory basis until 1963, when Wesley Long and Cone Memorial hospitals were integrated by court order."). Physicians and hospitals could increase profits both by providing additional services and by charging according to the patient's ability to pay. See Starr at 291.
While "[t]he words of a statute must be taken in the sense in which they were understood ... when the statute was enacted," this rule does not preclude a statute *728 from applying to things and conditions not in existence at the time of enactment where the language is sufficiently broad to fairly include them. Hedrick v. Graham, 245 N.C. 249, 259, 96 S.E.2d 129, 136-37 (1957) (citation omitted). We find the language of the statute here sufficiently broad to include modern hospital practices; the legislature clearly intended to ensure that employers pay only for those services reasonably required to effect a cure or give relief or tend to lessen the period of disability, and that hospitals not charge employers more for the same services than they charge other patients not covered by workers' compensation. We note, for example, that the Commission now generally approves only ward and semi-private services. N.C. Industrial Commission, Evaluation of Permanent Physical Impairment: Rating Guide and Fee Schedule for Physicians and Hospitals for Services Rendered Under the North Carolina Workers' Compensation Act 292 (1990).
Defendants next focus on the language of the phrase modifying the enumerated treatments, "when ordered by the Commission," apparently arguing that section 97-26 applies only when medical treatment is ordered by the Commission and not when the employer provides hospital services or when, in emergencies, the employee secures hospital services of his own choosing. See N.C.G.S. § 97-25. We also reject this argument.
We previously have decided, at least implicitly, that the pecuniary liability of the employer for medical treatment voluntarily provided is to be measured by section 97-26. In Biddex v. Rex Mills, 237 N.C. 660, 75 S.E.2d 777 (1953), we held that even when medical compensation is voluntarily provided by the employer, the bills must be approved based on the standard set forth in section 97-26:
A commendably large number of our employers provide prompt medical examination, first aid, and hospital care for their employees in case of accident without regard to the nature of the injury, if any, that may result. Frequently, it is purely precautionary. When liability for the medical care of an employee who has suffered an accident is voluntarily incurred by the employer, the bills therefor must be approved by the Commission before the employer can demand reimbursement from its insurance carrier. In this manner such expenditures are kept within the schedule of fees and charges adopted by the Commission [pursuant to] G.S. 97-26.
Id. at 664, 75 S.E.2d at 780-81. We assume that the legislature was satisfied with this interpretation, in that it has since considered and amended both sections 97-25 and 97-26 without altering it. See Hewett v. Garrett, 274 N.C. 356, 361, 163 S.E.2d 372, 375 (1968) ("We may assume the law-making body is satisfied with the interpretation this Court has placed upon its Work[ers'] Compensation Act [when it has convened numerous times following that interpretation and failed to make any change in the statute].").
Defendants correctly point out that the legislature did not expressly limit the pecuniary liability for medical treatment rendered pursuant to an emergency, or to the proviso allowing an employee to choose his own physician. In Schofield v. Tea Co., 299 N.C. 582, 594-95, 264 S.E.2d 56, 64-65 (1980), we held that fairness requires that such medical treatment be subject to the same limitations, terms, and conditions as apply to medical treatment provided by the employer, as set forth in section 97-25, namely, that such medical treatment be reasonably required to effect a cure, give relief, or tend to lessen the period of disability.
Similarly, fairness requires that the employers' pecuniary liability for such medical treatment also be limited to such charges as prevail in the same community for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured person, as set forth in section 97-26. The provisions of sections 97-25 and 97-26 are in pari materia and must be construed together.
Defendants contend, apparently in the alternative, that the legislature impliedly granted them authority to set "reasonable" hospital rates at or below the prevailing community charge described in section 97-26, so as to contain rising costs of medical compensation. See In re Community Association, 300 N.C. at 280, 266 S.E.2d at 654 ("The *729 agency is a creature of the statute creating it and has only those powers expressly granted to it or those powers included by necessary implication from the legislative grant of authority."). We have stated that "the Legislature may ... delegate [ratemaking] authority to an administrative officer provided it prescribes sufficiently clear standards to control his discretion." Comr. of Insurance v. Rate Bureau, 300 N.C. at 399, 269 S.E.2d at 561. In support of their contention that the legislature gave them the authority to set "reasonable" hospital rates, defendants rely on numerous provisions unrelated to hospital charges incorporating the term "reasonable": N.C.G.S. §§ 97-25 (providing that employers pay reasonable costs for emergency medical services provided their employee); 97-73 (providing for a schedule of reasonable charges for examinations of employees exposed to the hazard of asbestosis or silicosis, which examinations are to be conducted by physicians chosen by the Commission); 97-74 (providing for awards of costs in hearings arising out of claims for disability or death benefits, which costs are to include "a reasonable allowance for the services of members of the advisory medical committee attending such hearings"); 97-88.1 (providing for awards of attorneys' fees in hearings brought or defended without reasonable grounds); 97-90(c) (providing for approval of attorneys' fees at the time the Commission renders a decision at the hearing); and 97-100(a) (requiring that rates charged by workers' compensation insurance carriers be "fair, reasonable and adequate"). We do not perceive in these provisions the "sufficiently clear standards" necessary to establish ratemaking authority in the Commission. Cf., e.g., Public Utilities Act, N.C.G.S. §§ 62-130 to -133 (1989) (providing detailed criteria for setting rates for public utilities). We thus conclude that the legislature did not intend to delegate such authority.
While defendants' concern about the rising costs of medical compensation is valid, hospital charges not paid by the employer (as self-insurer or by the insurance carrier) are spread to other patients, or, in the case of state or municipal hospitals, to the general taxpaying public. See Dellinger at 12-13. Such a result conflicts with the primary purpose of the Act, i.e., allocating the cost of work-related injuries first to the industry and ultimately to the consumer of the industry's products. See, e.g., Vause v. Equipment Co., 233 N.C. at 92, 63 S.E.2d at 176; Barber v. Minges, 223 N.C. at 216, 25 S.E.2d at 839. Indeed, such allocation of cost to the employer is fundamental to the American compensation system, "largely private in structure, being a matter between employers, insurance carriers, and employees," and distinguishes it from the "typical [European] `socialistic' schemes" in which "the government becomes the central figure." 1 Arthur Larson, The Law of Workmen's Compensation § 3.10, at 1-15 (1993).
Unlike pure social-insurance plans, the American compensation system does not place the cost on the "public" as such, but on a particular class of consumers, and thus retains a relation between the hazardousness of particular industries and the cost of the system to that industry and consumers of its product.
... [Thus,] [i]n the United States it is more precise to say that the consumer of a particular product ultimately pays the cost of compensation protection for the workers engaged in its manufacture.
Id. § 3.20, at 1-16.
For these reasons, we decline to adopt defendants' interpretation that the legislature intended to grant them the authority to set rates for hospital services. Rather, we conclude that the legislature intended (1) that medical compensation, including, inter alia, hospital services provided by the employer, ordered by the Commission, provided pursuant to emergencies, or chosen by the employee, subject to the approval of the Commission, be limited by the terms and conditions contained in section 97-25; (2) that such medical compensation be reasonably required to effect a cure or give relief or tend to lessen the period of disability; and (3) that the employer not be charged more than his employee would have been had the employee paid for the services. We therefore hold that the Commission's authority under the statute is limited to review and approval of hospital charges to ensure, first, that the employer is charged only for those *730 reasonably required services, and, second, that for such services the employer is not charged more than the prevailing hospital charge for the same or similar hospital service.
B.
Having determined that the Commission's authority to review and approve hospital charges is thus limited, we turn to the question of whether the per diem rule is consistent with the statute and results in a schedule of prevailing charges.
Defendants do not argue that the rule calculates a schedule of prevailing charges. Rather, they justify the rule as establishing "reasonable rates" to constrain rising medical costs. In the alternative, they contend that under the rule the hospitals will receive their prevailing charge "on average" over all workers' compensation patients or that such a rule is not inconsistent with the "prevailing charge" standard because the Commission can still determine, on a case-by-case basis, that charges assessed do not exceed prevailing charges.
Plaintiffs essentially respond that the rule is fatally compromised by statistical sampling and aggregation problems. We agree with plaintiffs.
Under the per diem rule, the Commission will disapprove prevailing charges for hospital services that are reasonably required under the statute, thereby relieving employers of their mandatory liability therefor. Thus the rule is inconsistent with the statute, and the Commission has exceeded its authority in promulgating such a rule. See N.C.G.S. § 97-80(a) (authorizing the Commission to "make rules, not inconsistent with this Article, for carrying out the provisions of this Article"). Cf., e.g., States' Rights Democratic Party v. Board of Elections, 229 N.C. 179, 186-87, 49 S.E.2d 379, 384 (1948) ("`Administrative rules and regulations, to be valid, must be within the authority conferred upon the administrative agency. The power to make regulations is not the power to legislate in the true sense, and under the guise of regulation legislation may not be enacted. The statute which is being administered may not be altered or added to by the exercise of a power to make regulations thereunder.'" (quoting 42 Am.Jur. Public Administrative Law § 99)).
The per diem "rate" would be set for each hospital by establishing the average daily hospital charge for five categories of in-patient services, discussed supra, rendered to workers' compensation patients. The first-year base per diem charge for any of the five categories is, basically, the average of the average daily patient charges over all categories of patients. Such an average daily patient charge would be calculated for each category by totaling the charges for the diverse and distinct services (line items on the hospital bill) provided a patient in that category unit,[4] then dividing that total by the number of days (or fractions thereof) spent in the hospital by the patient. The resulting quotient, the average daily patient charge, is then averaged over all patients in the category. After adjustment for inflation, this average would be the per diem amount chargeable for such category during the first year.[5]
*731 We believe the legislature contemplated that the Commission calculate some average charge because it used the phrase "such charges as prevail" within section 97-26. Also, the section is titled "Liability for medical treatment measured by average cost in community." N.C.G.S. § 97-26 (emphasis added); see Raleigh v. Bank, 223 N.C. 286, 290, 26 S.E.2d 573, 575 (1943) ("[W]hen the heading of a section is misleading or is not borne out by the explicit language of the statute itself, it may be disregarded, but where the meaning is not clear or there is ambiguity the heading which the Legislature has adopted in enacting the statute becomes important in determining the legislative intent."). "Prevail" is defined as "be frequent," "common or widespread," or "predominate." Webster's Third New International Dictionary 1797 (1976). Calculating an average charge reaches, in theory, the most common, or the most frequent, or the representative charge, because it mediates the variation over sample charges.[6] Thus, within a modern hospital serving a community, the average charge assessed patients for any of the numerous, diverse services provided a patientthe line items on a hospital billwould constitute "such charges as prevail in the same community for similar treatment of injured persons of a like standard of living when such treatment is paid for by the injured person." Indeed, within a modern hospital that charges according to a uniform rate schedule, i.e., that does not price discriminate by charging patients according to their ability to pay, the uniform charge for each such line item service would be the prevailing charge therefor.
Calculating an average camouflages variation across patients; in theory, that makes the average a prevailing charge. The per diem rates, however, are set by averaging charges over both similar and dissimilar hospital services. The variation camouflaged and confounded by the per diem rule thus arises from two sources: first, the variation in charges across the patients within the category for the same or similar hospital services, and, second, the variation in services provided patients as dissimilar, for example, as a burn and a heart surgery patient, both Category III patients. Indeed, in any hospital that charges according to a uniform charge schedule and does not price discriminate or charge patients according to their ability to pay, the variation arises solely from variation in the services provided.
The legislature has mandated employer liability for hospital services reasonably required to effect a cure or give relief or tend to lessen the period of disability. Under the per diem rule, however, the Commission will disapprove charges for such reasonably required services, not because the hospital charged the patient more than other patients in the same category for the same or similar services, but because the hospital provided the patient with services that differed from the services provided on average to other patients in the same category; the Commission will thus relieve the employer of its mandated liability for medical compensation.[7] Thus, the per diem rule is inconsistent with the statute. Cf. Evans v. Times Co., 246 N.C. 669, 670-71, 100 S.E.2d 75, 76-77 (1957) (defendant challenged the rule applied by the Industrial Commission for the measurement of disability compensation to be allowed; held, N.C.G.S. § 97-30 required that the employee receive sixty percent of the difference between wages earned before and after the injury, and therefore the rule providing for *732 less than sixty percent was inconsistent with the Act and invalid).
Defendants attempt to assure us that they would always approve the per diem rate; although some employers (or their insurance carriers) would pay more than the actual or prevailing charges for services rendered their employees, they would not challenge the per diem, defendants say, because they realize that employers' medical costs, viewed as a whole, would be contained. The hospitals would thus receive "on average" prevailing charges for all services rendered; therefore, the per diem rule is consistent with the statute.
We reject this argument. It is based on the premise that the Commission, in derogation of its statutory obligation, would review and approve hospital charges that exceeded the actual prevailing charges for services provided a patient. Our workers' compensation system is not a "one payor" system. Rather, each employer is liable for medical compensation that may be required under the statute for its employees, and chooses thereunder to either self-insure or cover its risk through an approved workers' compensation insurance carrier, N.C.G.S. § 97-93; rates for such insurance are generally tied to the prior experience of the employer. Nor is our system serviced by "one provider"; that any hospital would receive, on average, its actual prevailing charges, based on that hospital's historical charges, would be a mere fortuity.
We recognize that the per diem rule would simplify the process of approval of hospital charges and that the legislature has authorized the Commission to make rules establishing processes and procedures "as summary and simple as reasonably may be." N.C.G.S. § 97-80(a). There may be some level of aggregation over some of the numerous, diverse, and distinct services provided by modern hospitals that is consistent with the statute. Aggregation to a mere five categories, however, does not suffice. Cf. Social Security Act, 42 U.S.C. § 1395ww (1993) (Payments to hospitals for inpatient hospital services) and regulations promulgated pursuant thereto, 42 C.F.R. §§ 412.1-412.374 (1993) (The federal agency administering Medicare and Medicaid has established 460 diagnostically related groups, and thus 460 rates to effect the Congressional mandate therein to establish prospective hospital charges for each hospital participating in the program.).[8]
Defendants finally contend that the per diem rule is not inconsistent with the statute because plaintiff hospitals are free to contest, on a case-by-case basis, the "reasonableness" of any approved hospital charge. Under the per diem rule, the hospital may appeal the approved hospital charges, first to the Chief Medical Examiner, who institutes a review of the disputed fee using the established per diem schedule. If the hospital disputes that determination, it may request a hearing before a Deputy Commissioner, for which it may submit expert depositions. If dissatisfied with the Deputy Commissioner's order, it is entitled to review by the Full Commission upon timely application.
We again reject defendants' contention. The right to appeal the application of an invalid rule does not cure its fundamental invalidity.
We conclude, for the reasons stated, that the per diem rule is inconsistent with the Act and that defendants exceeded their authority in promulgating it.
C.
The final question is whether the trial court erred in determining that the Commission's repeal of the BCBSNC option exceeded its authority under the Act to review and approve hospital charges for medical compensation provided workers' compensation *733 patients. The legislature has authorized the Commission to "make rules, not inconsistent with this Article, for carrying out the provisions of this Article." N.C.G.S. § 97-80(a). Defendants conceded in oral argument that the BCBSNC rule is consistent with the statute; they sought to replace the BCBSNC rule with the per diem rule, they say, to contain rising medical costs. However, plaintiff hospitals did not challenge the extant fee schedule. We cannot conclude that the BCBSNC rule is the only rule that results in a schedule of charges consistent with the statute, and we therefore hold that the trial court erred in determining that the Commission exceeded its authority by repealing that rule.
IV.
In summary, we hold that plaintiff hospitals were entitled to seek declaratory and injunctive relief under the Declaratory Judgment Act. We hold, further, that the trial court did not err in adjudging that defendants exceeded their statutory authority in promulgating the per diem rule; under the rule, defendant Commission will disapprove prevailing charges for hospital services reasonably required under the Act, thus relieving the employers from mandatory liability therefor. The trial court did err, however, in adjudging that defendants exceeded their authority in repealing the BCBSNC rule; plaintiffs did not challenge the extant fee schedule, and we cannot conclude that the BCBSNC rule is the only rule consistent with the Act.
Accordingly, we affirm the determination that defendants' adoption of the per diem rule exceeded their statutory authority. We reverse the determination that defendants' repeal of the extant BCBSNC rule exceeded their statutory authority. We remand to the Superior Court, Wake County, for entry of a judgment consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
MEYER, J., concurs in the result.
NOTES
[1] These sections provide:
§ 97-83. In event of disagreement, Commission is to make award after hearing.
If the employer and the injured employee or his dependents fail to reach an agreement, in regard to compensation under this Article[,] within 14 days after the employee has knowledge of the injury or death, or if they have reached such an agreement which has been signed and filed with the Commission, and compensation has been paid or is due in accordance therewith, and the parties thereto then disagree as to the continuance of any weekly payment under such agreement, either party may make application to the Industrial Commission for a hearing in regard to the matters at issue, and for a ruling thereon.
§ 97-84. Determination of disputes by Commission or deputy.
The Commission or any of its members shall hear the parties at issue and their representatives and witnesses, and shall determine the dispute in a summary manner. The award, together with a statement of the findings of fact, rulings of law, and other matters pertinent to the questions at issue shall be filed with the record of the proceedings, within 180 days of the close of the hearing record unless time is extended for good cause by the Commission, and a copy of the award shall immediately be sent to the parties in dispute.
§ 97-85. Review of Award.
If application is made to the Commission within 15 days from the date when notice of the award shall have been given, the full Commission shall review the award, and, if good ground be shown therefor, reconsider the evidence, receive further evidence, rehear the parties or their representatives, and, if proper, amend the award....
§ 97-86. Award conclusive as to facts; appeal; certified questions of law.
The award of the Industrial Commission, as provided in G.S. 97-84, if not reviewed in due time, or an award of the Commission upon such review, as provided in G.S. 97-85, shall be conclusive and binding as to all questions of fact; but either party to the dispute may, within 30 days from the date of such award or within 30 days after receipt of notice to be sent by registered mail or certified mail of such award, but not thereafter, appeal from the decision of said Commission to the Court of Appeals for errors of law under the same terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions. The procedure for the appeal shall be as provided by the rules of appellate procedure.
See also Workers' Compensation Rules of the North Carolina Industrial Commission, Rule 407(1) (1993) ("Persons who disagree with the allowance of such fees in any case may make application for and obtain a full review of the matter before the Commission as in all other cases provided"; the published fees govern "except that in special hardship cases where sufficient reason therefor is demonstrated to the Commission, fees in excess of those so published may be allowed.").
[2] Compare the procedures provided in the North Carolina Administrative Procedure Act, Chapter 150B (1991), from which the Industrial Commission is exempted, N.C.G.S. § 150B-1(c)(4) (1991): an agency must submit a rule adopted by it to the Rules Review Commission before the rule can be included in the North Carolina Administrative Code. N.C.G.S. § 150B-21.8 (1991). The Commission must determine whether a rule (1) is within the authority delegated to the agency by the General Assembly, (2) is clear and unambiguous, and (3) is reasonably necessary to fulfill a duty delegated to the agency by the General Assembly. N.C.G.S. § 150B-21.9 (1991). A rule to which the Commission has objected remains under review by the Commission until the agency that adopted the rule decides not to satisfy the Commission's objections and requests in writing that the Commission return the rule to the agency, and if entered into the North Carolina Administrative Code ("NCAC"), the entry reflects the Commission's objection. N.C.G.S. § 150B-21.12(a)(2), (b) (1991). A person aggrieved by a permanent rule entered in the NCAC with an objection by the Commission based on a lack of statutory authority may file an action for declaratory judgment in Superior Court, Wake County, pursuant to the Declaratory Judgment Act; in the action the court determines whether the agency exceeded its authority in adopting the rule. N.C.G.S. § 150B-21.15(a) (1991). These procedures replaced those provided in N.C.G.S. § 150B-17 (1987) (repealed 1991), requiring that any party dissatisfied with an administrative rule or regulation petition the agency for a declaratory ruling with regard to the validity of the rule as a condition precedent to review by the courts.
[3] class distinctions could be more sharply delineated. While ward patients were attended by the hospital staff, private patients were attended by doctors of their choice. Ward and private patients usually received two different kinds of food, and ward patients were often not permitted to see friends and relatives as frequently as were private patients.
Starr at 159.
[4] These hospital services, medicines, supplies, and other treatment provided the patient, thus aggregated, are numerous and varied, including ambulance, emergency room, and admission services; room and board; diagnostic procedures; physical and/or occupational therapy; nursing services; laboratory services; and pharmacy services. See, e.g., N.C. Industrial Commission, Evaluation of Permanent Physical Impairment: Rating Guide and Fee Schedule for Physicians and Hospitals for Services Rendered Under the North Carolina Workers' Compensation Act 292-97 (1990). Indeed, the Commission enumerates more than sixty different services for room and board; eight different services, with no "fee" specified, for general intensive care services; five, with no fee specified, for general coronary care services; seven, with no fee specified, for nursing services including intensive care and coronary care nursing; ten, with no fee specified, for pharmacy, including drugs, non-prescription drugs, drugs incident to radiology, intravenous therapy, etc.; more than thirteen, with no fee specified, for medical supplies, including medical, surgical, non-sterile, medical prosthetic devices, pacemaker, and intraocular lens; and more than thirty-five codes, with no fee specified, for laboratory, pathology, radiology, and nuclear medicine services. Id.
[5] In subsequent years, that base year per diem would be adjusted for inflation by the Hospital Market Basket Index's indicator for the most recent year, not by an individual hospital's experience.
[6] There are three kinds of statistical averages: the mean, median, and mode. The per diem is an arithmetic mean, the sum of the average daily patient charges divided by the number of charges thus summed. A median would be the charge falling midway in the distribution of sample charges. The mode would be the most frequent charge. See generally David W. Barnes and John M. Conley, Statistical Evidence in Litigation 60-61 (1986).
[7] N.C.G.S. § 97-90(b) requires that "[a]ny person... who receives any fee ... on account of [medical services rendered under the Act], unless such consideration ... is approved by the Commission or ... court ... shall be guilty of a misdemeanor." If the hospital provides services that are not reasonably required to effect a cure or give relief or tend to lessen the period of disability, the employer would not be liable therefor; however, the employee would be liable, and the hospital would be able to seek payment from the employee.
[8] The Medicare and Medicaid programs are massive medical assistance programs involving millions of Americans and billions of dollars. The cost containment system thereof, enacted pursuant to 42 U.S.C. § 1395ww, establishes a method for paying hospitals for their operating costs of inpatient hospital services on the basis of rates that are prospectively determined and that vary for each patient according to the diagnostic-related group (DRG) in which the patient is classified; direct operating costs, including wages, capital related costs, and direct medical and nursing education costs for each participating hospital, are considered in determining the hospital-specific prospective rates for each DRG. The regulations promulgated by the Secretary are extensive and detailed. See generally Harvey L. McCormick, Medicare and Medicaid Claims and Procedures § 24, at 102 (1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263382/ | 31 Cal.App.4th 512 (1994)
37 Cal. Rptr.2d 97
MATTHEW GENSBURG et al., Plaintiffs and Appellants,
v.
FRED MILLER, as Deputy Director, etc., et al., Defendants and Respondents.
Docket No. A063468.
Court of Appeals of California, First District, Division Two.
December 12, 1994.
*515 COUNSEL
Rockhill, Schaiman & Carr and Michael E. Adams for Plaintiffs and Appellants.
Daniel E. Lungren, Attorney General, Robert L. Mukai, Chief Assistant Attorney General, Marvin Goldsmith, Assistant Attorney General, Tyler B. Pon and Bradley A. Solomon, Deputy Attorneys General, Sedgwick, Detert, Moran & Arnold and Douglas M. Moore, Jr., for Defendants and Respondents.
OPINION
SMITH, J.
In this federal civil rights action against employees of the state Department of Social Services (State DSS or Department), the County of San Mateo (County) and the County Department of Social Services (County DSS), arising out of the suspension of appellants' foster home license, the trial court sustained a demurrer without leave to amend on the ground that the defendants were absolutely immune from civil liability for their alleged misconduct.
We are in agreement with the trial court and affirm.
BACKGROUND
On appeal from a judgment of dismissal after sustaining a demurrer without leave to amend, we assume the truth of all well-pleaded material *516 facts, but not contentions, deductions or conclusions of law. It is error to sustain the demurrer if plaintiff has stated a cause of action under any legal theory, and it is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 [9 Cal. Rptr.2d 92, 831 P.2d 317].) Mindful of these settled rules, we summarize the allegations of the third amended complaint.
The Parties
Plaintiffs, Matthew and Pamela Gensburg (the Gensburgs) are husband and wife who operate a foster home out of their residence in the County. Plaintiff Nancy Curry is the natural mother of two children who, at certain times, resided as foster children in the Gensburgs' home.
Defendants Stuart R. Oppenheim, Pat Crawford and Marjorie Knoop (the County defendants) are all employees of County DSS. Oppenheim is deputy program director at County DSS; Crawford heads the licensing unit maintained by the State DSS for supervision of licensed foster parents; Knoop was the official in the licensing unit responsible for overseeing the Gensburgs' license.
First Cause of Action
Beginning in 1988, the County defendants began a vendetta designed to drive the Gensburgs out of their foster care business. The motivation for the vendetta was the County defendants' distaste for the Gensburgs' practice of accepting foster children from divergent racial and ethnic backgrounds and also retaliation for criticisms which Matthew Gensburg had publicly aired against them.
The vendetta started when the County defendants stopped placing foster children with the Gensburgs in 1989, after which the Gensburgs began receiving placements from the San Francisco Department of Social Services.
In 1990, Matthew Gensburg was involved in an altercation at a construction site, "wholly unconnected" to the Gensburgs' foster care business. The County defendants wrote a report regarding the altercation and forwarded it to State DSS, urging revocation of the Gensburgs' foster care license. The report included "defamatory statements" to the effect that the Gensburgs were bigoted and violent toward their foster children. As a result, the State DSS filed an accusation seeking to revoke the Gensburgs' license.
From June to September 1991, the County defendants violated established departmental policies by conducting a "malicious exploratory investigation" *517 into the Gensburgs' foster care activities. This included procuring and forwarding to State DSS negative statements which defendants knew to be "false, misleading and materially inaccurate."
As a result of the County defendants' actions, in September 1991 the Department amended the accusation to add 30 more charges and imposed a temporary license suspension on the Gensburgs which remained in effect until February 1992.
The case against the Gensburgs was the subject of an 11-day hearing before an administrative law judge, and resulted in a recommendation that all charges be dismissed. In January 1992, the State DSS revised the judge's decision to uphold several of the charges and to place the Gensburgs on probation. The State DSS's decision was ultimately reversed in a writ of mandate action in superior court, which ordered reinstatement of the Gensburgs' license.
As a proximate result of the defendants' conduct the Gensburgs incurred legal fees and loss of income from their foster care business and injury to their reputations. Curry and her children, as well as the Gensburgs' minor children, suffered psychological trauma and humiliation.
Second Cause of Action
The second cause of action is directed against Fred Miller, who is deputy director of the Community Care Licensing Division of State DSS, and Steven A. Shaffer, staff attorney in the Department's office of chief counsel.
After preparing the accusation against the Gensburgs in June 1991, Shaffer joined with the County defendants in their malicious, "improperly aggressive investigation." Specifically, in an "overzealous and unprofessional manner" he encouraged witnesses to make negative statements which he either knew or was substantially certain were false and misleading. Shaffer then presented these statements to Miller, who amended the accusation to add 30 false charges against the Gensburgs. Shaffer also encouraged third parties to file a harassment suit against the Gensburgs.
On September 17, 1991, the State DSS defendants caused to be issued an administrative order pursuant to Health and Safety Code section 1550, subdivision (e), suspending the foster care license of the Gensburgs until after the completion of formal administrative proceedings. The suspension resulted in the removal of five foster children from the Gensburgs' home.
The actions of the State DSS defendants violated the Gensburgs' constitutional rights, including their liberty and property interests in pursuing their *518 occupation as licensed foster parents. Said defendants acted maliciously in that objectively reasonable public officials would have known that their actions violated the Gensburgs' constitutional rights and were unsupported by probable cause.
Third Cause of Action
The third cause of action alleges a conspiracy between the County defendants and the State DSS defendants to violate the Gensburgs' civil rights under 42 United States Code section 1983.
APPEAL
I
State Immunity
Government Code section 821.6 (section 821.6) provides that "A public employee is not liable for injury caused by his [or her] instituting or prosecuting any judicial or administrative proceeding within the scope of his [or her] employment, even if he [or she] acts maliciously and without probable cause."
In Jenkins v. County of Orange (1989) 212 Cal. App.3d 278 [260 Cal. Rptr. 645] (Jenkins), the court found that this section confers absolute immunity on a social worker from all state-based causes of action arising out her actions in investigating child abuse allegations, initiating dependency proceedings and removing a child from his custodial parent. Likening the social worker's role to that of a prosecutor, the court held that the defendant's conduct fell within the ambit of the statute. (Id., at pp. 283-284.)
(1) There appears little doubt that the actions of the State DSS and County defendants here were protected by the immunity set forth in section 821.6. Although the conduct here concerned actions taken in the investigation and prosecution of license suspension and revocation proceedings against foster parents rather than dependency proceedings, both types of conduct fulfill the same compelling statutory purpose the preservation of the welfare and safety of dependent minor children. (See Health & Saf. Code, § 1521.6, subd. (a).)
Thus, any state or common law causes of action are barred by section 821.6.
*519 II
Immunity Under Section 1983
The complaint, however, is framed strictly as an action under section 1983 of the Civil Rights Act. (42 U.S.C. § 1983 [section 1983]).[1] (2) Because section 1983 was intended by Congress as a remedy to prevent unconstitutional acts by state and local officials, we must look to federal law to determine the scope of immunity of governmental officials from a section 1983 suit. (Alicia T. v. County of Los Angeles (1990) 222 Cal. App.3d 869, 878 [271 Cal. Rptr. 513]; accord, Elene H. v. County of Los Angeles (1990) 220 Cal. App.3d 1445, 1452 [269 Cal. Rptr. 783].)
In Imbler v. Pachtman (1976) 424 U.S. 409 [47 L.Ed.2d 128, 96 S.Ct. 984] (Imbler), the United States Supreme Court, following a tradition of common law precedent, held that prosecutors enjoy absolute immunity from section 1983 suits for their activities in initiating and presenting the state's case, as well as for conduct "intimately associated with the judicial phase of the criminal process...." (424 U.S. at pp. 427-430 [47 L.Ed.2d at pp. 141-143].)
Subsequently in Burns v. Reed (1991) 500 U.S. 478, 492-493 [114 L.Ed.2d 547, 564-565, 111 S.Ct. 1934] (Burns) the high court was confronted with a section 1983 suit alleging that a prosecutor had procured false testimony at a probable cause hearing to obtain a search warrant and had also given erroneous legal advice to the police. The high court held that the prosecutor was absolutely immune from liability for the former activity but enjoyed only qualified immunity[2] for the latter, since the giving of advice to the police was not closely connected to the judicial phase of the criminal process.
The contours of prosecutorial immunity were more finely delineated in Buckley v. Fitzsimmons (1993) ___ U.S. ___ [125 L.Ed.2d 209, 113 S.Ct. 2606] (Buckley). There, prosecutors, allegedly frustrated by their inability to obtain an indictment, manufactured false evidence inculpating the defendant and *520 held a press conference at which they slandered him. In a five-to-four decision the high court recalled the "functional approach" to government official immunity articulated in Burns "which looks to `the nature of the function performed, not the identity of the actor who performed it.'" (Id. at p. ___ [125 L.Ed.2d at p. 223], quoting Forrester v. White (1988) 484 U.S. 219, 229 [98 L.Ed.2d 555, 566-567, 108 S.Ct. 538].) While reiterating that prosecutorial immunity extends to acts preparatory to the commencement of a prosecution, even outside the courtroom (___ U.S. at p. ___ [125 L.Ed.2d at p. 226]), the court held that by working "hand in hand" with sheriff's detectives to fabricate inculpatory evidence, the prosecutors acted not as advocates but as investigators, functionally no different than that of the sheriff or police department. (Id., at p. ___ [125 L.Ed.2d at p. 227].) Thus, the conduct was entitled to only qualified immunity.
III
Prosecutorial Immunity Applied to Social Workers
Imbler-type immunity has been extended by most federal courts to social workers performing their statutorily authorized functions. In Meyers v. Contra Costa County Dept. of Soc. Serv. (9th Cir.1987) 812 F.2d 1154, certiorari denied 484 U.S. 829 [98 L.Ed.2d 59, 108 S.Ct. 98] (Meyers), the Ninth Circuit, following a line of earlier federal court decisions (e.g., Kurzawa v. Mueller (6th Cir.1984) 732 F.2d 1456, 1458; Mazor v. Shelton (N.D.Cal. 1986) 637 F. Supp. 330; Whelenhan v. County of Monroe (W.D.N.Y. 1983) 558 F. Supp. 1093), held that social workers were entitled to absolute immunity when performing "quasi-prosecutorial functions connected with the initiation and pursuit of child dependency proceedings." (812 F.2d at p. 1157.) Drawing a parallel between the social worker's role and that of a prosecutor, the court noted: "Although child services workers do not initiate criminal proceedings, their responsibility for bringing dependency proceedings, and their responsibility to exercise independent judgment in determining when to bring such proceedings, is not very different from the responsibility of a criminal prosecutor. The social worker must make a quick decision based on perhaps incomplete information as to whether to commence investigations and initiate proceedings against parents who may have abused their children. The social worker's independence, like that of a prosecutor, would be compromised were the social worker constantly in fear that a mistake could result in a time-consuming and financially devastating civil suit." (Id., at p. 1157.)
Meyers has been followed in California. In Jenkins, the court held that social workers were absolutely immune from liability for improperly investigating allegations of child abuse, misrepresenting facts to the juvenile court *521 and refusing to consider exculpatory evidence. (212 Cal. App.3d 278, 286.) In Alicia T. v. County of Los Angeles, supra, 222 Cal. App.3d 869, the court used Meyers's reasoning in dismissing a suit brought against social workers who "`without probable cause or reasonable suspicion'" removed a minor from the custody of her parents. (Id., at p. 875.) "It is necessary to protect social workers in their vital work from the harassment of civil suits and to prevent any dilution of the protection afforded minors by the dependency provisions of the Welfare and Institutions Code. Therefore, social workers must be absolutely immune from suits alleging the improper investigation of child abuse, removal of a minor from the parental home based upon suspicion of abuse and the instigation of dependency proceedings." (Id., at p. 881.)
With this background we turn to the allegations at bar.
IV
State Defendants
1. The License Suspension
(3) The conduct of both State DSS defendants in temporarily suspending the Gensburgs' license under Health and Safety Code section 1550[3] is entitled to absolute immunity. In implementing disciplinary action to protect the welfare of foster children under the Gensburgs' care, the State DSS defendants were acting in a prosecutorial role.
The Gensburgs argue that the State DSS defendants lost their protection as prosecutors because "they were not acting as advocates, but rather performing an administrative function ancillary to the license revocation proceedings."
The argument proves too much. To the extent Miller and Shaffer were exercising quasi-judicial functions in invoking the license suspension, their conduct was equally protected. State officials making a decision whether to invoke suspension remedies pursuant to statute are acting in a quasi-judicial capacity, and are entitled to judicial immunity from section 1983 claims. (Butz v. Economou (1978) 438 U.S. 478, 511-512 [57 L.Ed.2d 895, 918-920, 98 S.Ct. 2894].)
*522 Nor are we convinced by the Gensburgs' contention that in temporarily suspending their license the State DSS defendants deprived them of due process, since their acts were not subject to judicial scrutiny. The temporary suspension provisions of section 1550 have been upheld against constitutional attack. (Habrun v. Department of Social Services (1983) 145 Cal. App.3d 318, 321-322 [193 Cal. Rptr. 340].) Since the State DSS defendants acted pursuant to their lawful statutory authority, they may not be subject to civil liability. (Coverdell v. Dept. of Social & Health Services (9th Cir.1987) 834 F.2d 758, 762-764; cf. Chalkboard, Inc. v. Brandt (9th Cir.1989) 902 F.2d 1375, 1379 [social workers bypassing statutory procedure not entitled to absolute judicial or prosecutorial immunity].)
2. Miller
All of Miller's conduct falls within the purview of Imbler/Meyers prosecutorial immunity. Based on the information reported to him by Shaffer and the County DSS, Miller filed an accusation against the Gensburgs and instituted suspension proceedings. Such activities are those of a prosecutor in the traditional and classical sense. Although such disciplinary proceedings are held before an administrative agency rather than a court of law, clearly they are quasi-judicial in nature and operation. State officials performing the functions of prosecutors in administrative proceedings are entitled to absolute immunity within the meaning of Imbler. (Demery v. Kupperman (9th Cir.1984) 735 F.2d 1139, 1143, cert. den. (1985) 469 U.S. 1127 [83 L.Ed.2d 803, 105 S.Ct. 811].)
3. Shaffer
Although Shaffer's conduct presents a more difficult question, we reach the same conclusion. In committing the alleged tortious acts, Shaffer, as staff attorney in the office of chief counsel, was acting in an investigative role, gathering the factual information for Miller to prepare his case. Prosecutorial immunity is not limited to the initiation of formal proceedings. While the Supreme Court in Buckley held that administrative and investigative functions "that do not relate to an advocate's preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity," it also noted that "[w]e have not retreated ... from the principle that acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity." (___ U.S. at p. ___ [125 L.Ed.2d 209, 226], italics added.)
Contrary to the Gensburgs' argument, the label "investigative" is not determinative of the boundaries of the prosecutor's immunity. The prosecutor's role may include investigatory activities in preparation for the commencement of judicial or quasi-judicial proceedings. When it does, the *523 shield of prosecutorial immunity follows. "[A]bsolute prosecutorial immunity attaches to the actions of a prosecutor if those actions were performed as part of the prosecutor's preparation of his case even if they can be characterized as investigative or administrative." (Gobel v. Maricopa County (9th Cir.1989) 867 F.2d 1201, 1204, quoting Demery v. Kupperman, supra, 735 F.2d 1139, 1143, internal quotation marks omitted, italics added.)
"Preparing to initiate a prosecution may necessitate obtaining, reviewing and evaluating evidence; absolute immunity may attach when these functions are necessary so that a prosecutor may fulfill his function as an officer of the court." (Snell v. Tunnell (10th Cir.1990) 920 F.2d 673, 693, cert. den. (1991) 499 U.S. 976 [113 L.Ed.2d 719, 111 S.Ct. 1622].) Shaffer's conduct in interviewing witnesses and evaluating reports and complaints in preparation for filing an accusation, falls within the scope of the prosecutorial role. "[T]o grant a prosecutor absolute immunity for the decisions to initiate and pursue a prosecution while subjecting him to liability for action taken to secure the information necessary to make those decisions `would only foster uninformed decisionmaking and needless actions.'" (Marx v. Gumbinner (11th Cir.1988) 855 F.2d 783, 792 [prosecutors entitled to absolute immunity for interviewing witnesses and crime victim prior to grand jury proceedings].)[4]
Thus, the cases cited by the Gensburgs are distinguishable in that the nonprivileged conduct engaged in by the prosecutors consisted of acts not intimately connected to the initiation of judicial proceedings.
The demurrer was properly sustained as to Shaffer.
V
County Defendants
We next address the liability of the County defendants. In deciding the question of whether their acts are cloaked with Imbler/Meyers immunity, it is important to note the official responsibilities of each defendant as alleged in the complaint. Two of them are employed by County DSS's licensing unit, whose duty it is to supervise licensed foster parents and homes (Crawford and Knoop). The other is deputy program director of County DSS (Oppenheim).
*524 (4) The Gensburgs contend that the County defendants cannot partake of prosecutorial immunity because they had no power to institute or prosecute license revocation proceedings. That may be literally true. But the Imbler test focuses not on the defendants' status but on the function they are performing while engaged in the alleged misconduct. Here, the County defendants were operating in a role functionally equivalent to that of the prosecutors whom they served.
Foster homes are strictly regulated by the state. (Health & Saf. Code, § 1530.5 et seq.; tit. 22, Cal. Code Regs. (Regs.), § 87000 et seq.) The State DSS is empowered to suspend or revoke the license of any foster home on the grounds specified in Health and Safety Code section 1550. (Regs., § 87042.) Since the State cannot oversee all foster homes, the responsibility of supervising them falls on public or private foster family agencies (Regs. § 88000 et seq.; § 88005, subd. (a)(1).) A foster family agency is duty-bound to monitor the activities of its licensed foster homes. Complaints regarding child abuse or any other activities affecting certification of foster homes must be investigated and written reports prepared. (Id., §§ 88050, 88051.)
The complaint alleges that the County defendants' responsibility was to oversee the Gensburgs' foster care license, including the investigation of complaints and the forwarding of investigative reports to State DSS, "for the latter to determine, on the basis of such investigation reports, whether to initiate and conduct formal ... proceedings to revoke, suspend, or impose probations upon the involved foster care licensees...."
The same immunity which protects prosecutors and social workers investigating child abuse should apply to County defendants when performing their duties to monitor and report on the activities of foster licensees to state prosecutorial officials.
The present case is closely analogous to McMartin v. Children's Institute International (1989) 212 Cal. App.3d 1393 [261 Cal. Rptr. 437], certiorari denied (1990) 494 U.S. 1057 [108 L.Ed.2d 766, 110 S.Ct. 1526] (McMartin). There it was alleged that Children's Institute International (CII), an investigative service, was hired by a city and county to investigate allegations of child abuse at a preschool and report its findings. CII's report concluded that numerous acts of abuse had occurred and that plaintiffs were the probable perpetrators. Claiming they were wrongfully indicted as a result of CII's activities, plaintiffs sued under numerous theories including civil rights violations pursuant to section 1983. (212 Cal. App.3d at pp. 1398-1399.)
The Court of Appeal held that CII's activities were "quasi-prosecutorial functions within the scope of their authority and were required by state law" *525 and were therefore entitled to absolute immunity from civil rights claims. (McMartin, supra, 212 Cal. App.3d 1393, 1405.)
McMartin's reasoning applies with even greater force here. County defendants were not solicited by the Department to file reports concerning the Gensburgs they were in fact performing the very functions granted to them by laws of this state in reporting to the prosecutorial arm of State DSS on matters affecting the state's decision on commencing disciplinary action against the Gensburgs' foster home license. Were these actions not shielded by absolute immunity, we would be jeopardizing the foster children whom the statutes seek to protect. "Should we hold a state or social worker acting within the scope of his or her employment is not absolutely immune from suits arising from the voluntary intervention to protect a child, we would indirectly eliminate the protection afforded to children. The state's interest in preventing child abuse will be diminished due to fear of retaliatory suits." (Jenkins, supra, 212 Cal. App.3d 278, 287.)[5]
We conclude that County defendants were entitled to absolute immunity for their actions which caused State DSS to initiate proceedings against the Gensburgs' foster care license. (See Hennessey v. State of Wash., Dept. of Social (E.D.Wash. 1985) 627 F. Supp. 137 [social worker absolutely immune from civil rights liability for giving false information to prosecutor who initiated dependency proceedings].)
VI
County Liability and Conspiracy
(5) The demurrer was properly sustained as to the County as well. When section 1983 liability of a municipality is predicated on privileged conduct of its employee acting within the scope of his or her employment, the municipality is protected by the same immunity. (Jenkins, supra, 212 Cal. App.3d 278, 287-288.)
(6) The conspiracy cause of action fails for a similar reason. A conspiracy cannot be alleged as a tort separate and apart from the wrong it is organized to achieve. Since the underlying wrongs are subject to privilege, defendants cannot be held liable for conspiracy to commit them. (McMartin, supra, 212 Cal. App.3d 1393, 1406.)
*526 DISPOSITION
The judgment is affirmed.
Kline, P.J., and Phelan, J., concurred.
A petition for a rehearing was denied January 11, 1995, and appellants' petition for review by the Supreme Court was denied March 2, 1995.
NOTES
[1] This section provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
[2] Unlike absolute immunity, which shields the defendant no matter how egregious or intentional the conduct, qualified immunity shields only that conduct of a governmental official which he or she reasonably believed to be lawful in light of the clearly established law and facts of the case. (F.E. Trotter, Inc. v. Watkins (9th Cir.1989) 869 F.2d 1312, 1315.)
[3] Section 1550.5 of the Health and Safety Code authorizes the Director of the Department to temporarily suspend any license prior to a formal hearing when, in the opinion of the Director, "the action is necessary to protect residents or clients of the facility from physical or mental abuse, abandonment, or any other substantial threat to health or safety." At the time of the events in question this provision was part of section 1550, subdivision (e). (38B West's Ann. Health & Saf. Code (1990) § 1550 p. 489 & (1995 supp.) § 1550.5, pp. 194-195.)
[4] While it is true that "encouraging" neighbors of the Gensburgs to file a harassment suit against them would not fall within the scope of the immunity we describe, the demurrer was nevertheless properly sustained because such conduct, standing alone, does not amount to a constitutional deprivation sufficient to state a section 1983 cause of action.
[5] It is irrelevant that some of the conduct which is the focus of this suit concerned activities occurring outside the foster home and not necessarily connected to foster care. The statutory scheme allows the Department to take action against any licensee for conduct which is detrimental to the health, morals or safety of the children under his or her care, regardless of where it occurs. (Adamson v. Department of Social Services (1988) 207 Cal. App.3d 14, 22 [254 Cal. Rptr. 667].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334119/ | 64 S.E.2d 848 (1951)
233 N.C. 493
In re BLALOCK.
No. 92.
Supreme Court of North Carolina.
May 2, 1951.
*855 Narvel J. Crawford, Asheville, for petitioner appellee.
R. R. Williams, Robert Williams, Jr., Asheville, for appellants.
Drury B. Thompson, Raleigh, for State Board of Public Welfare as amicus curiae.
WINBORNE, Justice.
The sole assignment of error presented on this appeal is predicated upon exception to the judgment and the signing of it. Such assignment of error raises only the questions as to (1) whether the facts found by the judge of the Domestic Relations Court of Buncombe County, North Carolina, and reiterated by the judge of the Superior Court on appeal, support the judgment from which appeal is taken, and (2) whether error in matters of law appears upon the face of the record. Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E.2d 15, and cases cited. See also Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; State v. Black, 232 N.C. 154, 59 S.E.2d 621; Rice v. Wachovia Bank & Trust Co., 232 N.C. 222, 59 S.E.2d 803; Smith v. Mc-Dowell Furniture Co., 232 N.C. 412, 61 S.E.2d 96; Halifax Paper Co., v. Roanoke Rapids Sanitary Dist., 232 N.C. 421, 61 S.E.2d 378; Johnson v. Barham, 232 N.C. 508, 61 S.E.2d 374; Hoover v. Crotts, 232 N.C. 617, 61 S.E.2d 705; Weaver v. Morgan, 232 N.C. 642, 61 S.E.2d 916; Gibson v. Central Mfrs.' Mut. Ins. Co., 232 N.C. 712, 62 S.E.2d 320; Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133, and numerous other cases.
In the light of the record, and facts found by the court, the movants, Mr. and Mrs. Robert K. McGowen, raise two questions, stated in reverse order: (1) Does the Domestic Relations Court of Buncombe County, North Carolina, have jurisdiction over the persons of movants? (2) Does said court have jurisdiction over the child Deanna Blalock, the subject of the action, or proceeding? Both questions are answered in the affirmative.
As to the first question: Jurisdiction over the person of a defendant can be acquired only in two ways: (1) By service of process upon him, whereby he is brought into court against his will; and (2) by his voluntary appearance and submission. 3 Am.Jur. 784. G.S. § 1-103.
Concededly, in the case in hand, process issued to Mr. and Mrs. McGowen was not served on them. It remains, therefore, to inquire into the effect of their appearance.
An appearance may be either general or special. The distinction between the two is not so much in the manner in which, or the proceeding by which, the appearance is made as, in the purpose and the effect of an appearance. "The test * * * is the relief asked; the law looking to its substance, rather than to its form. If the appearance is in effect general, the fact that the party styles it a special appearance will not change its real character. * * * The question always is what a party has done, and not what he intended to do." Scott v. Mutual Reserve Fund Life Ass'n, 137 N.C. 515, 50 S.E. 221, 222; Woodard v. Tri-State Milling Co., 142 N.C. 100, 55 S.E. 70; Dailey Motor Co., v. Reaves, 184 N.C. 260, 114 S.E. 175; Shaffer v. Bank, 201 N.C. 415, 160 S.E. 481; Buncombe County v. Penland, 206 N.C. 299, 173 S.E. 609; see also 3 Am.Jur. 782; McIntosh N. C. P. & P., 323.
A special appearance by a defendant is for the purpose of testing the jurisdiction of the court over his person. Scott v. Mutual Reserve Fund, Life Ass'n, supra; Dailey Motor Co., v. Reaves, supra; Denton v. Vassiliades, 212 N.C. 513, 193 S.E. 737; Williams v. Cooper, 222 N.C. 589, 24 S.E.2d 484. See also 3 Am.Jur. 782, McIntosh N. C. P. & P., 323.
An appearance merely for the purpose of objecting to the lack of any service of process or to a defect in the process or in the service of it, is a special appearance. In such case the defendant does not submit his person to the jurisdiction of the court. 3 Am.Jur. 783.
*856 On the other hand, a general appearance is one whereby the defendant submits his person to the jurisdiction of the court by invoking the judgment of the court in any manner on any question other than that of the jurisdiction of the court over his person. 3 Am.Jur. 782, 6 C.J.S., Appearances, § 22, p. 66; McIntosh N. C. P. & P., 323. Scott v. Mutual Reserve Fund Life Ass'n, supra; Dailey Motor Co., v. Reaves, supra.
A general appearance waives any defects in the jurisdiction of the court for want of valid summons or of proper service thereof. Dailey Motor Co., v. Reaves, supra; Bank of Pinehurst v. Derby, 215 N.C. 669, 2 S.E.2d 875; Four County Agricultural Credit Corp. v. Satterfield, 218 N.C. 298, 10 S.E.2d 914; Williams v. Cooper, 222 N.C. 589, 24 S.E.2d 484; Wilson v. Thaggard, 225 N.C. 348, 34 S.E.2d 140.
Indeed, in Williams v. Cooper, supra, 222 N.C. 589, 24 S.E.2d 487, in opinion by Barnhill, J., it is said: "An objection that the court has no jurisdiction of the subject matter of the action is considered in law as taken to the merits and not merely to the jurisdiction of the court over the person of the defendant and an appearance for the purpose of entering such objection is, in fact, a general appearance which waives any defect in the jurisdiction arising either from want of service on defendants or from a defect therein." See cases there cited.
Applying these principles to the case in hand, if the movants had, as is said in Dailey Motor Co., v. Reaves, supra, confined their motion to dismiss for want of jurisdiction over their persons, all would have been well with them, but when they asked the court to adjudge as to want of jurisdiction over the subject of the action, they converted their special appearance into a general one. It follows, therefore, that the movants have waived any defect in the jurisdiction arising for want of service on them,and they are in court. Williams v. Cooper, supra.
This brings us to the second question: As to whether the Domestic Relations Court of Buncombe County, North Carolina, has jurisdiction over the child, Deanna Blalock, the subject of the proceeding.
The establishment of Domestic Relations Courts was authorized, and the machinery therefor provided by the General Assembly of 1929. See P.L.1929, Chapter 343. While the act as originally passed did not apply to Buncombe County, it was made applicable thereto by an amendatory actChapter 208 of P.L.1941. The act authorizing the establishment of such court, as amended from time to time, became sub-chapter IV of Chapter 7 of General Statutes entitled "Courts". And the General Statutes became effective 31 December, 1943, and have been in effect since then.
Section 3 of Act of 1929, now G.S. § 7-103, provides, among other things, that Domestic Relations Courts, where established, shall have, and be vested with all the power, authority, and jurisdiction theretofore vested in the juvenile courts of North Carolina,said power, authority, and jurisdiction being as fully vested in the Domestic Relations Court as if therein particularly set forth in detail; and in addition thereto such Domestic Relations Courts shall have exclusive original jurisdiction over, among others, "(c) All cases involving the custody of juveniles, except where the case is tried in Superior Court as a part of any divorce proceeding". See In re Morris, 224 N.C. 487, 31 S.E.2d 539, and Id., 225 N.C. 48, 33 S.E.2d 243.
What then are the "power, authority, and jurisdiction" given to juvenile courts? The Juvenile Court Act, enacted by the General Assembly of 1919, Chapter 97 of P.L.1919, later becoming Article 2 of Chapter 90 of the Consolidated Statutes, on the subject "Child Welfare", and now Article 2 of Chapter 110 of the General Statutes, on the same subject, provides that the Superior Courts shall have exclusive original jurisdiction of any case of a child less than sixteen years of age residing in or being at the time within the respective districts "who is in such condition or surroundings or is under such improper or insufficient guardianship or control as to endanger the morals, health, or general welfare of such child". This jurisdiction when obtained in the case of any child shall continue for the purposes *857 of the statute on "Child Welfare" during the minority of the child, unless a court order be issued to the contrary. G.S. § 110-21. State v. Coble, 181 N.C. 554, 107 S.E. 132; In re Coston, 187 N.C. 509, 122 S.E. 183; In re Morris, supra. See also Phipps v. Vannoy, 229 N.C. 629, 50 S.E.2d 906.
This section of the statute, G.S. § 110-21, also imposes upon the court the constant duty to give to each child subject to its jurisdiction such oversight and control in the premises as will conduce to the welfare of such child and to the best interest of the State. In re Morris, supra.
And for the purpose of hearing cases coming within the provisions of the statute the General Assembly established in each county of the State a separate part of the Superior Court of the district, such part to be called "The Juvenile Court" of the particular county, and appointed and authorized the Clerk of Superior Court of each county to act as judge of the Juvenile Court in the hearings of such cases within such county. G.S. § 110-23.
The express intention of this statute is "that in all proceedings under its provisions the court shall proceed upon the theory that a child under its jurisdiction is the ward of the state and is subject to the discipline and entitled to the protection which the court should give such child under the circumstances disclosed in the case". G.S. § 110-24.
Moreover, any order or judgment made by the court in the case of any child shall be subject to such modification from time to time as the court may consider to be for the welfare of the child, except in certain cases not pertinent here. G.S. § 110-36. In re Morris, supra; see also State v. Burnett, 179 N.C. 735, 102 S.E. 711; In re Coston, supra.
The procedure for initiating a proceeding and for notice or summons to the parent is prescribed in the statute G.S. § 110-25 to G.S. § 110-28. And it is also provided that upon the return of the summons or other process, the court shall proceed to hear and determine the case in a summary manner. And that upon such hearing, the court, if satisfied that the child is in need of care, protection or discipline of the State, may so adjudicate, and may find the child to be delinquent, neglected, or in need of more suitable guardianship, and thereupon may, among other provisions, commit the child to the custody of a relative or other fit person of good moral character, subject, in the discretion of the court, to the supervision of a probation officer and the further orders of the court, or render such further judgment or make such further order of commitment as the court may be authorized by law to make in any given case. G.S. § 110-29.
In the Coston case, supra [187 N.C. 509, 122 S.E. 185], this Court in an opinion by Hoke, J., referring to the Juvenile Court Act, as construed and applied in State v. Burnett, supra; State v. Coble, supra, and In re Hamilton, 182 N.C. 44, 108 S.E. 385, had this to say: "From the principles approved in these decisions and in further consideration of the statute and its terms and purpose, it appears that the law has primarily conferred upon these juvenile courts the power to initiate and examine and pass upon cases coming under its provisions. That these powers are both judicial and administrative, and when having acquired jurisdiction, a juvenile court has investigated the case and determined and adjudged that the child comes within the provisions of the law and shall be controlled and dealt with as a ward of the state, this being in the exercise of the judicial powers in the premises, fixes the status of the child, and the condition continues until the child is of age, unless and until such adjudication is modified or reversed by a further judgment of the court itself or by the superior court judge hearing the cause on appeal as the statute provides." See also In re Prevatt, 223 N.C. 833, 28 S.E.2d 564.
Applying the provisions of the statute as so interpreted by this Court to the facts found by the judge of the trial court, as set forth in the judgment from which this appeal is taken, it clearly appears that the Domestic Relations Court of Buncombe County (standing in the stead of the Juvenile Court), by the proceedings had on the petition of the Carters in March *858 1947, fixed the status of Deanna Blalock, as a ward of the State, which condition continues, and will continue until she is of age, unless and until such adjudication be modified or reversed by a further judgment of the court itself or by the Superior Court judge hearing the cause on appeal as the statute provides.
But the appellants say, in effect, that whatever jurisdiction the Domestic Relations Court obtained over the child by virtue of the order of that court dated March 26, 1947, no longer exists for several reasons: First, that the order was terminated by the interlocutory order entered by the Clerk of Superior Court of Buncombe County on September 2, 1947, in the adoption proceeding instituted by the Carters in that that order was a "court order * * * issued to the contrary" within the meaning of G.S. § 110-21. This position is untenable. See opinion by Hoke, J., in the Coston case, supra. Moreover, the statute expressly declares that the term "court" when used in the Juvenile Courts Act without modification refers to the juvenile courts established as provided therein. G.S. § 110-23. See also In re Hamilton, supra; In re Coston, supra; In re Prevatt, supra. And since the "power, authority, and jurisdiction" of the juvenile courts, G.S. § 7-103, is vested in Domestic Relations Courts, the term "court" would refer to the latter.
On the other hand, a proceeding for adoption of a minor child, under the statute pertaining thereto, Chapter 48 of General Statutes, read in connection with the provisions of G.S. § 1-7 and G.S. § 1-13, is before the Clerk of Superior Court.
And the statute provides that when all the prescribed conditions satisfactorily appear the court "may tentatively approve the adoption and issue an order giving the care and custody of the child to the petitioner", and within two years of "the interlocutory order" the court shall complete the proceeding by an order granting letters of adoption, or, in its discretion by an order dismissing the proceeding; that the effect of any adoption so completed shall be retroactive to the date of the application; that during this interval the child shall remain the ward of the court and shall be subject to such supervision as the court may direct; and that the order granting letters of adoption shall state whether for the minority or for the lifetime of such child and shall have the effect forthwith to establish the relation of parent and child between the petitioner and the child. G.S. § 48-5.
Here it is noted that the word "tentatively," as used in this statute, is the adverbial form of the word "tentative" which Webster defines "as of the nature of an attempt, experiment or hypothesis to which one is not finally committed; making trial; testing".
It is noted also that the order tentatively approving the adoption is denominated "interlocutory order". Such an order is provisional or preliminary, and does not determine the issues in the action but directs some further proceedings preliminary to a final decree. McIntosh N. C. P. & P., Section 614, p. 686. Johnson v. Robinson, 171 N.C. 194, 88 S.E. 231; Russ v. Woodard, 232 N.C. 36, 59 S.E.2d 351, 355.
Indeed, an interlocutory order differs from a final judgment in that an interlocutory order is "subject to change by the court during the pendency of the action to meet the exigencies of the case". See Russ v. Woodard, supra, and cases cited.
Thus it appears that the General Assembly has created both Domestic Relations courts and Clerks of Superior Court as separate branches of the Superior Court. To the former is given exclusive original jurisdiction over all cases involving the custody of juveniles, G.S. § 7-103, and to Clerks of Superior Courts jurisdiction of proceedings for the adoption of minor children with right, incidental to temporary approval of application for adoption to "issue an order giving the care and custody of the child to the petitioner". Chapter 48 of G.S. and G.S. § 1-7 and G.S. § 1-13.
And for the purpose of learning and giving effect to the legislative intention, all statutes relating to the same subject are to be compared and so construed in reference to each other that effect may be given to all provisions of each, if it can be done by any fair and reasonable interpretation. Alexander v. Lowrance, 182 N.C. 642, 109 S.E. 639.
*859 In the light of this rule of construction, applied to the two statutes now being considered, we regard it clearly the intention of the General Assembly that the Domestic Relations Courts have the exclusive original jurisdiction in all cases of a child coming within the purview of the Juvenile Court Act and the Domestic Relations Court Act, which, when once acquired, and the status of the child is fixed, continues during the minority of the child.
And we regard it equally clear that the provision in the adoption statute that the court (the Clerk), if it be satisfied that the adoption be for the best interests of the child "may tentatively approve the adoption and issue an order giving the care and custody of the child to the petitioner" during the testing period, so to speak, is provisional, and is not intended to oust the jurisdiction of the Domestic Relations Court in a case involving question of custody of such child.
Secondly, appellants contend that since neither the child nor they, styled adoptive parents, are within the bounds of the State of North Carolina, and are in the State of Illinois, the Domestic Relations Court of Buncombe County, North Carolina, is without power to enforce its adjudication which is an essential to jurisdiction. In taking this position appellants lose sight of the fact that the petition filed by the mother is for the modification of an order of the Domestic Relations Court entered in the exercise of exclusive original jurisdiction acquired over both the mother and the child in a proceeding involving the custody of the child. The power to modify such order is expressly granted to the court by statute, G.S. § 110-36, referred to hereinabove with citations of pertinent cases. And the question whether under such statute a court may alter or modify its decree as to the custody of the children, in the absence of the parent or the child from its territorial jurisdiction, case annotators say, has been resolved, by the great weight of decisions, in favor of the existence of such power in the court. See Annotation 70 A.L.R. 526 of pertinent subject-citing among other cases Hersey v. Hersey, 271 Mass. 545, 171 N.E. 815, 70 A.L.R. 518. See, also, In re Morris Custody, 225 N.C. 48, 33 S.E.2d 243.
Indeed, the appellants are now in court. And the cases of In re DeFord, 226 N.C. 189, 37 S.E.2d 516, and others cited and relied upon by appellants are distinguishable in factual situation.
Thirdly, appellants say "there was no violation of the court order or court jurisdiction when they took the child to their home, etc.," As to this, attention is directed to the findings of fact made by the trial court and to the statute G.S. § 110-52, a section of Article 4 of Chapter 110 of General Statutes, as rewritten by Section 3 of Chapter 609 of 1947 Session Laws of North Carolina, effective 1 July, 1947, which declares that "No child shall be taken or sent out of the State for the purpose of placing him in a foster home or in a childcaring institution without first obtaining the written consent of the State Board of Public Welfare * * *". The terms "he" or "his" or "him" used in the statute is made to apply to a female as well as to a male. G.S. § 110-56.
Moreover, it is provided in G.S. § 110-55, a section of Article 4 of Chapter 110 of General Statutes, that "Every person acting for himself or for an agency who violates any of the provisions of this article * * * shall, upon conviction thereof, be guilty of a misdemeanor and punished by fine of not more than two hundred dollars or by imprisonment for not more than six months, or by both such fine and imprisonment".
Lastly, while appellants in the statement of facts in their brief, say that the petitioner commenced this proceeding on January 13, 1950, that they, appellants, first heard of the existence of this proceeding by a letter which was received some time after February 7, 1950; that upon discovery that the matter had not been concluded in North Carolina, appellants, on March 10, 1950, filed a petition for adoption of the child under the laws of the State of Illinois in the County Court of Cook County, Illinois, and that a final adoption decree was entered in which facts were found upon which jurisdiction *860 of the Illinois Court was determined; and that appellee had opportunity to raise the question of Illinois jurisdiction, and upon failing so to do is estopped to deny the jurisdiction of that court.
In this connection it is noted that the Illinois Revised Statutes 1947, Chapter 4, pertaining to adoption of children, in Sec. 1-2 provides that the petition for adoption shall state:
"1. The name, if known, the sex and the place and date of birth of the child sought to be adopted; and
"2. The name, if known, of the person or organization having the legal custody of such child; and
"3. The name, if known, of each of the parents or of the surviving parent of such child; and whether such parent or parents are or is a minor, or otherwise under any legal disability; * * * and
"4. That the child has resided in the home of the petitioner at least six consecutive months immediately preceding the filing of the petition, if such is the fact * * *", and, that "The petition shall be verified by the petitioner".
In the light of this Illinois statute, while the petition states that the child Deanna Blalock was born at Crossnore, Avery County, North Carolina, on December 15, 1943, and that Mary Blalock, the mother, is the sole legal parent of said child, there is no disclosure of the facts (1) that the child became a ward of the Domestic Relations Court of Buncombe County, North Carolina, in March 1947, a proceeding involving question of the custody of the child, and that the mother is moving in said court for modification of order made in March 1947; (2) nor as to the circumstances under which they, the petitioners-appellants, acquired possession of the child; (3) nor as to the assurances given by them in respect to the child; (4) nor as to their removal of the child from North Carolina without, first, having obtained the consent of the State Department of Welfare of North Carolina, or of any court,facts found by the trial court in present proceeding. Nor is there allegation of facts which would work a change of the domicile of the child.
Moreover, the judgment of the Illinois court indicates upon inspection that it is predicated upon the facts alleged, and there is no finding in respect of the matters so withheld from the petition.
Hence, we hold that the conclusions of law made by the trial court that the child has never lost her domicile in the State of North Carolina and that the purported adoption of the child in the State of Illinois is void and of no effect, are well founded and proper.
The Conflict of Laws, by Joseph H. Beale, Vol. 1, Chapter 2, on the subject of Domicile, declares that every person must have a domicile of origin; that this domicile comes into being as soon as the child becomes at birth an independent person; that this domicile is retained until it is changed in accordance with law; that if the child be illegitimate it takes its mother's domicile, Thayer v. Thayer, 187 N.C. 573, 122 S.E. 307, 308; that there can be no change of domicile without an intention to acquire the new dwelling as a home, or as it is often phrased, without an animus manendi. Hence "an unemancipated infant, being non sui juris, cannot of his own volition select, acquire, or change his domicile". Thayer v. Thayer, supra; Duke v. Johnston, 211 N.C. 171, 189 S.E. 504. See also Allman v. Register, N.C., 64 S.E.2d 861.
Moreover, the Conflict of Laws, supra, Vol. 2, on the subject of adoption, states that jurisdiction to adopt would seem to depend strictly on common domicile of both parties, since the status of both is affected.
A judgment obtained in another State may be challenged in this State by proof of fraud practiced in obtaining the judgment which may have prevented an adverse trial of the issue, or by showing want of jurisdiction either of the subject matter or as to the person of the defendant. See Crescent Hat Co., v. Chizik, 223 N.C. 371, 26 S.E.2d 871, and cases there cited.
For reasons stated, the judgment below is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263178/ | 238 P.3d 835 (2008)
MARTINEZ
v.
ALL STAR BAIL BONDS.
No. 51368.
Supreme Court of Nevada.
June 6, 2008.
Decision Without Published Opinion Dismissed-Stipulation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334357/ | 244 Ga. 365 (1979)
260 S.E.2d 75
BROUGHTON
v.
GRIFFIN.
35219.
Supreme Court of Georgia.
Submitted August 30, 1979.
Decided September 26, 1979.
John W. Andre, Jr., for appellant.
Andrew J. Ryan, III, District Attorney, Robert M. Hitch, III, Assistant District Attorney, for appellee.
JORDAN, Justice.
This is an appeal from an order denying the appellant's petition for a writ of habeas corpus in an extradition proceeding.
North Carolina sought to extradite the appellant in April 1978. At a habeas corpus hearing on May 5, 1978, appellant testified that he was not in the State of North Carolina on the date of the alleged offenses. In the absence of evidence to the contrary, the petitioner's writ was granted and there was no appeal from that order. Subsequent thereto the Supreme Court of the United States decided the case of Michigan v. Doran, ___ U. S. ___ (99 SC 530, 58 LE2d 521) (1978) which eliminated the necessity of showing presence in the demanding state at the time the crime was committed.
North Carolina again sought appellant's extradition based on the same charges in the 1978 extradition. Appellant sought release on the ground that the previous ruling was res judicata to any subsequent extradition based on the same set of facts. No additional evidence was presented by either party.
The trial court on May 10, 1979, in a well reasoned opinion, held that the doctrine of resjudicata did not apply to the facts of this case and denied the writ, from which this appeal followed. We affirm.
While we recognize that the grant of a writ of habeas corpus is generally to be given res judicata effect in a *366 subsequent habeas proceeding based on the same issues of law and fact (Sanders v. McHam, 206 Ga. 155 (56 SE2d 281) (1949)), we clearly held in Harris v. Massey, 241 Ga. 580 (247 SE2d 55) (1978), that "where a previous writ of habeas corpus in an extradition proceeding was granted because of the insufficiency of the supporting documents or other technical defects which may be subsequently corrected, the prior judgment granting the writ of habeas corpus will not be res judicata in a subsequent extradition demand brought to avoid the technical objections fatal to the first proceeding. This holding is in harmony with the majority of decisions from other jurisdictions on this question. See 31 AmJur2d 977, Extradition, § 70; 4 Wharton's Crim. Law and Proc. 411, Extradition, § 1677; 39A CJS 322, Habeas Corpus, § 228; 33 ALR3d 1443; 39 AmJur2d 293, Habeas Corpus, § 161." (Emphasis supplied.)
In its order the trial court pointed out that extradition "does not test the guilt or innocence of the defendant. No double jeopardy can arise out of a decision in an extradition proceeding. Extradition is akin to a preliminary hearing. In a preliminary hearing, if the defendant is discharged for any reason, the State is not barred by res judicata from requesting a Grand Jury to indict the same defendant on the same charge at a later date." The court further reasoned that one who has been released under a habeas corpus petition in an extradition proceeding on the basis that he was not in the demanding state at the time the crime was committed could not claim that as a bar against the demanding state proceeding against him at a later date should he return to that state and be arrested on the same charges.
In Alford v. N. C., 405 F2d 340 (4th Cir. 1968) it was stated that "Res judicata has no place in habeas corpus proceedings ... Especially is this so when there is reason to reappraise the facts because of the introduction of a new pertinent rule of law." Accord, St. Pierre v. Helgemoe, 545 F2d 1306 (1st Cir. 1976). The trial court was correct in applying the ruling in Michigan v. Doran, supra, which eliminated the requirement that the demanding state must prove that the defendant was in that state at the time the crime was committed. For a case with a similar *367 factual situation, see Tyler v. Henderson, 322 FSupp. 142 (E. D. La. 1971); where it was said "... we believe that there is no legal impediment to this Court considering fully, and de novo, on its merits, the petitioner's application for habeas corpus, even though a similar writ had been previously granted by another Court."
The trial court, having found that all documents before the court were in good order, did not err in denying the appellant's petition for habeas corpus.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334361/ | 244 Ga. 339 (1979)
260 S.E.2d 56
LOCKEY
v.
BENNETT et al. LOCKEY et al.
v.
BENNETT et al.
35018, 35019.
Supreme Court of Georgia.
Submitted June 12, 1979.
Decided September 26, 1979.
*341 R. Hopkins Kidd, for appellants.
T. Henry Clarke, IV, for appellees.
JORDAN, Justice.
These two appeals challenge the validity of an adoption of a ten-month-old girl by her paternal grandparents. The appellants are her maternal grandparents.
Before the child was born, the natural parents, both being very young, had considered the possibility of the paternal grandparents adopting her. Instead, they tried to care for the child which resulted in her becoming very ill. The DeKalb County Juvenile Court then placed the child in the temporary custody of the maternal grandparents. At that point, the paternal grandparents obtained the consent to adoption from both natural parents and filed this action to adopt the child in the Gwinnett County Superior Court. The maternal grandparents sought to object to the adoption proceedings through a motion to intervene which was denied. A *340 guardian ad litem was appointed, and the maternal grandparents were allowed to question witnesses and participate in the hearing through him. After considering the testimony and evidence, the trial judge issued an order granting the paternal grandparents' petition for adoption. Upon refusal of appellants to surrender possession of the child, appellees brought a petition for habeas corpus which was granted.
In Case number 35018, the maternal grandparents appeal the denial of their motion to intervene. In Case number 35019, they appeal as to the merits of the adoption proceeding. Held:
1. Code Ann. § 81A-124 (a)(2) provides that a party may intervene as a matter of right when an interest in the subject matter of the action will be impaired absent his or her participation, "unless the applicant's interest is adequately represented by existing parties." The trial judge ruled that the maternal grandparents had no interest in the adoption because the natural parents, both still living, had consented and cited the cases of Hiott v. Duncan, 122 Ga. App. 563 (178 SE2d 43) (1970), and Hester v. Mathis, 147 Ga. App. 257 (248 SE2d 538) (1978), as supporting authority. Those cases hold, both construing Code Ann. § 74-411 (formerly Code Ann. § 74-412), that relatives of a child may not file objections to its adoption as long as one natural parent is living and has consented. This removes the maternal grandparents' legal interest in this adoption entirely, and it was not error to deny their motion to intervene. The judgment in Case number 35018 is affirmed.
2. The judgment in Case number 35018 having been affirmed, the maternal grandparents were properly not parties below. "Only parties to the proceeding below may be parties on appeal. [Cit.]" Samples v. Greene, 138 Ga. App. 823, 827 (227 SE2d 456) (1976). Therefore, appellants have no standing to complain of any alleged error in Case number 35019 through direct attack, and this appeal is dismissed.
Judgment in Case No. 35018 affirmed. Appeal in Case No. 35019 dismissed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334363/ | 260 S.E.2d 826 (1979)
WEST VIRGINIA DEPARTMENT OF HIGHWAYS et al.
v.
Howard G. BUCKLEY.
No. 14530.
Supreme Court of Appeals of West Virginia.
December 11, 1979.
*827 William L. Jacobs, Parkersburg, for plaintiffs-in-error.
Ronning, Brown & Full, Joseph M. Brown, Parkersburg, for defendant-in-error.
PER CURIAM:
In 1963, the appellant, Howard G. Buckley, was the owner of an island located in the Ohio River near Marietta, Ohio. The West Virginia Department of Highways, acting under the power of eminent domain, condemned a portion of the island as a right of way for a pier for a bridge to carry Interstate 77 across the river. The question of just compensation for the land taken and damages to the residue was ultimately decided on September 2, 1976 by a Wood County Circuit Court jury. They returned a verdict finding $2,000.00 was just compensation *828 to Mr. Buckley. A motion to set aside the verdict was made and by order of February 3, 1978, denied. This appeal raises a number of issues relating to the correctness of the trial court's rulings. We conclude the trial court acted correctly in regard to all matters complained of.
Buckley's Island is underlain by sand and gravel. Appellant contends the court foreclosed his offers of evidence of the existence and quantity of sand and gravel underlying the island. Appellant also contends the court prevented the offer of evidence of damages to the residue occasioned by the inability of the appellant to remove sand and gravel from within 500 feet of the bridge pier; removal within this area being prohibited by a United States Army Corps of Engineers' regulation.
After carefully examining the record we conclude these claims are without merit. Appellant had an opportunity to present evidence as to the existence and quantity of the sand and gravel. In fact, Mr. Buckley himself testified on these points. An appraiser testifying as the appellant's expert witness was permitted to testify he had considered the existence of the sand and gravel in the condemned area and also had considered the loss of the right to remove sand and gravel from the residue covered by the 500 foot prohibition. The record demonstrates that his opinion as to damages was based on these matters.[1]
Appellant contends the trial court acted incorrectly when it refused to give certain instructions. Initially, we note that appellant's Instructions 1 and 3A were given.[2]
Appellant contends the trial court erred in refusing to give his Instruction No. 2 which would have told the jury that in ascertaining the market value the landowner is entitled to consideration of all the advantages which the land possesses. This concept was embodied in Instruction No. 1 given by the court, and, therefore, it was not error for the court to refuse Instruction No. 2.
*829 "It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given." Syl. pt. 3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).
Appellant also contends it was error for the court to refuse to give his Instruction No. 3, which would have told the jury that the presence, quantity and value of sand and gravel may be taken into consideration in ascertaining the value of land in condemnation proceedings. The concept of this instruction was adequately covered by appellant's given Instructions Nos. 1 and 3A, and accordingly it was not error to refuse it. Morgan, supra.
Appellant contends the trial court should have given his Instruction No. 11 which would have told the jury that in assessing the compensation to award the landowner they could consider the damage to the residue by reason of the loss of his right to remove sand and gravel from that residue:
"For the purpose of determining market value in a condemnation proceeding to take land in fee which forms a part of a larger tract, consideration should be given to every element of value which ordinarily arises in negotiations between private persons with respect to the voluntary sale and purchase of land, the use made of the land at the time a part of it is taken, its suitability for other uses, its adaptability for every useful purpose to which it may be reasonably expected to be immediately devoted, and the most advantageous uses to which it may be so applied." Strouds Creek and Muddlety Railroad Co. v. Herold, et al., 131 W.Va. 45, 45 S.E.2d 513 (1947).
Strouds Creek goes on to say that value based on future or prospective uses which are predicated on speculation or conjecture is not to be considered. Instruction No. 11 ignores the Strouds Creek immediacy requirement. Accordingly, it is an incorrect statement of the law, and was properly refused for that reason. "An instruction which does not correctly state the law is erroneous and should be refused." Syl. pt. 2, State v. Collins, 154 W.Va. 771, 180 S.E.2d 54 (1971).
The appellant contends the trial court erred when it refused to give Instruction No. 4 which would have told the jury that the value of the property for any purpose for which it is available may be considered in determining the fair market value. This instruction was properly refused because it does not embody the Strouds Creek immediacy requirement, and does not rule out the consideration of purposes or uses based on speculation or conjecture. Accordingly, it incorrectly states the law. Instructions which are incorrect statements of law should be refused. Collins, supra.
Appellant contends the court erred when it refused to give Instruction No. 6. This would have told the jury that in determining the value of land taken they could ascertain the value on the basis of the most advantageous use or uses to which the land may reasonably be applied. This instruction, like the two foregoing instructions, does not limit the inquiry into value to those uses to which the land may be reasonably expected to be immediately applied; accordingly it misstates the law as embodied in Strouds Creek and was properly refused for that reason. Collins, supra.
The final point considered is the contention the jury verdict was so grossly inadequate as to warrant this Court's overturning it. Interwoven with this claim is the contention the jury verdict was inadequate because the state's appraisers failed to consider the existence of sand and gravel. The record discloses a wide difference in the damages found by the state's and the appellant's appraisers.
The state's appraisers proceeded on the theory the highest and best use of the land was for agricultural purposes. It was their opinion the sand and gravel deposits were not suitable for commercial development. Accordingly, sand and gravel, its existence, quantity, and the loss of the right to remove it was not a factor in their appraisals.
Appellant's experts differed on the marketability of the deposits, and found the *830 highest and best use of the land was for sand and gravel mining. At trial the appellant made no challenge to the testimony of the State's appraisers on the ground their opinions were without a proper foundation; no motion to strike their testimony was made. Accordingly, the case went to the jury on the conflicting expert opinion:
"A jury verdict based on conflicting testimony, involving credibility of witnesses and reasonable inferences to be drawn from testimony and approved by the trial court, will not be set aside by this Court on the ground that it is contrary to the evidence unless in that respect it is clearly wrong." Syl. pt. 9, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966).
The appellant assigns a number of other errors. However, an examination of the brief reveals these assignments are not properly discussed or argued. Under these circumstances these assignments are waived and will not be considered by the Court. Syl. pt. 3, Higginbotham, et al. v. The City of Charleston, etc., et al., W.Va., 204 S.E.2d 1 (1974). Rules of Practice in the Supreme Court of Appeals, Rule VI, § 2.
Based upon the foregoing we conclude there is no error requiring the reversal of the judgment below and accordingly we affirm the final judgment.
Affirmed.
NOTES
[1] "Q. [By appellant's counsel of Mr. Matheny, appellant's appraiser] Were you made aware or did you make yourself aware, sir, of the sand and gravel deposit on Buckley Island on or about December, 1963, incident to your appraisal?
A. Yes, sir.
Q. Do you have an opinion, sir, as to the fair market value of the 1.45 acre tract of land involved in the take . . .?
A. I do.
Q. What was its fair market value as of that time, [time of the take] sir?
A. In my opinion, it was $20,300.00."
. . . . .
"Q. And, sir, was there any damage to the residue of the island by this take . . .?
A. Yes, there was.
Q. [The appraiser's testimony on the damage to the residue was, in part] . . . what did you consider as elements of that damage?
A. The 500 foot strip around the piers, which would make a 1,000 foot swath which would be inoperable as far as digging gravel."
. . . . .
"Q. In connection with your appraisal of this take and the damage of the residue, were you informed and advised that there was a limitation imposed for 500 feet on each side of the bridge pier from the standpoint of removal of sand and gravel?
A. Yes, sir."
. . . . .
"Q. Tell us, then, sir, if you will, Mr. Matheny, what then was the total fair market value of the property taken and the damage to the residue of Mr. Buckley's property?
A. For the take, I have $20,300.00; and for the damage to the residue, which is the 1,000 foot swath, I have $117,235, making a total, taken damages, of $137,535.00."
[2] Defendant's Instruction No. 1:
"In determining fair market value you should consider every element of value which ordinarily arises in negotiations between private persons with respect to the voluntary sale and purchase of property. You should consider the use being made of the land, at the time of its taking, its suitability for other uses, its adaptability for every useful purpose to which it may reasonably be expected to be immediately devoted, and the most advantageous uses to which it may be so applied." Defendant's Instruction No. 3A:
"In determining the compensation to be awarded the landowner in eminent domain proceedings, the existence if any, of mineral deposits which are shown by a preponderance of the evidence to be in the land taken constitutes an element which may be considered insofar as it influences the fair market value of the land." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334353/ | 244 Ga. 485 (1979)
260 S.E.2d 879
WILLIAMS
v.
THE STATE.
35291.
Supreme Court of Georgia.
Submitted August 24, 1979.
Decided October 17, 1979.
Montgomery & McDonald, Robert C. Montgomery, for appellant.
Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, Arthur K. Bolton, Attorney General, Nicholas G. Dumich, Assistant Attorney General, for appellee.
UNDERCOFLER, Presiding Justice.
Horace Thomas Williams appeals his conviction and life sentence for felony murder. We affirm.
1. A rational trier of fact could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, ___ U. S. ___ (99 SC 2781, 61 LE2d 560) (1979). Two eyewitnesses placed Williams, accompanied by Randy Dixon, near the front desk of a motor hotel where a night clerk was robbed, shot and killed. These witnesses had been playing pool in a nearby room when Williams and Dixon stopped at the door and Dixon inquired, "Who's winning?" Seconds after the two men left, the witnesses heard a groan, then a gunshot, and they ran to the front desk where they found the victim lying on the floor. One of the witnesses, a daughter of the deceased, ran outside where she saw Williams get behind the driver's seat of a red car with a black stripe on the rear. She testified he appeared to be arguing with Dixon. She kicked the car until restrained by Andy Patal, the motel manager, who drew her to safety and got the tag number as the car drove away. The car was owned by Williams' wife and traced to her. While Mountain View police interviewed Mrs. Williams, appellant called the station and told the police chief he didn't want his wife to suffer for something he had done. Two days later, accompanied by his wife and a retained attorney, he surrendered to police. He was arrested, given the Miranda warnings in the presence of his attorney, and with his consent, Williams made a statement on October 12, 1978. He said he and Dixon stopped at the motel to purchase cigarettes; that Dixon committed the crimes; that he had no knowledge that Dixon would commit the crimes; that he and Dixon left the motel together and threw away Dixon's gun. On October 16, 1978, he was interviewed a second time. Following Miranda warnings, and a brief discussion wherein Williams said he had no trouble with the October 12 statement and that he had a retained counsel whom he *486 named, Williams was asked if he wanted to talk to the investigators about the incident of October 7, and "he started right in telling us about it." This statement reiterated that appellant did not know Dixon was going to commit the robbery. On October 17, without further reference to Miranda, he was interviewed at 9:30 a. m. and again around 1:00 p. m. During these interviews, Williams at first denied his participation, then confronted with a .45 caliber pistol he had hidden following the robbery and murder, he admitted his active participation and sharing in the money stolen. The eyewitnesses positively identified Williams and Dixon in a subsequent line-up and in court. The contents of Williams' statements were introduced at trial through testimony of the investigating officer following a Jackson-Denno hearing concerning the statement of October 17. The court found the confession voluntary and submitted this question to the jury. Physical evidence indicated that Randy Dixon shot and killed the victim. Williams testified in his defense that his presence was unplanned and that the .45 pistol and ammunition he had hidden in plastic bags in a storm sewer was put there because he was frightened and didn't have "no papers on it."
2. Williams' indictment on Count 1 was not nol prossed. A single indictment in two counts armed robbery and felony murder was returned against Dixon and Williams. Following a grant of severance, Dixon pled guilty to Count 2 felony murder and was sentenced to life. At Dixon's sentence hearing, the state filed a nolle prosequi as to Dixon on Count 1. Williams was subsequently tried and convicted on both counts. Appellant's motion for new trial challenged the legality of the verdict, arguing when Count 1 was nol prossed against Dixon this effectively terminated this count against Williams as well. The court in its order denying the motion for new trial concurred, but held such error in the indictment was harmless because the armed robbery "merged" into Count 2, the felony murder. Pretermitting the question of merger, we conclude there was no termination of Count 1 against Williams. "Nolle Prosequi. Lat. In practice, a formal entry upon the record by ... the prosecuting officer in a criminal action ... by *487 which he declares that he `will no further prosecute' the case, either as to some of the counts, or some of the defendants, or altogether." Black's Law Dict., 4th Ed., p. 1198. A separate written order on the nolle prosequi was entered as to Dixon showing clearly that Count 1 of the indictment was abandoned only as to him. Lamp v. Smith, 56 Ga. 589 (1) (1876); Martin v. State, 10 Ga. App. 795 (1) (74 S.E. 304) (1912); and Dealy v. United States, 152 U.S. 539 (1) (1894) cited by appellant are inapposite.
3. It was not error to permit the Chief of the Mountain View Police to testify as to his conversation with Williams' wife while investigating the case, where, as here, a proper instruction limited the purpose to explain conduct and ascertain motives. Code Ann. § 38-302; Brown v. State, 240 Ga. 274, 275-276 (4) (240 SE2d 63) (1977); English v. State, 234 Ga. 602, 604-605 (4) (216 S.E.2d 851) (1975).
4. (a) Appellant contends the trial court erred in admitting statements obtained from him on October 17 involuntarily by coercion and without proper advisement of his constitutional rights, citing Miranda v. Arizona, 384 U.S. 436. Williams testified he was awakened early, was sleepy and suffering from a head cold when he made the incriminating statements. He also testified he was afraid because he was handcuffed, kept behind locked doors when questioned, and he was threatened. The state rebutted this testimony showing appellant was brought down around 9:30 a. m. and interviewed for twenty to thirty minutes, that he did not appear sleepy or that he was suffering from a cold. This testimony also showed the interrogation room door was closed for privacy and that appellant's handcuffs were removed while he was in the office the same office in which he had previously been questioned the day before. No promises were made and he was not threatened in any manner. The jury was properly charged to make an independent determination that the confession was voluntary before considering it. We conclude the state met its duty to show by the preponderance of the evidence that the confession was voluntary under the circumstances of this case. Pierce v. State, 235 Ga. 237, 239 (219 SE2d 158) (1975), citing Lego v. Twomey, 404 U.S. 477 (1972); Thomas v. State, 233 Ga. *488 237, 240 (210 SE2d 675) (1974).
(b) We also conclude the state was under no duty to repeat the Miranda warnings given the day before where, as here, the interviews were part of a continuing interrogation. Gregg v. State, 233 Ga. 117, 124 (210 SE2d 659) (1974), affd. 428 U.S. 153 (1976), reh. den. 429 U.S. 875 (1976); Watson v. State, 227 Ga. 698 (1) (182 SE2d 446) (1971).
(c) Though not argued by appellant, we also conclude that appellant was properly advised under Miranda of his constitutional right to the presence of retained counsel during these interrogations on October 17 and intentionally abandoned the privilege under the circumstances of this case. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464 (1938).[1] The Miranda warnings do not mandate that a specific question naming retained counsel be asked or asking if he or she wants that particular attorney present. See United States v. Brown, 569 F2d 236 (5th Cir. 1978). It is also not required in every case that an explicit statement waiving the right to counsel is indispensable to a finding of waiver. "The courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated." North Carolina v. Butler, ___ U. S. ___ (Case No. 78-354, decided April 24, 1979). Thus, "the defendant's silence, coupled with an understanding of his rights and a course of conduct may ... support a conclusion that a defendant has waived his rights." North Carolina v. Butler, supra. Williams was 25 and worked in an Atlanta airport restaurant. He voluntarily surrendered and obtained retained counsel before surrendering to the police. When Miranda warnings were given on October 16, he acknowledged he understood them, and on cross examination on trial, he affirmatively *489 acknowledged that he knew he had the right to counsel when interviewed on October 17. We conclude this course of conduct clearly shows a waiver of the presence of retained counsel.
5. Appellant contends it was error to permit the jury, over objection, to overhear a colloquy between the court and Randy Dixon who was to testify for the state but balked when his attorney was not present. During the discussion, the court established the reason Dixon was refusing to testify was because he did not want to be a "snitch." He said he had a brother in jail and "... I'm not going down the road with this on my back `cause I know what they'll do to a snitch ... He snitched see, and that's his business. I'm not going, you know, come back and snitch on him because he did me like that ..." Appellant contends this discussion created reversible error because it exposed appellant to prejudicial and damaging remarks as well as representing an attempt by the prosecution to put a witness on the stand for the purpose of having him exercise his privilege against self-incrimination before the jury. See Bowles v. United States, 439 F2d 536 (D.C. Cir. 1970). There is no evidence of knowledge by the prosecutor that this witness would not testify unless his attorney was present. The prosecutor's office had sought to find Dixon's attorney for him, but could only establish that the attorney was "out-of-pocket"; however, this falls far short of establishing that the prosecutor knew Dixon would not testify. On the contrary, the colloquy that resulted showed he was surprised by this development. There was neither "a conscious and flagrant attempt" to build the prosecution's case out of inferences arising from the use of the testimonial privilege nor did the refusal to testify add "critical weight" to the prosecution's case. See Namet v. United States, 373 U.S. 179 (1963). Here there was abundant evidence independent of Dixon's testimony establishing Williams' role in the crimes, including his own testimony linking him to the robbery. Further, as to whether or not the elicited discussion between the court and Dixon was prejudicial, we cannot say in the absence of an objection to the remarks, a motion for mistrial or a demand for curative instructions such as would preserve the issue for review on appeal. Allen v. State, 235 Ga. 709, *490 715 (221 SE2d 405) (1975). Assuming the remarks were prejudicial, we would find them harmless as being merely cumulative of appellant's own statements given to police and testimony at trial in which he sought to escape all responsibility for the crimes by placing the blame on Dixon.
Judgment affirmed. All the Justices concur, except Hill, J., who dissents as to Division 5.
HILL, Justice, dissenting.
During the trial of Thomas Williams, the prosecutor called an alleged accomplice, Randy Dixon, to the stand to testify for the state. The prosecutor asked Dixon if he had pled guilty to the offense of felony murder of Mary Russell. Upon receiving an affirmative answer, the prosecutor asked Dixon who was with him when he robbed the victim. Dixon said he did not want to answer without his attorney being present. The prosecutor sought to have the court instruct the witness to answer, saying that his only basis for refusing was self-incrimination and his guilty plea removed that privilege. Defense counsel moved that these matters be considered outside the presence of the jury. This motion was overruled and the prosecutor was allowed to proceed.
The prosecutor proceeded to argue his motion to compel answer, contending that the witness had no right to counsel. The court asked the witness the basis for his refusal to testify. The witness said, among other things, "...I'm not going down the road with this on my back, cause I know what they'll do for a snitcher, and I'm not a snitcher, see. He snitched, see, and that's his business. I'm not going, you know, come back and snitch on him because *491 he did me like that."[1]
The majority find that there is no error to be reviewed "... in the absence of an objection to the remarks, a motion for mistrial or a demand for curative instructions such as would preserve the issue for review on appeal." In my view, where the state calls an alleged accomplice who refuses to testify, and the defense moves to exclude the jury while a motion to compel is being argued, it is an abuse of discretion not to exclude the jury. I would not require a further objection, or motion for mistrial or curative instructions.
Having an alleged accomplice on the witness stand refusing to testify is a potentially explosive situation and overruling the motion to excuse the jury under these circumstances was an abuse of discretion in my opinion.
NOTES
[1] It is the law of Georgia that considering the totality of the circumstances, a statement may be shown to be voluntary when made in the absence of retained counsel. Whisman v. State, 221 Ga. 460 (145 SE2d 499) (1965); Pierce v. State, supra.
[1] An investigator for the district attorney's office had testified that the defendant confessed first and named Dixon. After the discussion between the court and Dixon, the court ruled that the witness would not be compelled to answer without his attorney being present. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334133/ | 83 Ga. App. 508 (1951)
64 S.E.2d 344
BRINKMAN
v.
CITY OF GAINESVILLE.
33347.
Court of Appeals of Georgia.
Decided March 15, 1951.
*510 Pierce Brothers, for plaintiff in error.
Hammond Johnson Jr., Emory F. Robinson, contra.
GARDNER, J.
1. It is urged by the defendant that the court erred in overruling and dismissing the certiorari; and since it amounted to a final judgment, it is contended that the court should have remanded the certiorari to the lower court with proper instructions as to the application of the ordinance. The defendant cites in support of this contention Deaton v. Taliaferro, 80 Ga. App. 688 (57 S.E. 2d, 215). This case does not sustain the contentions of the defendant in the instances here under consideration. Code § 19-501 provides: "Upon the hearing of a writ of certiorari the superior court may order the same *511 to be dismissed, or return the same to the court from which it came, with instructions; and in all cases when the error complained of is an error in law which must finally govern the case, and the court shall be satisfied there is no question of fact involved which makes it necessary to send the case back for a new hearing before the tribunal below, it shall be the duty of the said judge to make a final decision in said case, without sending it back to the tribunal below." It will be noted that the section of the Code quoted provides that, if there is no question of fact involved which makes it necessary to send the case back for rehearing before the court below . . it shall be the duty of the said judge to make a final decision in the case without sending it back to the tribunal below." So far as we know this has long been the practice in this State. There is only a question of fact for the tribunal below to pass upon. As we have pointed out, the facts are undisputed. There is only a question of law as to whether the ordinance is valid or invalid as a matter of law, which we will discuss later.
2. We will discuss next the question as to whether the constitutional question as to the validity of the ordinance involved was properly raised in the lower tribunal. Counsel for the city contends in effect that, since there was no written demurrer or plea in the recorder's court raising the constitutional question, and it was raised only in the proceedings pertaining to the certiorari, this court is without authority to consider the same. We do not understand this to be the law applicable to the instant case. The recorder's court is not a court of record. It appears from the petition for certiorari and the answer of the trial judge that the defendant in the recorder's court defended on the ground that the ordinance was unconstitutional, and the case was tried on this theory and under this defense. Counsel for the city calls our attention to a number of decisions as follows: Brach Sons v. Oglesby Grocery Co., 33 Ga. App. 481; Hardy v. Mayor of Eatonton, 128 Ga. 27; Lovell v. Griffin, 55 Ga. App. 609; Rose Theater v. Lilly, 185 Ga. 53(2); Smith v. Mayor of Macon, 202 Ga. 68; Hood v. Griffin, 113 Ga. 190; Dodys v. State, 73 Ga. App. 311; Brockett v. Maxwell, 200 Ga. 213; West v. Frick Co., 183 Ga. 182; Gray v. City of Atlanta, 183 Ga. 730. We have read these cases with the view of ascertaining if any *512 of them sustain the position of counsel for the city. We cannot find that they do. Hood v. Griffin, supra, comes closer to it than any of the others. In the Hood case, on page 191, the court said: "The question as to the unconstitutionality of the ordinance, made in the oral argument and brief of counsel for plaintiff in error, is not presented for our determination by the record before us, it not having been made by the demurrers filed in the court below. The demurrers did allege that `the ordinance is absolutely null and void' that `the Mayor and Council of the City of Griffin had no authority to adopt an ordinance prohibiting the keeping for sale spirituous, vinous, or malt liquors within the corporate limits of the City of Griffin' and that `the said ordinance is an invalid restriction of the personal liberty of any citizen of Griffin to dispose of his domestic vinous liquors and non-intoxicating malt liquors and spirituous liquors not intended or sold as beverages.' But these allegations, whether taken separately or all together are entirely too general to be considered as an attack upon the constitutionality of the ordinance upon the ground urged in the argument here. Nothing in the demurrers even tends to indicate why the ordinance, as alleged in one paragraph `is absolutely null and void,' unless it be because, as claimed in another paragraph, `the Mayor and Council of the City of Griffin had no authority to adopt' it, and the ground upon which it is alleged that they had no such authority is left to mere conjecture. Nor is any reason given why `the said ordinance is an invalid restriction of the personal liberty of any citizen of Griffin to dispose of his domestic vinous liquors, and non-intoxicating malt liquors and spirituous liquors not intended or sold as beverages.' So far as the demurrers are concerned, we are left to grope in the dark for the ground, or grounds, upon which the validity of the ordinance was attacked. As a constitutional point was not made in the record, under the previous rulings of this court the question cannot be considered. Durham v. Cantrell, 103 Ga. 166; Brooks v. Raiden, 113 Ga. 86." It will be noted that in that case a demurrer was filed, and the court stated that it was left groping in the dark as to whether or not the constitutional question was raised in the demurrer filed in the court below. In the instant case, no demurrer was filed, but the defendant did, under his general plea *513 of not guilty, bring into question the constitutionality of the ordinance under which he was being tried; and it appeared from the petition for certiorari clearly and fully, and by the answer of the recorder who tried the defendant, that the constitutionality of the ordinance of the city was brought to the recorder's attention, and he passed on the constitutionality of the ordinance and found that it was valid, and the recorder further found, as appears from his answer, that the defendant abused his constitutional right by using a loud speaker in the manner he did and in violation of the ordinance. Therefore, we hold as a matter of law under the record of this case that the constitutional question as to the validity of the law under which the defendant was tried is properly before this court.
3. We come next to determine whether the judge of the superior court correctly overruled and dismissed the certiorari on the ground that the lower tribunal did not err in holding as a matter of law that the constitutional rights granted to the defendant under the provisions of the Constitution of the State of Georgia and of the United States, as herein above set forth, were not violated. The gist of the ordinance, which is contained in division 1 as set forth above, reads: "Upon and after the passage of this ordinance, the operation upon the public streets, alleys or thoroughfares of the City of Gainesville, by any person, firm or corporation, of a loud speaker or public address system from any vehicle." It is clear to our minds that this ordinance is not an infringement upon the rights of the defendant granted to him by the provisions of the Constitution of the State of Georgia nor of the United States. The thoroughfares of cities are for the comfort and convenience of all people using them. They are maintained by the public, and to say that anyone has a constitutional right to use, on these streets, a loud speaker or public-address system from any vehicle, it seems to us overlaps and interferes with the constitutional rights of other people. We find that it makes no difference whether the violation is using the loud speaker to broadcast what one terms recorded sermons or using the same for vending goods or promoting some political candidate or for some other purpose. This defendant definitely used this loud speaker, which could be heard for blocks, in a very noisy manner to the disturbance *514 of the public schools and other citizens in the city. It seems to us that to hold this ordinance unconstitutional would permit various religious sects or people of different political beliefs, or propagandists for business groups or competitors, either by themselves or all at once, to take charge of the thoroughfares of the City of Gainesville to the destruction of the rights, both personal and property, of citizens engaged in peaceful and lawful pursuits. This is not an ordinance against giving one the right to worship God according to the dictates of his own conscience, nor is it one to curtail or restrain the liberty of speech or of the press. We think that the intention of the ordinance was to prohibit artificial loud noises which interfered with constitutional and lawful rights of others on a public thoroughfare. Our attention is called to the case of Lovell v. Griffin, 303 U.S. 444, 453 (58 Sup. Ct. 666, 82 L. ed., 949), which reversed the Court of Appeals (55 Ga. App. 609). We do not think that the facts in that case are applicable here. Our attention is also called to Kovacs v. Cooper, 336 U.S. 77 (69 Sup. Ct. 448, 93 L. ed. 513, 10 A.L.R. 608). Upon a careful reading of that case it will be seen that the Supreme Court did not hold that an ordinance such as that under consideration here, was unconstitutional. In that case, which went to the Supreme Court from New Jersey, concerning an ordinance of the City of Trenton, the ordinance provided: "That it shall be unlawful for any person, firm, or corporation, either as a principal, agent or employee, to play, use or operate for advertising purposes, or for any other purpose whatsoever, on or upon the public streets, alleys or thoroughfares in the City of Trenton any device known as a sound truck, loud speaker or sound amplifier, or radio or phonograph with a loud speaker or sound amplifier, or any other instrument, known as calliope or any instrument of any kind or character which emits therefrom loud or raucous noise and is attached to or upon any vehicle operated or standing upon said streets of public places aforementioned." In that case Justices Reed, Vinson, and Burton joined in affirming the conviction of the defendant on the theory that the ordinance prohibited the use in streets, not only of sound trucks and amplifying devices, but such instruments and devices as emitted loud and raucous noises. Justices Frankfurter and Jackson in a separate concurring opinion *515 expressed a view that the city might absolutely prohibit all use of sound amplifiers in streets without infringement on the rights of free speech. Justices Black, Douglas, and Rutledge dissented on the ground that conviction was had under a construction of the ordinance which prohibits the use of sound trucks and sound amplifiers on the street and, therefore, infringed upon the defendant's constitutional rights. Justice Murphy dissented separately without an opinion. It seems to be the weight of authority from several States that such a prohibition as is involved in the ordinance in the instant case is not unconstitutional. We cite some of them. See Hamilton v. Montrose, 109 Colorado, 228 (124 P. 2d, 757); Maupin v. Louisville, 284 Kentucky, 195 (144 S.E. 2d, 237); People v. Reilly, 14 N. Y. Supp. 2d, 589. We would like also to call attention to Jones v. City of Moultrie, 196 Ga. 526 (27 S.E. 2d, 39), the principle in which is, we think, applicable to the question now under consideration. At page 530, the court said: "While there is no power to control what a person may believe about religion or the type of religion he may adopt or profess, yet there is a power under the law to limit his acts, even though to do such acts may be part of his religious beliefs."
From the authorities which we have called attention to (and there are many others), it will be readily discerned that the question under consideration in this, the 3rd division of our opinion, has received much discussion and brought forth diversities of opinion. But all in all, we are constrained to believe, under the record of the instant case, that the court did not err in overruling and dismissing the certiorari.
Judgment affirmed. MacIntyre, P.J., and Townsend, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334134/ | 364 S.E.2d 433 (1988)
321 N.C. 380
Charles YOUNGBLOOD
v.
NORTH STATE FORD TRUCK SALES and Liberty Mutual Insurance Company.
No. 517A87.
Supreme Court of North Carolina.
February 3, 1988.
*435 Teague, Campbell, Dennis & Gorham by George W. Dennis, III and Linda Stephens, Raleigh, for plaintiff-appellee.
Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Robert W. Sumner, Raleigh, for defendants-appellants.
MARTIN, Justice.
The sole issue for review is whether, with respect to the work in which he was engaged at the time of his injury, plaintiff was an "employee" of defendant North State Ford Truck Sales (North State) within the meaning of the Workers' Compensation Act. We conclude that he was North State's employee and accordingly affirm the Court of Appeals.
Plaintiff was seriously injured and permanently disabled on 23 July 1984 while instructing defendant North State's employees in the use of Kansas Jack equipment to repair the frames of heavy vehicles. The compensation hearing was limited by stipulation to a determination of plaintiff's employment status. The deputy commissioner received the following essentially uncontroverted evidence:
At the time of the injury, plaintiff was a self-proclaimed "specialist" in the use of Kansas Jack frame-straightening equipment and one of only three or four persons in the region qualified to teach others how to use it. Plaintiff had developed this skill *436 and knowledge while operating his own tractor-trailer repair shop from 1973 to 1983. He used Kansas Jack equipment for frame-straightening jobs and on occasion helped a Kansas Jack field representative to demonstrate the equipment to prospective buyers. In late 1983 plaintiff closed the repair shop and became an independent sales agent for Interstate Marketing Corporation (IMC). Under the arrangement with IMC, plaintiff sold Kansas Jack frame and measuring equipment in a sixteen-county sales territory encompassing parts of Georgia and Tennessee.
For each of his sales, plaintiff was responsible for installing the equipment at the purchaser's place of business and training the purchaser's employees in the use of the equipment. Over the course of his relationship with IMC, plaintiff conducted ten to twelve such training sessions in connection with Kansas Jack sales. He received no salary or benefits from IMC and was paid on a strictly commission basis. On one occasion, IMC hired plaintiff as an "employee" to conduct a Kansas Jack workshop for which he was paid $250 per day. This was the only occasion on which plaintiff conducted a training session that was unconnected to a personal sale.
In July of 1984, defendant North State purchased some secondhand Kansas Jack frame-straightening equipment. Because its employees were not familiar with the equipment, North State contacted the Kansas Jack representative for the North Carolina sales territory and requested the name of a qualified instructor for on-site training. The representative recommended plaintiff for the job. Alan Chapman, North State's body shop manager, then negotiated with plaintiff by telephone. Plaintiff agreed to travel to Raleigh to train North State's employees on the equipment during the week of 23 July 1984. Under the agreement, plaintiff was to receive $250 per day plus expenses, "for as many or as few days as it would take." The instruction could last up to five days, depending on the trainees' progress. Mr. Chapman advised plaintiff that he was to follow the normal work schedule, instructing the trainees between the hours of 7:30 a.m. and 4:30 p.m., with a lunch break from noon until 1:00 p.m. He rejected plaintiff's suggestion that the training continue at night because he did not want to pay plaintiff and the trainees overtime. He assured plaintiff that North State would supply any necessary equipment or assistance.
Plaintiff arrived at North State on the morning of 23 July 1984 in a Kansas Jack panel truck which IMC had made available for his personal use. Plaintiff was not asked to sign an employment application, and no arrangements were made for standard employee benefits or the withholding of taxes. Mr. Chapman had the body shop employees lay the Kansas Jack equipment out on the floor. He told plaintiff he wanted the workers to have "hands-on" training that day and showed plaintiff which trucks to repair during the instruction process.
The evidence diverged somewhat as to the degree of supervision exercised by Mr. Chapman. Plaintiff testified that Mr. Chapman gave him instructions as to how the trainees should be taught. He was present during most of the morning instructional session, and during the lunch break he discussed with plaintiff what had gone on that morning and what he wanted plaintiff to do that afternoon. He then participated to some extent in the afternoon hands-on training by telling the trainees "what to do." Plaintiff further testified that he left it up to Mr. Chapman to determine when his employees were comfortable enough with the equipment to terminate the training. He was prepared to leave early in the week if Mr. Chapman determined that he was no longer needed.
Mr. Chapman testified to the contrary that although he had checked on the trainees' progress several times, he did not attempt to supervise the training in any way. He himself had no knowledge of the equipment and left the methods of instruction entirely to plaintiff's discretion.
Plaintiff's injury occurred during the afternoon hands-on training session when a chain snapped and struck him in the neck. Plaintiff suffered fractured vertebrae, resulting in quadriplegia, and amassed medical *437 bills of approximately $300,000. Defendant North State paid plaintiff $375.56 for one day's work plus travelling expenses. Defendant insurance carrier refused to pay medical expenses or disability compensation.
Based on the foregoing, the deputy commissioner found that plaintiff had an "independent calling" to teach the use of Kansas Jack equipment and that defendant North State had no right of control over plaintiff's teaching methods. He concluded that plaintiff was an independent contractor not subject to the provisions of the Workers' Compensation Act at the time of the injury and dismissed the claim for lack of jurisdiction. The full Commission, with one member dissenting, reversed this determination, finding that North State had retained the right to control the details of plaintiff's work and concluding that plaintiff was North State's employee. A divided panel of the Court of Appeals affirmed. Defendant appealed to this Court pursuant to N.C. G.S. § 7A-30(2).
To be entitled to maintain a proceeding for workers' compensation, the claimant must be, in fact and in law, an employee of the party from whom compensation is claimed. Hicks v. Guilford County, 267 N.C. 364, 148 S.E.2d 240 (1966); Hart v. Motors, 244 N.C. 84, 92 S.E.2d 673 (1956). The issue of whether the employer-employee relationship exists is a jurisdictional one. Lucas v. Stores, 289 N.C. 212, 221 S.E.2d 257 (1976); Askew v. Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965). An independent contractor is not a person included within the terms of the Workers' Compensation Act, and the Industrial Commission has no jurisdiction to apply the Act to a person who is not subject to its provisions. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965).
Findings of jurisdictional fact made by the Industrial Commission are not conclusive, even when supported by competent evidence. It is incumbent upon this Court to review the evidence of record and make independent findings of fact with regard to plaintiff's employment status. Lemmerman v. Williams Oil Co., 318 N.C. 577, 350 S.E.2d 83 (1986); Lucas v. Stores, 289 N.C. 212, 221 S.E.2d 257; Askew v. Tire Co., 264 N.C. 168, 141 S.E.2d 280.
Whether one employed to perform specified work for another is to be regarded as an independent contractor or as an employee within the meaning of the Act is determined by the application of ordinary common law tests. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645; Scott v. Lumber Co., 232 N.C. 162, 59 S.E.2d 425 (1950). An independent contractor is defined at common law as one who exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work. Cooper v. Publishing Co., 258 N.C. 578, 129 S.E.2d 107 (1963); McCraw v. Mills, Inc., 233 N.C. 524, 64 S.E.2d 658 (1951). Where the party for whom the work is being done retains the right to control and direct the manner in which the details of the work are to be executed, however, it is universally held that the relationship of employer and employee is created. Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944); 1C A. Larson, The Law of Workmen's Compensation § 44.00 (1986).
We have on innumerable occasions discussed this distinction, and over the course of the years we have identified the specific factors which are ordinarily indicative of whether or not such control has been retained. See, e.g., Pearson v. Flooring Co., 247 N.C. 434, 101 S.E.2d 301 (1958); Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137.
Having carefully reviewed the testimony and exhibits in this case, we find that the following pertinent factors have been established by the greater weight of the evidence. Each of these factors tends to show that North State retained the right to control the details of plaintiff's work, incident to an employment relationship.
1. North State agreed to pay plaintiff $250 per day plus expenses. Payment of a fixed contract price or lump sum ordinarily indicates that the worker is an independent contractor, Hayes v. Elon *438 College, 224 N.C. 11, 29 S.E.2d 137, while payment by a unit of time, such as an hour, day, or week, is strong evidence that he is an employee, 1C A. Larson, The Law of Workmen's Compensation § 44.33(a); Pearson v. Flooring Co., 247 N.C. 434, 101 S.E.2d 301; Smith v. Paper Co., 226 N.C. 47, 36 S.E.2d 730 (1946).
2. North State assured plaintiff that it would provide all necessary tools, equipment, and assistance for the job. The freedom to employ such assistants as the claimant may think proper indicates contractorship. McCraw v. Mills, Inc., 233 N.C. 524, 64 S.E.2d 658 (painting contractor free to use as many or as few workers as he saw fit, with full control over them as to hiring, firing, wages, hours, times and places); Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137. A lack of this freedom indicates employment. Pearson v. Flooring Co., 247 N.C. 434, 101 S.E.2d 301; Lloyd v. Jenkins Context Co., 46 N.C.App. 817, 266 S.E.2d 35 (1980). Furthermore, when valuable equipment is furnished to the worker, the relationship is almost invariably that of employer and employee. 1C A. Larson, The Law of Workmen's Compensation § 44.34(a).
3. North State required plaintiff to perform his work between the hours of 7:30 a.m. and 4:30 p.m. with a lunch break at noon. This constituted a direct exercise of control. Where the worker himself selects the time of performance, contractorship is indicated. Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137. However, where the worker must conform to a particular schedule and perform his job only during hours when the defendant's employees are available, the relationship is normally one of employment. Pearson v. Flooring Co., 247 N.C. 434, 101 S.E.2d 301; see also Morse v. Curtis, 276 N.C. 371, 172 S.E.2d 495 (1970) (claimant required to perform her supervisory duties during set hours).
4. North State retained the right to discharge plaintiff for any reason. The right to fire is one of the most effective means of control. Lassiter v. Cline, 222 N.C. 271, 22 S.E.2d 558 (1942). An independent contractor is subject to discharge only for cause and not because he adopts one method of work over another. Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137; Lassiter v. Cline, 222 N.C. 271, 22 S.E.2d 558. An employee, on the other hand, may be discharged without cause at any time. See Scott v. Lumber Co., 232 N.C. 162, 59 S.E.2d 425. Where a worker is to be paid by a unit of time, it may be fairly inferred that he has no legal right to remain on the job until it is completed. The employer may discharge him with no obligation other than to pay wages for the units of time already worked. Pearson v. Flooring Co., 247 N.C. 434, 101 S.E.2d 301.
No particular one of these factors is decisive in itself. Each is but a sign which must be considered with all other indicia and circumstances to determine the true status of the parties. Askew v. Tire Co., 264 N.C. 168, 141 S.E.2d 280; Pressley v. Turner, 249 N.C. 102, 105 S.E.2d 289 (1958); Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137. We look to our previous decisions for guidance in the weighing of these factors.
Although there are no two cases which are factually identical in this area of the law, Pearson v. Flooring Co., liberally cited herein, is strikingly similar to the case at bar in many key respects. In that case, defendant Peerless Flooring Company purchased equipment from Moore Dry Kiln Company. Moore recommended claimant Pearson as an experienced mechanic who could supervise the equipment's installation on Peerless's premises. An agreement was reached whereby Peerless would provide workers and equipment and Pearson would supervise the installation. Pearson was to receive $2.25 per hour plus expenses. During the installation, Pearson worked only when Peerless's employees were available, according to Peerless's regular schedule.
In holding that Pearson was Peerless's employee, we found each of the factors that we have enumerated in this case. We conclude that the peculiar combination of factors here weigh just as heavily on the *439 side of employment as in the closely analogous Pearson. Furthermore, we note that the four factors found in this case correspond to the four principal factors generally recognized as demonstrating the right to control details of the work: (1) method of payment; (2) the furnishing of equipment; (3) direct evidence of exercise of control; and (4) the right to fire. See 1C A. Larson, The Law of Workmen's Compensation § 44.00.
Defendants argue that Pearson analogy notwithstanding, plaintiff must be categorized an independent contractor because his experience and expertise with Kansas Jack equipment (1) established an independent calling, business, or occupation as a Kansas Jack instructor, and (2) prevented North State from exercising meaningful supervision over his work. We disagree.
The evidence clearly shows that plaintiff made his living as a salesman of Kansas Jack equipment, not as an instructor. Although he often conducted training sessions incident to a sale, he did not seek work as a "free-lance" instructor, nor did he advertise or hold himself out as such. On only one other occasion had he conducted a training session independent of a personal sale. We find this evidence insufficient to establish an independent calling in this case. See Askew v. Tire Co., 264 N.C. 168, 141 S.E.2d 280 (claimant, a painter of long experience, did not hold himself out as painting contractor and had only once done painting for lump sum); Durham v. McLamb, 59 N.C.App. 165, 296 S.E.2d 3 (1982) (claimant did not advertise his services as a carpenter and did not have a business as a contractor in that trade); Lloyd v. Jenkins Context Co., 46 N.C.App. 817, 266 S.E.2d 35 (although claimant was skilled at his work, he did not have an independent business as a carpenter).
Moreover, the fact that a claimant is skilled in his job and requires very little supervision is not in itself determinative. Durham v. McLamb, 59 N.C.App. 165, 296 S.E.2d 3; Lloyd v. Jenkins Context Co., 46 N.C.App. 817, 266 S.E.2d 35. If the employer has the right of control, it is immaterial whether he actually exercises it. Hinkle v. Lexington, 239 N.C. 105, 79 S.E.2d 220 (1953); Scott v. Lumber Co., 232 N.C. 162, 59 S.E.2d 425. Nonexercise can often be explained by the lack of occasion for supervision of the particular employee, because of his competence and experience. 1C A. Larson, The Law of Workmen's Compensation § 44.32. The fact that plaintiff was a specialist in the use of Kansas Jack equipment and had extensive experience in training others how to use it does not imply that North State lost its right to control plaintiff's conduct and to intervene if his instruction interfered with North State's other operations. Pearson v. Flooring Co., 247 N.C. 434, 101 S.E.2d 301.
We conclude that although plaintiff possessed specialized skill in the use of Kansas Jack equipment, North State retained the right to control the details of plaintiff's work by paying him on a time basis, providing all materials and assistance which he needed, setting his hours of work, and retaining the right to discharge him at any time. An employment relationship therefore existed between plaintiff and North State at the time of plaintiff's injury. The decision of the Court of Appeals is
AFFIRMED.
EXUM, Chief Justice, dissenting.
I respectfully dissent. My review of the evidence, when viewed in light of the controlling authorities, leads me to conclude that plaintiff was an independent contractor at the time of the injury.
The evidence as recited by the majority is, for the most part, fair and complete. I would emphasize the following facts. (1) In the plaintiff's capacity as a seller of Kansas Jack equipment he trained the buyers' employees in the equipment's use. He had done this on at least ten occasions before being injured at North State Ford. (2) Because of his expertise with the equipment he gained a reputation as one of only three or four individuals in the southeast competent to instruct buyers of Kansas Jack truck frame straightening equipment. (3) Plaintiff specified the amount he wanted *440 to be paid per day, and defendant, although believing the figure high, agreed to his terms. (4) Plaintiff specified the time usually necessary to complete the training course and then confined defendant to selecting a period suitable for plaintiff's schedule.
I disagree with the majority's discussion of the evidence with regard to two issues. (1) The majority states that plaintiff retained "the right to discharge [defendant] at any time." I find the evidence unclear on this issue because the record is entirely silent with regard to the right to fire. Thus, the majority simply assumes that this right was retained, while I find such an assumption does not necessarily follow. (2) The majority indicates that plaintiff lacked the freedom to employ assistants he thought necessary to conduct the training course. Once again, the evidence is silent regarding whether plaintiff had such freedom. The evidence merely indicates that whatever materials plaintiff deemed necessary defendant would provide. Defendant thus gave defendant wide latitude to steer whatever course necessary to accomplish the ultimate objective of instructing North State employees regarding the proper method of using Kansas Jack equipment.
The majority correctly notes that the test for distinguishing an independent contractor from an employee centers on whether the party for whom the work is being done retains the right to control and direct the manner in which the details of the work are to be executed. When this right is retained the relationship of employer and employee is created. When it is not, the party performing the task is characterized as an independent contractor. Certain factors are normally assessed to facilitate the application of this test. We enumerated these factors in Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944). According to Hayes, a person is an independent contractor when:
The person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time.
Hayes, 224 N.C. at 16, 29 S.E.2d at 140. As the majority acknowledges, no factor is determinative in itself; rather they cumulatively shed light on the court's ultimate task of determining the extent to which the party for whom the work was performed retained the right to control the details by which it was done.
My review of the factors enumerated in Hayes leads me to conclude that plaintiff was an independent contractor.
Concerning the first Hayes factor, it seems clear that plaintiff was engaged in an independent business. Although characterized as a "salesman," the evidence shows that his job description included training those who purchased equipment. It was plainly because of his reputation as a training specialist that North State contacted him in the first place. Thus, notwithstanding his official designation as a salesman, plaintiff had an independent calling which included instructing others in the use of Kansas Jack equipment.
Regarding whether plaintiff had the independent use of his special skill in conducting the training course, the evidence is somewhat conflicting. The more credible evidence, I believe, is the testimony of Mr. Chapman who stated that because of his lack of familiarity with the Kansas Jack equipment he left the methods of instruction entirely to plaintiff's discretion. This testimony is corroborated by the fact that Mr. Chapman turned over his men to plaintiff for the training course. Although Mr. Chapman instructed plaintiff to conduct "hands-on" training, this does not amount to "control" by defendant, for such an instruction had no bearing on how plaintiff conducted the course in detail. As Professor Larson notes:
*441 An owner who wants to get the work done without becoming an employer is entitled to as much control of the details of the work as is necessary to ensure that he gets the end result from the contractor that he bargained for. In other words, there may be a control of the quality or description of the work itself, as distinguished from control of the person doing it, without going beyond the independent contractor relation.
1C Larson, Workmen's Compensation Law, § 44.20.
The third Hayes factor has two components: a specified piece of work, and the method of compensation. North State engaged plaintiff to perform a specific task; viz., to instruct North State Ford employees how to use Kansas Jack equipment. Plaintiff himself established the method and amount of compensation, $250.00 a day, perhaps because he was unsure whether the course would last four or five days. While, as the majority points out, Professor Larson indicates in his treatise that payment by a unit of time, such as a day, may be indicative of an employment relationship, common experience reveals this is not always the case. Expert witnesses and consultants to businesses, for instance, are normally paid on a daily basis, yet no one, for this reason alone, would characterize them as the employees of the organization paying their daily fee. I believe, in the context of the instant case, plaintiff's decision to demand a specified fee per day evinces the kind of independence normally associated with independent contractors.
Regarding the conditions under which the plaintiff could have been discharged, I have already noted my disagreement with the majority. The record is simply silent on this point. I think that the manner in which plaintiff conducted the course before the accident indicates he would not have been subject to discharge had he selected a different method for conducting the training session. Indeed, the evidence indicates that Mr. Chapman turned the entire training course over to plaintiff, thus giving him complete rein to instruct the North State employees however he saw fit.
The final Hayes factors also tend to suggest that plaintiff was an independent contractor. North State did not employ him regularly. He was entirely free to utilize the resources available at North State. The fact that North State made such resources available, rather than requiring plaintiff to acquire his own, should not be understood as the kind of limitation on his freedom which might otherwise be indicative of an employment relationship.
Finally, plaintiff's duty to conduct the training course during the hours when the North State employees were at work is not, in the context of the task he contracted to perform, sufficient control by North State to justify the conclusion that he was an employee. North State, legitimately, did not want to pay its employees overtime to learn how to use Kansas Jack equipment. Its reasonable request that plaintiff train its employees during regular working hours should not be construed to alter his independent contractor status.
The decision upon which the majority relies most heavily, Pearson v. Peerless Flooring Co., 247 N.C. 434, 101 S.E.2d 301 (1957), differs from the instant case in several important respects. In Pearson the Court relied heavily on the fact that the defendant agreed in a contract with the manufacturer that the person installing the equipment would be defendant's employee. While the Court did not consider this contract dispositive of the issue, it constituted strong evidence that the defendant itself considered plaintiff as its employee. Another way in which Pearson differs from the present case is that the task involved required significantly less skill, and therefore permitted significantly more control, than the task in the instant case. In Pearson the defendant's control over the details of the dry kiln's installation is reflected in the constant supervision defendant exercised, as well as the occasion when the defendant made the plaintiff change the location of a pipeline in the kilns from the location which was called for in the plans and specifications. Finally, the method of payment in Pearson was an hourly wage *442 rather than a per diem compensation. I consider this last difference meaningful because an hourly wage is the kind of compensation most frequently associated with an employment relationship. Payment by the day is not. Because of this, and the other differences noted, I do not believe Pearson controls this case.
It should be acknowledged that distinguishing between an independent contractor and an employee in a given case often gives rise to disagreements between reasonable minds. The opposing opinions at every appeal in the present case illustrate this. My judgment is that the deputy commissioner correctly concluded that plaintiff was an independent contractor, and that the Industrial Commission therefore lacked jurisdiction over his claim. The Court of Appeals should be reversed and the case remanded with instructions that the plaintiff's claim be dismissed.
MEYER and WHICHARD, JJ., join in this dissenting opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334205/ | 443 S.E.2d 406 (1994)
Sherrill S. NORTON, as Personal Representative of the Estate of Jerry W. Norton, Appellant,
v.
OPENING BREAK OF AIKEN, INC., Jimmy Martin, and Jimmy Martin Realty Group, Inc., Respondents.
No. 2166.
Court of Appeals of South Carolina.
Heard March 9, 1994.
Decided April 4, 1994.
Rehearing Denied May 17, 1994.
*407 Robert J. Harte, Aiken, for appellant.
Jean P. Derrick, Lexington, for respondents.
BELL, Judge:
This is an action in negligence. The estate of Jerry Norton sued Opening Break of Aiken, Inc., Jimmy Martin, and Jimmy Martin Realty Group, Inc.,[1] alleging liability for Norton's death from a collision with an intoxicated minor driver who attended an after hours party at Opening Break a few hours before the accident. The circuit court granted summary judgment for Opening Break. Norton appeals. We reverse and remand.
The minor, Christopher Yonce, entered the Opening Break bar the evening of February 8, 1991. Yonce first claimed, but later denied, he purchased beer from Opening Break at that time. Yonce left Opening Break and went to another bar where he purchased and drank four to five beers between 10:30 p.m. and 2:30 a.m. He and three friends then returned to Opening Break for an after hours party for one of Opening Break's employees. While at the party, Yonce drank beer he brought to the party himself. He also drank an alcoholic punch provided by someone at the party. Opening Break neither sold nor furnished alcohol to Yonce during the party.
It is useful to state at the beginning what this appeal is not about. It presents no question of common law liability of a social or business host who furnishes alcohol to his guests. Cf. Garren v. Cummings & McCrady, Inc., 289 S.C. 348, 345 S.E.2d 508 (Ct. App.1986). The defendants hold a license from the State of South Carolina for the on premises sale and consumption of alcohol. As a licensee, their premises are subject to regulation by the State. Similarly, this case *408 does not involve the sale or furnishing of alcohol to a minor. Cf. Steele v. Rogers, 306 S.C. 546, 413 S.E.2d 329 (Ct.App.1992), cert. denied (April 22, 1992). The defendants provided a "safe haven" for underaged drinkers to engage in illegal drinking, but they did not themselves furnish the alcohol. Finally, this appeal does not concern serving alcohol to an adult who is obviously intoxicated. Cf. Christiansen v. Forcier, 285 S.C. 164, 328 S.E.2d 351 (Ct.App.1985).
We are concerned here with 23 S.C.Code Ann.Regs. 7-31 (Supp.1993), which prohibits a business that holds a license issued by the Alcoholic Beverage Control Commission from allowing a person under twenty one years of age to possess or consume alcoholic liquors in or on the licensed premises. Opening Break does not challenge the validity of this regulation.
The question is whether a violation of Reg. 7-31 constitutes negligence per se for purposes of an action in negligence.
The test of determining when a duty created by statute will support an action for negligence is stated in Whitlaw v. Kroger Co., 306 S.C. 51, 53, 410 S.E.2d 251, 252 (1991):
In order to show that the defendant owes him a duty of care arising from a statute, the plaintiff must show two things: (1) that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and (2) that he is a member of the class of persons the statute is intended to protect. If the plaintiff makes this showing, he has proven the first element of a claim for negligence: viz., that the defendant owes him a duty of care. If he then shows that the defendant violated the statute, he has proven the second element of a negligence cause of action: viz., that the defendant, by act or omission, failed to exercise due care. This constitutes proof of negligence per se.
(quoting Rayfield v. South Carolina Dep't of Corrections, 297 S.C. 95, 103, 374 S.E.2d 910, 914 (Ct.App.1988), cert. denied, 298 S.C. 204, 379 S.E.2d 133 (1989)).
Following the reasoning of Whitlaw v. Kroger Co., Norton argues that Reg. 7-31 imposes a duty of care on Opening Break, as a licensee of the Alcoholic Beverage Control Commission, not to allow a person under twenty one years of age to possess or consume alcoholic liquors in or on the licensed premises. Among others, this duty runs to those who would likely be injured by intoxicated underage drinkers. By allowing Yonce to possess and consume alcoholic liquors on its premises, Opening Break breached this duty of care owed to Norton.
Opening Break counters that a mere regulation cannot establish a duty of care; the plaintiff must prove the violation of a statute or ordinance to establish negligence per se. It cites no authority for this proposition. It also contends that Reg. 7-31 is intended to protect only minors like Yonce, not members of the general public like Norton. Both points may be disposed of briefly.
I.
Regulations authorized by the Legislature have the force of law. Tant v. Dan River, Inc., 289 S.C. 325, 345 S.E.2d 495 (1986). Violation of a regulation may constitute negligence per se. See, e.g., Id. (violation of state and federal air pollution regulations supports action for negligence); see also Seals v. Winburn, ___ S.C. ___, 445 S.E.2d 94 (Ct.App.1994) (Davis Adv.Sh. No. 5 at 27) (employer's violation of state and federal regulations prohibiting the employment of children under the age of ten on a farm was negligence per se); Ravan v. Greenville County, ___ S.C. ___, 434 S.E.2d 296 (Ct. App.1993) (approving jury instruction charging that violation of a regulation is negligence per se); Coleman v. Shaw, 281 S.C. 107, 314 S.E.2d 154 (Ct.App.1984) (violation of agency regulation governing swimming pool safety was negligence per se). The law stated in these cases forecloses Opening Break's argument to the contrary.
II.
Although the law does not imply an automatic duty to the public at large whenever a statute is violated, a rule forbidding a licensee of the Alcoholic Beverage Control Commission to facilitate consumption of alcohol by a minor is designed to protect both *409 the minor who consumes the alcohol and those members of the public likely to be harmed by the minor's consumption of that alcohol. See Whitlaw v. Kroger Co., supra. It follows that a third party harmed by the minor's consumption has an action against the licensee who violated the statute. Id.
While Whitlaw dealt with a statute, the same reasoning applies to the violation of the regulation here in question. Undoubtedly one purpose of the regulation is to prevent consumption of alcohol by youthful drinkers so as to protect them from their own immature judgment. However, Whitlaw teaches that such rules have the additional purpose of protecting members of the public likely to be harmed by an underaged drinker. This is especially true where the underaged drinker is an adult. Regulation 7-31 applies not only to minors, but also to drinkers aged eighteen to twenty one. They are sui juris in all other respects. This means they are legally presumed to have adult mental and judgmental capacity. Consequently, they may need less protection from harming themselves than younger drinkers. Yet their drinking still poses a high risk of harm to others besides themselves. It is, in part, to protect those others from harm that laws like Reg. 7-31 exist. Under the rule in Whitlaw, such regulations create a duty of care running from licensees toward this special class of third parties likely to be harmed.
For the reasons stated, the circuit court erred as a matter of law in granting summary judgment. We reverse and remand for trial. Our opinion should not be interpreted as expressing any view on the merits of the case.
REVERSED AND REMANDED.
GOOLSBY and CONNOR, JJ., concur.
NOTES
[1] For convenience, these parties will be called "Opening Break" in this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334376/ | 260 S.E.2d 189 (1979)
W. Lawrence BRANTLEY et al.
v.
William G. KARAS, II, etc., et al.
Record No. 771919.
Supreme Court of Virginia.
November 21, 1979.
*190 John W. Edmonds, III, Richmond, (Russell V. Palmore, Jr., George W. Taylor, Jr., Richmond, Paul C. Kincheloe, Jr., Fairfax, Mays, Valentine, Davenport & Moore, Richmond, on brief), for appellants.
Michael McGettigan, Alexandria, (Murphy, McGettigan, McNally & West, Alexandria, on brief), for appellees.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
I'ANSON, Chief Justice.
This is a chancery proceeding brought by the executors, trustee, and beneficiaries under the will of Nina Mae Karas for a determination of the beneficiaries' interests in a promissory note in which the appellants purchased an interest. On this appeal we consider three issues: whether the appellants, W. Lawrence Brantley and his wife, were holders in due course, whether the appellees provided sufficient evidence to rebut the presumption of equal ownership of the note, and whether the attorney's fees incurred in this suit by the executors are recoverable from the purchasers' interest in the note.
The significant facts in this case are not disputed. Nina Mae Karas and her sister, Mary Ellen Rogers, inherited a tract of land from their parents. Mrs. Karas sold her one-half interest in the land in May 1973, with her husband joining in the conveyance as a grantor. The purchasers executed a promissory note for $96,667, payable "to the order of NINA MAE KARAS and WILLIAM G. KARAS." Under the terms of the note, the purchasers were obligated to pay only the interest on the loan for the first five years; thereafter, they were to begin reducing the principal. The note was placed with a bank for collection. In accordance with the bank's policies, the Karases indorsed the note in blank. Payments on the note were deposited in the Karases' joint account.
On April 9, 1974, Mrs. Karas died. Her will, executed in August 1973, provided that her husband, William G. Karas, Sr., was to receive "all interest monies received in the first five years" after the sale of her one-half interest in the tract. After these five years, she bequeathed "any remaining monies owed for this property" to her husband and her three children, "share and share alike." The inventory and appraisement of the estate filed by the husband, who was appointed executor,[*] listed the entire note of $96,667 as the property of his wife. The state inheritance tax return filed by Karas on May 9, 1974, listed the entire amount of the note as solely an asset of his wife's estate. The federal estate tax return filed on June 17, 1974, listed the note as jointly owned property. Unlike other property listed as jointly owned in the federal tax return, the entire amount of the note, rather than one-half, was listed as her property. In the same tax return, the husband disclosed that he was to receive $24,167 from the note, approximately one-fourth of its face value.
On February 4, 1975, Karas sold his share of the note to Gerald and Jane Pressman for $5,000. Karas informed Gerald Pressman that his share consisted of the interest collected in the five-year period and a portion of the principal equal to that received by the children. On March 21, 1975, the Pressmans sold their interest in the note to W. Lawrence and Beatrice E. Brantley for $32,000. After reading the *191 Karas will, Gerald Pressman concluded that Mr. and Mrs. Karas were co-owners of the note and that her will entitled Karas to one-quarter of his wife's one-half interest. Consequently, the Pressmans warranted to the Brantleys that the Pressmans' interest in the note consisted of a one-half interest in the whole note and not less than a one-quarter interest in the remaining one-half of the note.
Before purchasing the note, Brantley made his own investigation concerning the various parties' interests in the note. He read the Karas will and the appraisal of her estate. He also spoke with Herman Lutz, the attorney for the Karases. According to Lutz, he told Brantley that the note could not be sold, that the real estate whose sale had generated the note had been owned solely by Mrs. Karas, that Karas could not sell him an interest in the note, and that minor children were involved. Brantley also talked with Mary Ellen Rogers, sister of Mrs. Karas. Rogers testified that she informed Brantley that under the will Karas received only the interest monies to be paid during the five-year period and shared equally with the children after that time. Prior to purchasing the note, Brantley called Karas and asked for what price he had sold the note to the Pressmans. Karas refused to tell Brantley the price paid by the Pressmans.
The trial court determined that the Brantleys were not holders in due course because Mr. Brantley's investigation provided him with actual notice of the claims against the instrument. Thus, although the Brantleys were holders of the note, their rights were subject to all defenses. The court also concluded that the Brantleys acquired only whatever interest in the note Karas acquired under his wife's will. The court ordered that the note, an estate asset, be placed for collection in a bank mutually agreeable to the attorneys representing the appellants and appellees. Finally, the court refused to require that the Brantleys pay any portion of the executors' attorney's fees.
The Brantleys claim that they are holders in due course and that their interest is thus not subject to the claims raised here. They further contend that, in addition to the share derived from the will, Karas had a one-half interest in the note because the note listed both Mr. and Mrs. Karas as co-payees. Consequently, they contend that their interest in the note, derived from the sale of Karas' interest, is considerably larger than that recognized by the trial court. The appellees assign as cross-error the trial court's ruling that the Brantleys were not required to pay the executors' attorney's fees in this action.
We first address the Brantleys' contention that they are holders in due course. Under Code § 8.3-302(1), a holder in due course is defined as "a holder who takes the instrument (a) for value; and (b) in good faith; and (c) without notice . . . of any defense against or claim to it on the part of any person." Under Code § 8.1-201(25), a person has notice of a fact if he has actual knowledge of it or he has reason to know it from the facts and circumstances of which he has actual knowledge.
The trial judge, after reviewing the evidence, determined that Mr. Brantley had actual knowledge of the claims against the instrument. In particular, he relied upon the testimony of Lutz and Rogers, who warned Mr. Brantley that the note could not be sold, that Karas was the executor of his wife's estate, that his children had an interest in the note, and that Karas was only entitled to interest due during the first five years and a portion of the principal. Brantley's reading of the will and of the appraisal of the estate filed by Karas also gave him notice of Karas' limited interest in the note.
In a decision handed down prior to the enactment of the Uniform Commercial Code, Goodloe v. Smith, 158 Va. 571, 582, 164 S.E. 379, 382 (1932), we held that a jury's determination that a purchaser had actual knowledge of a claim against a note cannot be disturbed if reasonable persons might differ as to the conclusions of fact established by the evidence. This same rationale *192 applies to factual findings by a judge trying a case without a jury. Having reviewed the evidence, we determine that the trial judge's findings of fact are supported by the evidence.
Having determined that the Brantleys are not holders in due course, we consider the Brantleys' claim that they own a greater interest in the note than that allowed by the trial court. All parties correctly note that tenants in common are presumed to have equal ownership in the absence of proof to the contrary. Swan v. Swan's Ex'r, 136 Va. 496, 519, 117 S.E. 858, 865 (1923) (securities); Smith v. Alderson, 116 Va. 986, 989, 83 S.E. 373, 374 (1914) (land); Jarrett v. Johnson, 11 Gratt. (52 Va.) 327, 333 (1854) (land). While this presumption of equal ownership applies as well to negotiable instruments, a co-payee may rebut this presumption with evidence establishing a contrary division of ownership. The issue of a co-payee's interest in a promissory note is a question of fact to be determined by the evidence. First Federal Savings & Loan Ass'n v. Branch Banking & Trust Co., 282 N.C. 44, 54-55, 191 S.E.2d 683, 690 (1972).
After hearing the evidence, the trial court ruled that the presumption of equal ownership had been rebutted by clear and convincing evidence. In his letter opinion, the trial judge concluded that Karas never claimed a greater interest in the note than that provided by the will and that Karas' appraisal of the estate indicated his total lack of interest in the note. Other facts not mentioned by the trial court support its conclusion that the presumption had been rebutted. Mrs. Karas' will, written three months after the sale of the real estate, indicates that she was the sole owner of the note and that she never intended her husband to have a half-interest in it. Secondly, if Karas had believed that he owned one-half of the $96,667 note, it is improbable that he would have sold his interest in the note for a mere $5,000.
When a party objects to the judgment of a lower court as contrary to the evidence, that party must establish that the judgment is plainly wrong or without evidence to support it. Code § 8.01-680. Since the evidence in the present case supports the trial court's finding that the presumption had been rebutted, we affirm its ruling that the Brantleys acquired only whatever interest was derived by Karas under his wife's will.
We turn now to the appellees' contention that the trial court erred in refusing to allow the attorney's fees incurred by the executors to be paid out of the Brantleys' interest in the promissory note. The trial court's decree provided that the appellees' attorney's fees were to be paid out of the Karas children's interest in the note. The court also ordered William G. Karas, Sr., to pay attorney's fees of $1,000 to the appellees' counsel. The award of attorney's fees against Karas is not an issue in the present case.
We have held that courts should not require a party to contribute to another party's legal fees where the interests of the party whose fund is sought to be charged are antagonistic to the party for whose benefit the suit is prosecuted. Norris v. Barbour, 188 Va. 723, 742, 51 S.E.2d 334, 342 (1949); White v. Thompson, 186 Va. 567, 572, 42 S.E.2d 868, 870 (1947). Since an allowance of attorney's fees would have been violative of this rule, we hold that the trial court did not err in refusing to allow attorney's fees to be paid out of the Brantleys' interest in the promissory note.
For the reasons stated, the decree of the trial court is
Affirmed.
NOTES
[*] Prior to the institution of the present suit, Karas, Sr., was removed as his wife's executor and William G. Karas, II, and Mary Ellen Rogers, who are among the appellees in this case, were named in his place. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1402802/ | 268 Kan. 134 (1999)
991 P.2d 896
In the Matter of DAVID W. CARSON, Respondent.
No. 82,472.
Supreme Court of Kansas.
Opinion filed November 5, 1999.
Edwin A. Van Petten, deputy disciplinary administrator, argued the cause, and Stanton A. Hazlett, disciplinary administrator, was with him on the formal complaint for the petitioner.
John H. Fields, of Kansas City, argued the cause for respondent, and David W. Carson, respondent, argued the cause pro se.
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against David W. Carson, of Kansas City, an attorney admitted to the practice of law in Kansas.
The formal complaint filed against respondent alleged that respondent violated KRPC 1.5(b) (1998 Kan. Ct. R. Annot. 304) (fees) and KRPC 5.3(b) (1998 Kan. Ct. R. Annot. 371) (responsibilities regarding nonlawyer assistants). The complaint was amended at the hearing to include KRPC 1.8(h) (1998 Kan. Ct. R. Annot. 317) (prohibited transactions). The final hearing report included finding a violation of KRPC 8.4(g) (1998 Kan. Ct. R. Annot. 386) (misconduct) had occurred.
A hearing was held on November 13, 1998, before a panel of the Kansas Board for Discipline of Attorneys. Respondent appeared in person and by counsel. The parties did not object to the composition of the panel or its jurisdiction of the matter. The formal complaint against respondent consisted of two cases, Count I, Case No. A6954 and Count II, Case No. A7056. Respondent, by and through counsel, filed an answer to the complaint and generally does not dispute the general facts stated in Count I but asserts no violation of the Kansas Rules of Professional Conduct occurred. Respondent further answered Count II by stating that the error committed was caused by secretarial mistakes or wrongful conduct *135 and that any harm was de minimis and not amounting to a violation of KRPC.
In Count I, the panel recommended the discipline of published censure. In Count II, the panel recommended that respondent be informally admonished pursuant to Rule 203(a)(4) (1998 Kan. Ct. R. Annot. 210). We note this court has no jurisdiction under Rule 211 (1998 Kan. Ct. R. Annot. 233) to consider respondent's appeal on Count II. We, therefore, dismiss this portion of the appeal and proceed to the findings and conclusions entered by the panel concerning Count I, case No. A6954.
"FINDINGS OF FACT
....
"2. Count I Case No. A6954
"a. In June 1996, Lisa Katsantoness retained Respondent to represent her in post divorce child support matters. She changed attorneys after her divorce because she wanted a more aggressive attorney. At a meeting in Respondent's office, Ms. Katsantoness and Respondent agreed to a flat fee of $800 and she signed a promissory note to pay that amount. Respondent sent interrogatories to the ex husband, and Ms. Katsantoness made periodic payments totalling $360 to Respondent. Ms. Katsantoness explained she became frustrated and anxious when it took 8 months before the matter was heard, and by that time her ex husband had another child to support. The delay was due to time needed to answer the interrogatories and opposing counsel's need for an alternate hearing date.
"b. A hearing officer heard the child support matter on February 28, 1997 and promised a decision within 3-4 days. Ms. Katsantoness called Respondent's office several times in March. On March 24, 1997 Ms. Katsantoness talked to Respondent's secretary. The conversation rapidly deteriorated when his secretary refused to accede to Ms. Katsantoness's demands to call the hearing officer for the decision. Respondent then spoke to Ms. Katsantoness himself. The conversation between them was even less pleasant.
"c. By letter dated March 24, 1997, Respondent billed Ms. Katsantoness $460 (the balance due on her account). She called Respondent's office to get an explanation of the $20 difference between her payments and balance, but no one told her about the $20 fee to the clerk of the court that was added to the bill. Also on March 24, 1997, Respondent served Ms. Katsantoness with notice he was withdrawing as her attorney, although he never discussed that matter with her.
"d. While handling the child support matter, Respondent talked to Ms. Katsantoness about her desire to have custody and visitation changed, and Ms. Katsantoness agreed to pay an additional fee for that work, but no fee was agreed upon. Respondent prepared a motion for custody and structured visitation on behalf of Ms. Katsantoness in March, 1997.
*136 "e. Next, Respondent filed an action to collect an $800 fee in Johnson County small claims court. Respondent testified that the increase from $460 to $800 was due to numerous phone calls by Ms. Katsantoness in connection with the support matter, but his ledger makes no such reference. The action was dismissed without prejudice when Respondent failed to appear at hearing. Thereafter, Respondent's firm filed a Wyandotte County limited action against Ms. Katsantoness for the $800 fee.
"f. Ms. Katsantoness complained to the Disciplinary Administrator when the billing dispute began. John O'Connor, of the Wyandotte County bar, investigated the matter; he asked Respondent to stay his collection process until after the investigation was completed. Respondent agreed, but nonetheless his firm tried to garnish the wages of Ms. Katsantoness. The limited action was finally dismissed with prejudice when the parties signed a mutual release and satisfaction. Ms. Katsantoness stated she did not consult independent counsel before signing [the mutual release] although the court judge advised her to do so.
....
"CONCLUSIONS OF LAW
"Count I-Case No. A6954-Katsantoness: KRPC 1.5(b) [(1998 Kan. Ct. R. Annot. 304)] (Fees) requires that the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. Respondent's `open ended' promissory note falls short of compliance with said rule.
"In addition, Respondent utilized his billings in a vengeful, harassing and highly unprofessional manner following a confrontational telephone conference with the client on March 24, 1997. At that point, Ms. Katsantoness had paid $360.00, $20.00 of which had been applied to expenses, with the balance applying toward the original $800.00 promissory note.
"On the same day, Mr. Carson sent a $460.00 demand letter to the client.
"Three days later, on March 27, 1997, Mr. Carson filed an action in Johnson County, Kansas seeking judgment in the amount of $800, all without any communication or explanation to Ms. Katsantoness. Ms. Katsantoness appeared on the designated hearing date, April 22, 1997, but Mr. Carson failed to appear and the case was dismissed without prejudice.
"A short time later, Mr. Carson filed a second collection action against Ms. Katsantoness, this time in Wyandotte County, Kansas. During the general time period, Ms. Katsantoness had filed an ethics complaint against Mr. Carson and the matter was under active investigation by attorney John O'Connor. Mr. O'Connor obtained an agreement from Respondent that further activity in the Wyandotte County collection action would be deferred pending completion of the investigation. Mr. O'Connor confirmed the agreement by letter to Respondent, copied to Ms. Katsantoness. In apparent disregard of the agreement to defer further action and without further notice to Ms. Katsantoness, Respondent obtained *137 a judgment in the Wyandotte County action and instituted a garnishment proceeding to collect the same.
"In January, 1998, the Wyandotte County collection action was dismissed with prejudice pursuant to a Mutual Full Release and Satisfaction agreement, including waiver of malpractice claim, prepared by Respondent's office and which agreement was signed without benefit of counsel by the client. The panel finds a violation of KRPC 1.8(h) in connection with Respondent's obtaining an agreement waiving a malpractice claim where the client was not represented by counsel. However it is noted that the Court which approved the settlement specifically so advised the client of the need for counsel and she admitted knowingly waiving such right.
"In summary, Mr. Carson's conduct representing Ms. Katsantoness adversely reflects on his fitness to practice law, all in violation of KRPC 8.4(g). It should be noted that the panel does not find any evidence of excessive charges by Mr Carson or any particular lack of competence in the services performed.
"It should further be noted that Mr. Carson performed certain additional services not contemplated in the initial engagement involving only child support. During the initial engagement, Mr. Carson also counseled Ms. Katsantoness in regard to child custody matters and even filed a motion in such regard in Johnson County, Kansas, in March, 1997, shortly prior to withdrawing from the representation. There was no evidence as to the reasonable value of such services and no particular reliance thereon by Mr. Carson in connection with the escalation of his fee in March, 1997. In the latter regard, Mr. Carson testified that his increase of fees was occasioned by client's numerous telephone calls to his office, without any mention of the custody matter."
In disciplinary matters, this court has a duty to examine the evidence and determine for itself the judgment to be entered. The report of the disciplinary panel is advisory only and will be given the same dignity as a special verdict by a jury or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony. In re Berg, 264 Kan. 254, 269, 955 P.2d 1240 (1998).
In his brief and argument before this court, respondent raised several objections to the panel's report. He argues that the panel's finding that he violated KRPC 8.4(g) was inappropriate in as much as the formal complaint did not allege such a violation. He claims he was, therefore, deprived of the ability to make a defense.
In the case of In re Berg, we stated that the Disciplinary Administrator need not set forth in the complaint the specific disciplinary *138 rules allegedly violated nor plead specific allegations of misconduct. Instead, the question is whether the facts set out in the complaint in connection with the charge put respondent on notice as to what ethical violations may arise therefrom. See 264 Kan. at 275. It is not incumbent on the Disciplinary Administrator to notify respondent of charges of specific acts of misconduct as long as proper notice is given of the basic factual situation out of which the charges might result. 264 Kan. at 275. See State v. Turner, 217 Kan. 574, 579-80, 538 P.2d 966 (1975).
Thus, the failure to allege a violation of KRPC 8.4(g) does not necessarily preclude the panel from concluding such a violation occurred, based upon the evidence presented. KRPC 8.4(g) prohibits a lawyer from engaging in "any other conduct that adversely reflects on the lawyer's fitness to practice law." This provision relates to fitness and may be violated in cases where other disciplinary rules are also violated. The specific violations charged and found by the evidence may adversely reflect on the lawyer's fitness to practice law. Under the standard of Berg and Turner, the formal complaint in this case was sufficient to provide respondent with notice that he was being accused of conduct which would, in addition to violating KRPC 1.5(b), also raise concerns over his fitness to practice law. As a result, his ability to mount a defense was not prejudiced by the failure of the Deputy Disciplinary Administrator to specifically charge a violation of KRPC 8.4(g).
Respondent also complains that the panel erred in allowing the Deputy Disciplinary Administrator to amend the complaint during the hearing to charge a violation of KRPC 1.8(h). He contends that the amendment was beyond the scope of the facts alleged in the formal complaint and deprived him of an opportunity to make a defense.
The Deputy Disciplinary Administrator asked the panel to consider a violation of KRPC 1.8(h), based on testimony that respondent did not advise Katsantoness that she should seek legal counsel prior to her signing a settlement agreement that absolved him of malpractice. KRPC 1.8(h) states:
"A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently *139 represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith." (1998 Kan. Ct. R. Annot. 317.)
The formal complaint in this matter charges a violation of KRPC 1.5(b) in connection with respondent's billing practices. It makes no mention of the later settlement and release executed by the parties. Thus, the formal complaint, until the amendment, did not put respondent on notice that the release would be subject to inquiry.
However, the disciplinary panel did allow the complaint to be amended to charge a violation of KRPC 1.8(h). Supreme Court Rule 224(b) provides that "[e]xcept as otherwise provided, the Rules of Civil Procedure apply in disciplinary cases." (1998 Kan. Ct. R. Annot. 265). K.S.A. 1998 Supp. 60-215 governs amendments to pleadings under the Rules of Civil Procedure. That statute provides:
"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence." K.S.A. 1998 Supp. 60-215(b).
K.S.A. 1998 Supp. 60-215(b) is applicable in a disciplinary proceeding. We have suggested that amendment of a disciplinary complaint during a hearing is possible. See In re Berg, 264 Kan. at 275 ("[T]he better procedure might have been to ask to amend the allegations to conform to the evidence presented ....). The focus of K.S.A. 1998 Supp. 60-215(b) is on allowing amendments, as long as the defendant is not prejudiced thereby and has a reasonable opportunity to defend against the amendment.
*140 In this case, the knowledge of the possible violation surfaced during the testimony of Katsantoness. The formal motion to amend was made at the close of the Deputy Disciplinary Administrator's case. Respondent's attorney objected on the grounds of surprise. However, although respondent now claims that his ability to prepare a defense was hampered by the change, he did not at that time ask for a continuance to allow more time to prepare. There is no showing that respondent was in any way prejudiced by the amendment. Because respondent failed to show prejudice, the amendment was proper.
Respondent further contends that the facts were insufficient to establish a violation of KRPC 1.5(b). He argues that the fee arrangement he had with Katsantoness complied with the rule. We agree but note that the open-ended factor in the flat fee quote provided very little information to the client of the basis for the final fee.
Attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Seck, 263 Kan. 482, 489, 949 P.2d 1122 (1997). Clear and convincing evidence means
"`the witnesses to a fact must be found to be credible; the facts to which the witness testifies must be distinctly remembered; the details in connection with the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty; and the witnesses must be lacking in confusion as to the facts in issue.'" In re Berg, 264 Kan. at 269 (quoting Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 78, 596 P.2d 816 [1979]).
The evidence itself is not in dispute. Respondent freely admits that rather than charge by the hour, he gives his clients a flat fee with the expectation that if more work than usual is put into the case, more will be charged on the basis of his evaluation of the additional work involved. The only question is whether this arrangement violates KRPC 1.5(b).
KRPC 1.5(b) states:
"When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation." (1998 Kan. Ct. R. Annot. 305.)
*141 The disciplinary panel found that "[r]espondent's `open ended' promissory note falls short of compliance with said rule."
In determining whether respondent's arrangement violated KRPC 1.5(b), an examination of the Kansas Comment to the rule is helpful. The Comment states:
"When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee. In a new clientlawyer relationship, however, an understanding as to the fee should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, or to identify the factors that may be taken into account in finally fixing the fee. When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding. Furnishing the client with a simple memorandum or a copy of the lawyer's customary fee schedule is sufficient if the basis or rate of the fee is set forth." (1998 Kan. Ct. R. Annot. 306.)
The panel seemed to have trouble with the way respondent set his fee in the Katsantoness case. Specifically, the panel seemed troubled that the flat fee quoted was not a flat fee but, instead, could be raised based solely on the judgment of respondent as to how much work he had done on the case. We also find this troubling but insufficient to establish a violation of KRPC 1.5(b).
This court has decided two cases involving violations of KRPC 1.5(b). See In re Barta, 265 Kan. 762, 962 P.2d 532 (1998); In re Phillips, 260 Kan. 909, 925 P.2d 435 (1996). In both Barta and Phillips, there was no discussion between the attorneys and their clients as to what the fees might be, in clear violation of KRPC 1.5(b). As a result, these two cases are of little value in analyzing the situation at hand, where respondent clearly set out his flat fee but then also provided that he might charge more. The closest fact pattern is in Phillips, where the client paid the lawyer $700 to represent her. However, there was no agreement between the lawyer and the client as to how the fee was to be determined.
The problem with respondent's fee setting is not that it is a flat fee, as such would obviously be within the rule. Rather, the problem is that respondent has reserved the right to set a fee higher *142 than the flat fee whenever, in his estimation, the time spent on the case is more than usual. This information does little to inform the client of the basis of the fee. On the other hand, it does not appear that KRPC 1.5(b) requires that the exact basis for every charge be detailed. Rather, the rule states that it is sufficient "to identify the factors that may be taken into account in finally fixing the fee." Arguably, respondent identified the factors which would be taken into account, i.e., $800, with more or less charged depending on his professional judgment. We conclude that a violation of KRPC 1.5(b) has not been established by clear and convincing evidence.
Respondent argues that the evidence was insufficient to establish a violation of KRPC 1.8(h). The panel found that respondent had violated this rule by failing to inform Katsantoness to seek counsel before signing the release agreement regarding the attorney fees.
KRPC 1.8(h) states:
"A lawyer shall not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement, or settle a claim for such liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith." (1998 Kan. Ct. R. Annot. 317.)
Although respondent noted that he was not present when the release was signed, he conceded that he was a party to the release. Further, the release unquestionably provides that it releases respondent from "any claim or counter-claim [Katsantoness] may have against [respondent] of any nature or kind whatsoever including but not limited to legal malpractice, malicious prosecution or abuse of process." (Emphasis added.)
Respondent, however, argued that his activity did not fit within the plain language of the rule. He noted that at the time the release was made, Katsantoness was no longer a client of his and, therefore, he could not have violated the first part of KRPC 1.8(h), making an agreement prospectively limiting the lawyer's liability to a client for malpractice. He also argued that because Katsantoness had not asserted a claim for malpractice at the time the release was signed, he could not have violated the second part of KRPC 1.8(h), settling a claim for malpractice liability with an unrepresented client or *143 former client without first advising that person in writing that independent representation is appropriate in connection therewith. He further noted that the release, whether or not it mentioned legal malpractice, would have had the effect of prohibiting any potential malpractice claim, as a malpractice claim would be a compulsory counterclaim to respondent's fee action.
Respondent's technical arguments missed the point. Respondent is guilty of a violation of the second part of KRPC 1.8(h), that is, settling a claim for malpractice liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate in connection therewith. It does not matter that no actual claim existed at that point. In settling the matter, respondent waived any potential claim for malpractice liability. Under such circumstances, the lawyer has a duty to inform the former client that independent representation is advisable. The facts are sufficient to show a violation of KRPC 1.8(h).
Respondent argues that the facts are insufficient to establish a violation of KRPC 8.4(g). As noted above, KRPC 8.4(g) prohibits conduct which adversely reflects on the lawyer's fitness to practice law.
In finding a KRPC 8.4(g) violation, the panel focused on respondent's conduct as a whole. Respondent, however, disagreed with many of the panel's conclusions. Determining whether respondent's conduct violated KRPC 8.4(g), requires an analysis of the panel's findings.
First, the panel concluded that respondent had failed to communicate the basis of his fees. As discussed above, insufficient clear and convincing evidence exists to establish a violation of KRPC 1.5(b).
Second, the panel concluded that respondent had utilized his billings in a vengeful, harassing, and unprofessional manner. Respondent argued that this conclusion was not supported by the evidence. However, the evidence shows that immediately after a telephone confrontation with the client, respondent added a considerable sum to her bill. Even though the panel found the total *144 bill not to be unreasonable, the timing of the additional charge is suspect and does, in fact, adversely reflect on respondent.
Third, the panel found that respondent had breached an agreement with the Disciplinary Administrator's office in that he agreed not to proceed with his collection case until the disciplinary investigation was completed, then reneged on the agreement. However, this finding is not supported by the evidence. Although the panel specifically found that such an agreement existed, and further specifically found that the Disciplinary Administrator's office confirmed the agreement by letter to respondent, there is nothing in the record to establish this. The only testimony regarding such an agreement came from Katsantoness who testified that it was her understanding from speaking to the investigator that he had reached such an agreement with respondent and sent respondent a letter to that effect. She stated that she had received a copy of the letter which thanked respondent for continuing the matter but did not mention the date to which the matter was continued. The letter itself was not introduced nor did any person from the Disciplinary Administrator's office testify as to the agreement or what the agreement provided. Thus, the evidence fails to establish that respondent violated the agreement in garnishing Katsantoness some 5 months after the date of the letter.
Finally, the panel concluded that respondent had violated Rule 1.8(h) in his actions with regard to the settlement agreement. As noted above, respondent did indeed do so.
While we are concerned with respondent's increase of his fee following a heated exchange with his client, we are not convinced that the panel's conclusion that respondent violated KRPC 8.4(g) is satisfied by clear and convincing evidence.
Respondent finally argues that the recommended discipline of published censure is too harsh. He argues that at most, his conduct deserves only an informal admonition.
The panel found the following with regard to aggravating and mitigating circumstances:
"MITIGATION/AGGRAVATION
"The panel finds the following factors in aggravation applicable to this matter:
*145 "(a) prior disciplinary recordRespondent was censured for one matter and admonished for another in January 1988; he was again disciplined 1993 concerning a 1983 loan;
"(d) multiple offensesthere are two counts herein;
"(g) refusal to acknowledge wrongful nature of conductRespondent has not admitted any wrongdoing in billing Ms. Katsantoness;
"(h) both complainants were in highly emotional legal situations where they needed counsel to represent their best interests;
"(i) substantial experience in the practice of lawas Respondent stated, he has [engaged in the] practice of law for more than 50 years.
"The panel finds the following factors in mitigation applicable to this matter:
"(d) timely good faith effort to ... rectify consequences of misconductRespondent promptly prepared an Order Nunc Pro Tunc once the error in the journal entry visitation dates was discovered;
"(g) previous good character and reputation in the community ...Former Governor John Anderson testified in support of Respondent's honesty and truthfulness; he believes Respondent is an aggressive, but ethical attorney.
"(m) remoteness of prior offensesRespondent['s] disciplinary record involves matters more than ten years ago."
We have considered the findings and conclusions of the panel and with the exceptions noted in this opinion, adopt such findings and conclusions supported by clear and convincing evidence. We recognize that the alleged violation of KRPC 1.5(b), relating to respondent's fee charged, is not established by clear and convincing evidence. Nor is the panel's conclusion that respondent violated KRPC 8.4(g) or breached an agreement with the Disciplinary Administrator's office supported by clear and convincing evidence. However, respondent's increase of his fee following a heated exchange with his client and his violation of KRPC 1.8(h), together with matters found in aggravation and mitigation, warrant imposition of the recommended sanction. On the whole record, we agree with the recommended sanction by the panel.
IT IS THEREFORE ORDERED that David W. Carson receive published censure.
IT IS FURTHER ORDERED that this order be published in the official Kansas Reports and that the costs be assessed to the respondent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263249/ | 893 A.2d 161 (2006)
Renee BENDER, D.O. and Scott Epstein, D.O., Petitioners
v.
PENNSYLVANIA INSURANCE DEPARTMENT, Medical Care Available and Reduction of Error Fund, Respondent.
Commonwealth Court of Pennsylvania.
Argued November 14, 2005.
Decided February 15, 2006.
Christopher A. Lewis, Philadelphia, for petitioners.
Zella Smith Anderson, Dept. Counsel, Harrisburg, for respondent.
BEFORE: COLINS, President Judge, and LEADBETTER, Judge, and McCLOSKEY, Senior Judge.
OPINION BY President Judge COLINS.
This case involves a petition for review from an order of the Insurance Department (Department) denying first dollar indemnity and cost of defense to Drs. Renee Bender, D.O. and Scott Epstein, D.O. (Doctors) under the Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. § 1303.101 et seq.[1] The Insurance Commissioner affirmed and we would affirm the Insurance Commissioner.
*162 The facts are undisputed. The Doctors were at all relevant times licensed to practice osteopathic medicine in Pennsylvania and were participating providers under what was formerly known as the CAT Fund and its successor the MCARE Fund.
On January 6, 1998, a medical malpractice claim against Parkview Hospital (Parkview), the attending physician, and Vanguard OB/GYN Associates, P.C., was filed by Rosalyn Rios (Rios). The claim alleged negligence in the treatment and care of Rios regarding the birth of her child, who was dead at the time of delivery on January 16, 1996. Prior to the birth, Rios had been seen and treated by the Doctors in the present case. Four years after the death of the child, Rios sought to amend the complaint to include the Doctors. The motion was denied because the statute of limitations period had expired. Rios was successful in the medical malpractice action and received a verdict of $650,000.00.
The balance of the verdict was divided among the three named defendants and their insurers. Parkview's insurance paid its primary limit of $300,000.00 plus $33,333.55 in delay damages and post-judgment interest. The MCARE Fund paid $155,000.00 plus $17,222.00 in delay damages and post-judgment interest. The remaining $144,445.00 was paid by Vanguard's insurer.
On October 6, 2003, Parkview filed a complaint seeking $333,333.55 in indemnification from the Doctors. The Doctors' respective primary insurers forwarded the complaint to the MCARE Fund and requested coverage for the Doctors. The MCARE Fund denied the request on January 26, 2004, stating that coverage is for malpractice actions, but not for indemnification actions.
The sole issue before this Court is whether the language of the MCARE statute entitles the Doctors to first dollar indemnity and cost of defense coverage in an indemnification action that is separate from the underlying malpractice action, to which the doctors were not a party. On issues of statutory interpretation this Court's scope of review is plenary, and our standard of review is de novo. Medical Shoppe, Ltd. v. Wayne Memorial Hospital, 866 A.2d 455 (Pa.Cmwlth.2005). We affirm the determination of the Insurance Commissioner.
Section 715(a) of the MCARE Act states in pertinent part:
If a medical professional liability claim against a health care provider who was required to participate in the [MCARE Fund], is made more than four years after the breach of the contract or tort occurred and if the claim is filed within the applicable statute of limitations, the claim shall be defended by the department if the department received a written request for indemnity and defense within 180 days of the date on which notice of the claim is first given to the participating health care provider or its insurer. 40 P.S. § 1303.715(a).
Both parties assert that the language of the statute is unambiguous. Nevertheless, the parties reach differing conclusions about what that language means. On the one hand, the Doctors argue that the statute does not preclude indemnification actions related to professional liability claims against healthcare providers. On the other hand, the Insurance Department argues that the "medical professional liability claim" language is essential to determining precisely the kind of claim that is covered, namely, malpractice actions alone. Additionally, both parties summon a parade of horribles to dissuade the Court from adopting the other's interpretation. The Doctors claim that if they are denied coverage, *163 then all primarily liable doctors will also be denied coverage and that affordable health care will flee the Commonwealth. The Insurance Department counters that if the Doctors are covered, then rates will sky rocket due to the huge number of similar cases the Fund would have to cover.
Despite the parties' public policy concerns, the Court's decision is based squarely on well-established principles of statutory interpretation. "The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions." 1 Pa.C.S. § 1921(a). The Court agrees with the parties that the language of the statute is unambiguous. We also agree with the Insurance Department that our decision turns on interpreting the phrase, "medical professional liability claim." Fortunately, the MCARE Act provides a definition for the phrase: "`Medical professional liability claim.' Any claim seeking the recovery of damages or loss from a health care provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of health care services which were or should have been provided." Section 103, 40 P.S. § 1303.103. Both the definition and the context of "medical professional liability claim" in section 715(a) most plainly indicate medical malpractice actions.
The Doctors argue that the phrases, "arising out of" and "breach of contract," in the definition militate in favor of their broader interpretation. (Brief for Petitioners, p. 12.) However, we are unable to identify any tort or breach of contract between the Doctors and Parkview arising from the furnishing of health care services. What we do see is an indemnification claim between two health care providers. That this indemnification claim, which is tangentially related to the Rios malpractice action, does not confer MCARE Fund coverage on the Doctors automatically. To be sure, a tort did arise from health care services provided, but those services were provided to Rios by health care providers including Parkview and the Doctors. That tort was litigated in the malpractice action by Rios against Parkview and the other defendants and was properly covered by the MCARE Act. The malpractice action is distinct from the current indemnification action because the harm suffered was fundamentally different in nature, the harm was suffered by Rios, not Parkview, and the Doctors were simply not defendants in the malpractice action.
The Court notes, as do the Doctors, that the same elements of negligence that were proven in the malpractice action must again be proven in the indemnification action. However, unlike the Doctors, we see this as further evidence that the proceedings are separate in nature. If the indemnification and malpractice actions were truly part of the same "medical professional liability claim," then the finding of negligence ought to control for both. And yet, neither collateral estoppel nor res judicata could properly apply here. To the extent that the Doctors are able to reasonably argue that they ought to be covered by the MCARE Fund, it is only by reference to the Rios malpractice action. Yet, as we have stated already, the malpractice action was separate and distinct from this action and was, in fact, covered by the MCARE Fund. This is a clear case of indemnification, not one of subrogation. Therefore, we conclude that to interpret the statute as the Doctors wish would be to strain the plain meaning of "medical professional liability claim."
It is because different parties are involved and a different harm is complained of that we must conclude that the indemnification *164 action is distinct from the malpractice action. To do otherwise would be tantamount to the Court writing indemnification actions into the statute wherever they are related to malpractice judgments. Nevertheless, we lament that the Doctors are not covered here, despite the fact that they would have been covered if included in the malpractice action. It is through no fault of the Doctors that they find themselves outside the coverage of the MCARE Act. In reaching this conclusion, we are mindful of our duties when interpreting the law. "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b).
The MCARE Act, in the opinion of this Court, is inadequate legislation because it requires us to reach the present result. However, such matters are for the legislature to address. The Court may not rewrite a statute because we think it unwise from a public policy perspective. The legislature neither provided coverage for indemnification actions through the MCARE Fund, nor did it anywhere express an intention to do so.[2]
Accordingly, the order of the Insurance Commissioner is affirmed.
Judge LEADBETTER dissents.
ORDER
AND NOW, this 15th day of February 2006, the order of the Commissioner of the Commonwealth of Pennsylvania Department of Insurance is AFFIRMED.
NOTES
[1] Act of March 20, 2002, P.L. 154, as amended.
[2] For an excellent overview of the history and purposes of the predecessor to the MCARE Act, the CAT Fund, see Justice Newman's opinion in Milton S. Hershey Medical Center of the Pennsylvania State University v. Medical Professional Liability Catastrophe Loss Fund, 573 Pa. 74, 821 A.2d 1205 (2003). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334576/ | 146 Ga. App. 604 (1978)
247 S.E.2d 147
FAULKNER
v.
THE STATE.
55618.
Court of Appeals of Georgia.
Argued April 3, 1978.
Decided June 22, 1978.
Rehearing Denied July 10, 1978.
Spence & Knighton, Judson R. Knighton, William S. Daugherty, for appellant.
Herbert A. Rivers, Solicitor, Ray B. Gary, Jr., Assistant Solicitor, for appellee.
BANKE, Judge.
The appellant, Frances L. Faulkner, was convicted of the misdemeanor of leaving the scene of an accident which occurred on February 2, 1977. Her motion for new trial on the general and special grounds was denied. She now appeals her conviction.
1. At the onset, the court notes that because of Rule 14 (e) of the Court of Appeals, superseding prior law to the contrary, it has jurisdiction to consider all enumerations raised by the appellant, including those which were grounds for her unappealed and overruled motion for new *605 trial. See McFarland v. State, 137 Ga. App. 354 (1) (223 SE2d 739) (1976).
2. The affidavit on which the accusation charging the appellant with leaving the scene of an accident was based stated only that she had committed a misdemeanor. At trial, the appellant moved to quash the accusation on the ground that the accusation was more broad than the affidavit on which it was based. We rule that it was error for the trial judge to overrule the appellant's motion to quash the accusation. Its supporting affidavit named only the class of crime, and not the offense, with which the appellant was charged. See Code § 27-103; Code Ann. § 27-103.1 (Ga. L. 1964, p. 3216, Section 12 (b)).
Code § 27-103, which has been in force without revision since its enactment by Ga. L. 1865-1866, p. 235, reads as follows: "An affidavit made, or warrant issued, for the arrest of an offender against the penal laws shall state, as nearly as practicable, the following facts, to wit: The offense, the county in which the same was committed, and the time when committed ..." Nevertheless, in its 1899 decision of Williams v. State, 107 Ga. 693 (1) (33 SE 641) (1899), the Supreme Court ruled that "[a]n affidavit which charges the accused simply with the offense of committing a misdemeanor, at a certain time and in a certain county, is sufficient to support an accusation in the county court of such county, charging the accused specifically with selling liquors, and also with contracting to sell, taking orders for, and soliciting the sale of such liquors."
The passage of Ga. L. 1962, pp. 668, 669, revising Code Ann. §§ 27-104 and 27-105, and enacting Code Ann. § 27-103.1, cast doubt on the Williams decision. The two revised Code sections consisted of forms to be followed in preparing affidavits and warrants for arrests. Prior to 1962 "substantial compliance" with these forms had been sufficient, but that language was omitted in the 1962 Act. New Code Ann. § 27-103.1 listed certain information which was to be included in the affidavit in addition to that information required by section 27-103. Thus, Judge Eberhardt, writing for this court in Lovett v. State, 111 Ga. App. 295 (141 SE2d 595) (1965) concluded that with the passage of the 1962 Act the statutory basis for the *606 Williams decision was eliminated with the result that Williams v. State, supra, was no longer controlling precedent.
The legislature, however, again revised sections 27-104 and 27-105 in Ga. L. 1970, pp. 584, 585, by reinserting the substantial compliance standard. Section 27-103.1 was left intact and remains so to this date. Notwithstanding the relaxation of the necessity for strict compliance with the statutory forms, we find that the 1962 enactment of section 27-103.1 still mandates the conclusion that an accusation supported only by an affidavit charging the commission of a "misdemeanor" and not naming the specific offense is legally insufficient and that Williams v. State, supra, continues to be noncontrolling precedent. We refer specifically to the last sentence in section 27-103.1 which provides that: "It is the intent of these requirements that the defendant shall be informed of the specific charge against him and of all basic pertinent particulars pertaining thereto," as supporting our decision.
In reaching this decision we have also examined the record in our recent decision of Rowles v. State, 143 Ga. App. 553 (239 SE2d 164) (1977) and have determined that it was based on an entirely different factual situation from that in the case sub judice. The Rowles decision also involved an appeal from the State Court of Cobb County.
In Rowles, a standard printed form containing the affidavit on the top half of the page and the accusation on the bottom half of the page[1] was used. The word "misdemeanor" was pre-printed into the space where the offense with which the defendant was charged should have been filled in. The same standard form was used in this case. The critical difference in the two cases is that in Rowles a legally sufficient affidavit for arrest had been previously prepared and the warrant for the defendant's arrest was issued on the basis of that affidavit. The affidavit for arrest, along with the arrest warrant, *607 provided support for the accusation, thereby rendering the "misdemeanor" affidavit merely surplusage. It was in recognition of these facts that the court ruled in Rowles that the affidavit charging the accused "... with the offense of committing a misdemeanor, at a certain time and in a certain county ..." was sufficient and not in violation of "the law establishing the State Court of Cobb County which requires an affidavit to set forth plainly the offense charged."
No affidavit or warrant for arrest was included in the record of this case, but because of the inadvertent omission of the facts limiting our decision in Rowles that decision appears to uphold the trial judge's denial of the appellant's motion to quash the accusation. The court takes this opportunity to announce expressly that Rowles v. State, supra, si inapplicable in all factual situations, such as that presented in this case, where no affidavit clearly stating the offense with which the defendant is charged supports the accusation. The appellant's conviction of the offense of leaving the scene of an accident is accordingly reversed. Lovett v. State, 111 Ga. App. 295, supra.
3. Notwithstanding our reversal of the conviction in Division 2, we feel it is necessary to address the following enumerations of error raised by the appellant.
(a) The appellant contends that she was prejudiced by the fact that the affidavit went out to the jury room without the jury being instructed that it was not evidence in the case. The judge did so instruct the jury with regard to the accusation. While, practically, we cannot see where any harm resulted to the appellant because of this omission, in the future it would be better practice for the judge to include by name both the affidavit and accusation in his cautionary instructions. This, of course, presupposes that Cobb County, after conforming the affidavit to this decision, continues to use a combined affidavit and accusation standard form.
(b) The appellant has also alleged that the structure of the preprinted jury verdict form was impermissibly suggestive of guilt as it read: "We, the jury, find the defendant [blank] guilty." The jury was instructed to circle the word "guilty" or to insert the word "not" into the *608 blank, depending on the verdict they reached. The court recommends that the jury verdict form be changed to read: "We, the jury, find the defendant (guilty) (not guilty)." The judge could then instruct the jury to cross out the inappropriate verdict.
Judgment reversed. Deen, P. J., and Smith, J., concur.
NOTES
[1] The affidavit refers to the "facts contained in the within and foregoing accusation" whereas the accusation actually follows the affidavit on the page. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645996/ | 9 So.3d 591 (2007)
EX PARTE DONALD NEWTON.
No. CR-06-1379.
Court of Criminal Appeals of Alabama.
May 22, 2007.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Mandamus petition denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276177/ | 56 Cal.Rptr.3d 558 (2007)
149 Cal.App.4th 422
The PEOPLE ex rel. Edmund G. BROWN, Jr., as Attorney General, etc. et al., Plaintiffs and Appellants,
v.
TEHAMA COUNTY BOARD OF SUPERVISORS et al., Defendants and Appellants.
No. C049048.
Court of Appeal of California, Third District.
March 16, 2007.
As Modified April 11, 2007.
*561 Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Tom Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, Richard M. Thalhammer and Ellyn S. Levinson, Deputies Attorney General for Plaintiffs and Appellants.
William James Murphy, County Counsel, Arthur J. Wylene, Deputy County Counsel, for' Defendants and Appellants Tehama County Board of Supervisors, George Robson, and County of Tehama.
Kerr & Wagstaffe, James M. Wagstaffe, Michael von Loewenfeldt, San Francisco, and Emilia Mayorga, for Defendant and Appellant KAKE.
ROBIE, J.
In this action, the People of the State of California, acting through the Attorney General, succeeded in obtaining an injunction requiring the Tehama County Board of Supervisors to apply the provisions of the Subdivision Map Act (Gov.Code,[1] § 66410 et seq.) to a lot line adjustment on property owned by defendant KAKE, LLC (KAKE). The trial court then awarded the Attorney General $173,450 in attorney fees against the county defendants[2] under section 1021.5 of the Code of Civil Procedure, which is the codification of the private attorney general doctrine of attorney fee recovery.
On appeal from the judgment, KAKE and the county defendants contend the lot line adjustment was exempt from the Subdivision Map Act because it did not create a greater number of parcels than previously existed, and the trial court erred in concluding otherwise.
On appeal from the award of attorney fees, the county defendants and the People both contend the trial court erred in basing its award under Code of Civil Procedure section 1021.5 on the conduct of the county defendants' former attorney during the litigation. We agree. We also agree with the county defendants, however, that where (as here) the plaintiffs are the People of the State of California, acting through the Attorney General to enforce the laws of the state, an award of attorney fees under Code of Civil Procedure section 1021.5 in favor of the People is improper. *562 Accordingly, we will reverse the award of attorney fees against the county defendants.
FACTUAL AND PROCEDURAL BACKGROUND
KAKE owns approximately 3,300 acres in Tehama County known as Burr Valley Estates. Since 1971, the property has been subject to a Williamson Act contract with the county.
"The Williamson Act establishes a mechanism for saving agricultural land by allowing counties to create agricultural preserves and then to enter into contracts with landowners within those preserves. (Gov.Code, § 51200 et seq.) A Williamson Act contract obligates the landowner to maintain the land as agricultural for 10 or more years, with resulting tax benefits. (Id., §§ 51240-51244.) Absent contrary action, each year the contract renews for an additional year, so that the use restrictions are always in place for the next nine to 10 years. (Id., § 51244.)" (Friends of East Willits Valley v. County of Mendocino (2002) 101 Cal.App.4th 191, 195, 123 Cal.Rptr.2d 708.)
In November 1998, KAKE applied for a lot line adjustment with respect to Burr Valley Estates (LLA 98-46). At that time, subdivision (d) of section 66412 (section 66412(d)) provided that the Subdivision Map Act did not apply to "[a] lot line adjustment between two or more existing adjacent parcels, where the land taken from one parcel is added to an adjacent parcel, and where a greater number of parcels than originally existed is not thereby created...."
Tehama County planning director George Robson approved KAKE's lot line adjustment after determining it did not create any additional parcels. The Tehama County Board of Supervisors did not review the lot line adjustment or make any findings prior to Robson's approval.
Initially, documents were recorded showing 32 parcels resulting from the lot line adjustment. Ultimately, however, amended documents were recorded in October 1999 showing 29 resulting parcels.
In May 2001, the Attorney General, the secretary of the state Resources Agency, and the director of the Department of Conservation commenced this action on behalf of the People of the State of California (the People) by filing a complaint against the board of supervisors, Robson, and KAKE (jointly defendants), alleging violations of the Subdivision Map Act and the Williamson Act and seeking specific performance, injunctive relief, and declaratory relief. The People later joined the County of Tehama as a defendant.
Ultimately, the People filed a third amended complaint that alleged three causes of action, only one of which (the second) is at issue here. The People alleged KAKE's property consisted of only 24 parcels before the lot line adjustment. Thus, in the People's view, the adjustment created a greater number of parcels than originally existed and was therefore subject to the Subdivision Map Act. The People alleged defendants had divided the property in violation of the Subdivision Map Act because, among other things, the board of supervisors did not "make the findings required by section 66474.4 specific to lands covered by Williamson Act contracts." Elsewhere in the complaint, the People also asserted that even if LLA 98-46 did not create any additional parcels, the board of supervisors was required by "section 51257 of the Williamson Act [to make] certain specified findings ... regarding agricultural compatibility because the property is enrolled in a Williamson Act contract." The People sought an injunction to prevent the county from issuing *563 development permits for any lots created by LLA 98-46 until the provisions of the Williamson Act and the Subdivision Map Act were met.
In May 2002; Robson filed a motion for summary adjudication against the state Resources Agency on the first and second causes of action. The motion was subsequently treated as having been filed on behalf of all the county defendants against all plaintiffs. The trial court heard that motion on September 27, 2002, and entered its order denying the motion on December 30, 2002.
Meanwhile, in October 2002, KAKE filed its own motion for summary judgment or summary adjudication of the second cause of action.[3] KAKE argued there was no violation of the Subdivision Map Act because LLA 98-46 did not result in the creation of any additional parcels. In KAKE's view, the property consisted of at least 32 parcels before the lot line adjustment, and thus the adjustment actually reduced the number of parcels to 29. KAKE also argued that section 51257 of the Williamson Act does not apply to lot line adjustments within the boundaries of contracted lands where the resulting lots are at least 40 acres in size.
In January 2003, the People filed a cross-motion for summary adjudication of the second cause of action. The People contended findings were required under section 66474.4 of the Subdivision Map Act because LLA 98-46 did create additional parcels, and even if no additional parcels were created, findings were still required under section 51257 of the Williamson Act.
The court heard both motions in May 2003, and on June 16, 2003, the court entered its order granting the People's motion and denying KAKE's motion. The court concluded that "at the time KAKE applied for a `lot line adjustment' to create 29 parcels out of its 3,300 acres, the property then consisted of only two ... or, at most, four . . . preexisting parcels" and therefore it was necessary for KAKE to submit a parcel map to the board of supervisors and for "the Board to find that the proposed division is compatible with the Williamson Act." In essence, the trial court concluded KAKE's division of its property was subject to the Subdivision Map Act. The court also rejected KAKE's argument that the action was barred by the statute of limitations in section 66499.37 of the Subdivision Map Act.
KAKE attempted to appeal from the order because it resolved all claims in the action against KAKE, but this court dismissed the appeal in December 2003 as being from a nonappealable order.
The trial court subsequently granted the People's motion for summary adjudication of the third cause of action and the county defendants' motion for judgment on the pleadings as to the first cause of action. Thereafter, in December 2004, the court entered judgment consistent with its earlier rulings. In pertinent part, that judgment requires the county defendants "to make such findings as may be required under the Williamson Act and Subdivision Map Act in regard to subdivisions of five or more parcels" and prohibits KAKE "from offering for sale any of the lots created by LLA 98-46 until the provisions of the Williamson Act and the Subdivision Map Act pertaining to subdivisions of five or more parcels are met."
The People then filed a motion for attorney fees under Code of Civil Procedure *564 section 1021.5, seeking over $500,000 in fees from the county defendants.[4] While that motion was pending, KAKE and the county defendants filed timely notices of appeal from the judgment. Subsequently, in May 2005, the court granted the People's motion and ordered the county defendants to pay $1.73,450 in attorney fees. The county defendants filed a timely notice of appeal from that order, and the People filed a timely notice of cross-appeal.[5]
DISCUSSION
I
KAKE's And The County Defendants' Appeals From The Judgment
A
Statute Of Limitations
In its opposition to the People's motion for summary adjudication, KAKE contended that to the extent the People's second cause of action was premised on an alleged violation of the Subdivision Map Act, that cause of action was time-barred by the statute of limitations in section 66499.37.[6] In pertinent part, that statute provides as follows: "Any action or proceeding to attack, review, set aside, void or annul the decision of an advisory agency, appeal board or legislative body concerning a subdivision, or of any of the proceedings, acts or determinations taken, done or made prior to such decision, or to determine the reasonableness, legality or validity of any condition attached thereto, shall not be maintained by any person unless such action or proceeding is commenced and service of summons effected within 90 days after the date of such decision. Thereafter all persons are barred from any such action or proceeding or any defense of invalidity or unreasonableness of such decision or of such proceedings, acts or determinations."
KAKE contended the People's claim of a violation of the Subdivision Map Act was time-barred by section 66499.37 because whatever the date of decision, it was no later than October 27, 1999, when the amended lot line adjustment was recorded, and the People did not commence their action until May 15, 2001, over a year and one-half later.
The trial court concluded section 66499.37 did not apply because the People's action was "not an action for administrative review to attack, annul, or review a decision of defendant Robson or any other of the County defendants." KAKE contends the trial court erred in this conclusion.
We need not decide whether the trial court's reasoning was correct because we conclude the statute does not apply for a different reasonspecifically, KAKE has *565 not shown that Robson (who approved LLA 98-46) qualified as "an advisory agency, appeal board or legislative body" within the meaning of the statute.
Implicitly conceding Robson did not qualify as an "appeal board or legislative body," KAKE argues that he qualified as "an advisory agency" within the meaning of section 66415, which defines that term to mean "a designated official or an official body charged with the duty of making investigations and reports on the design and improvement of proposed divisions of real property, the imposing of requirements or conditions thereon, or having the authority by local ordinance to approve, conditionally approve or disapprove maps." The problem is that KAKE makes no attempt to show how Robson fits within that definition. Specifically, KAKE points to nothing (either in the record or otherwise) to show that Robson: (1) was "charged with the duty of making investigations and reports on the design and improvement of proposed divisions of real property"; (2) was "charged with the duty of "imposing ... requirements or conditions" "on the design and improvement of proposed divisions of real property"; or (3) "ha[d] the authority by local ordinance to approve, conditionally approve or disapprove maps."
KAKE characterizes as "unfounded" the People's "assertion that Director Robson did not have authority to approve or disapprove maps," but this argument improperly attempts to shift the burden of proof and persuasion on this argument from KAKE to the People. It is not the People's burden to show that Robson did not have the authority necessary to make him an "advisory agency" within the meaning of section 66415, but KAKE's burden to show that he did. Because KAKE was the party attempting to rely on the statute of limitations as a defense to the People's action, it was KAKE that had to show the existence of all elements necessary for Robson's action to have triggered that statute. Similarly, because it is KAKE that now contends the trial court erred in finding the statute inapplicable, it is KAKE that bears the burden of persuading us the trial court erred in reaching that conclusion.
Unfortunately, the only effort KAKE makes to show Robson falls within section 66415 is an oblique argument that the "authority to approve a lot line adjustment" is the equivalent of the "authority to approve a map within the meaning of Government Code section 66415." We are not persuaded. We understand the reference in section 66415 to the "the authority ... to approve, conditionally approve or disapprove maps" to be a reference to the maps that are the subject of the Subdivision Map Acttentative, final, and parcel maps. (See § 66425.) KAKE offers nothing to suggest Robson had the power to approve or disapprove such maps under any local ordinance. While he may have had the authority to approve a lot line adjustment, "[n]o tentative map, parcel map, or final map [can] be required as a condition to the approval of a lot line adjustment" (§ 66412), and therefore his authority to approve such an adjustment does not imply the authority to approve a map within the meaning of section 66415.
For the foregoing reasons, we conclude KAKE has failed to show the 90-day limitations period in section 66499.37 applies here.
B
Section 66412(d)
As we have noted, in 1998 when Robson approved LLA 98-46, section 66412(d) provided that the Subdivision Map Act did not apply to "[a] lot line adjustment between two or more existing adjacent parcels, where the land taken from one parcel is added to an adjacent parcel, and where a *566 greater number of parcels than originally existed is not thereby created...." (Stats. 1994, ch. 458, § 2.) In 2001, the Legislature amended the statute to provide that this exception from the Subdivision Map Act applies only when the lot line adjustment is "between four or fewer existing adjoining parcels," rather than "between two or more existing adjacent parcels" as the statute previously provided. (Stats. 2001, ch. 873, § 2.) In essence, the amendment limits this exception from the Subdivision Map Act to lot line adjustments involving two, three, or four adjacent parcels; lot line adjustments involving five or more adjacent parcels are subject to the Subdivision Map Act.
In the trial court, this case was litigated and resolved on the shared belief that the former version of section 66412(d) governed. On appeal, however, the People contend "[application of the current version of [the statute] is appropriate." According to the People, this is so "because, on review of an injunction, the court applies the law in effect at the time of review."
We need not decide whether application of the correct version of section 66412(d) is appropriate because, as will be seen, even under the version of the statute that was in effect when Robson approved LLA 98-46, the People prevail.
C
Parcel Counting
The primary issue in these appeals is whether LLA 98-46 created more parcels than existed immediately before the lot line adjustment. Since it is undisputed LLA 98-46 resulted in 29 parcels, the dispositive question is whether there were 29 or more parcels before the adjustment. If there were 29 or more parcels, then LLA 98-46 did not create a greater number of parcels and KAKE's division of its property was exempt from the Subdivision Map Act. If there were fewer than 29 parcels, then LLA 98-46 did create a greater number of parcels and the Subdivision Map Act applied.
All parties agree the question of how many parcels existed immediately before the lot line adjustment is a question of law to be answered based on the undisputed history of title to the land that now makes up Burr Valley Estates, as summarized and detailed by John Blodger, a land surveyor with the state Department of Conservation.
In determining how may parcels existed, it is helpful to note what is not disputed. It is undisputed that Burr Valley Estates is made up of all or part of seven different "sections,"[7] numbered 4, 5, 9, 10, 15, 32, 33, and 34. (Further, the parcel count with regard to four of those sections4, 9, 15, and 33is undisputed; the parties agree there were 14 parcels in those sections: 5 in section 4, 1 in section 9, 1 in section 15, and 7 in section 33.[8]
Where the parties disagree is on the number of parcels in sections 5,10, 32, and *567 34. The People contend there were 2 parcels in sections 5 and 32, 2 parcels in section 10, and 3 parcels in section 34 which, when added to the 14 undisputed parcels, makes a total of 21 parcels. KAKE, on the other hand, contends there were 4 parcels in section 10, 14 parcels in section 34, and either 5 or 8 parcels in sections 5 and 32[9]for a total of either 37 or 40 parcels. The county defendants agree with KAKE that there were 4 parcels in section 10 and at least 10 parcels in section 34. According to them, however, since this means there were at least 28 parcels (14 plus 4 plus 10) before counting the parcels in sections 5 and 32, then even if the People are correct in counting only 2 parcels in those sections, the total still exceeds 29.
From the foregoing, it appears the crux of the case is the parcel counting in sections 10 and 34. Thus, we begin our analysis with the number of parcels that were in sections 10 and 34 immediately before LLA 98-46.
Before turning to that analysis, we pause to note two principles the parties do not dispute. First, it is undisputed that mere common ownership of separate contiguous parcels does not result in merger of those parcels into a new, single parcel. (See § 66451.10, subd. (a) ["two or more contiguous parcels or units of land which have been created under the provisions of this division, or any prior law regulating the division of land, or a local ordinance enacted pursuant thereto, or which were not subject to those provisions at the time of their creation, shall not be deemed merged by virtue of the fact that the contiguous parcels or units are held by the same owner"].)
Second, it is undisputed that when two or more parcels that have been separately and distinctly described in an instrument of conveyance or security document are subsequently conveyed together using a single, consolidated legal description, those parcels are not merged into a single parcel absent an express statement by the grantor of the intent to do so in the instrument of conveyance. This principle is based on Civil Code section 1093, which provides as follows: "Absent the express written statement of the grantor contained therein, the consolidation of separate and distinct legal descriptions of real property contained in one or more deeds, mortgages, patents, deeds of trust, contracts of sale, or other instruments of conveyance or security documents, into a subsequent single deed, mortgage, patent, deed of trust, contract of sale, or other instrument of conveyance or security document (whether by means of an individual listing of the legal descriptions in a subsequent single instrument of conveyance or security document, or by means of a consolidated legal description *568 comprised of more than one previously separate and distinct legal description), does not operate in any manner to alter or affect the separate and distinct nature of the real property so described in the subsequent single instrument of conveyance or security document containing either the listing of or the consolidated legal description of the parcels so conveyed or secured thereby."
Civil Code section 1093 was not enacted until 1985 (Stats.1985, ch. 911, § 1, p. 2905), long after the conveyances at issue here; however, the Legislature declared that the statute did "not constitute a change in, but is declaratory of, the existing law." (Civ.Code, § 1093.) No party disputes the accuracy of this declaration. As will be seen, while we have reason to question the declaration's accuracy, there is no need here to actually determine whether section 1093 accurately expresses the law as it was before 1986. Accordingly, we will assume for purposes of this case that it does.
1. Section 10
With the foregoing principles in mind, we turn to the counting of parcels in section 10. As relevant here, that section was originally comprised of four separate parcels created by federal patents.[10] By 1904, Charles Hesse owned two of those parcels: one consisting of the west half of the west half of `the section and the other consisting of the east half of the southwest quarter and the southeast quarter of the northwest quarter of the section. The other two parcelsone consisting of the south half of the northeast quarter and the west half of the southeast quarter of the section, and the other consisting of the east half of the southeast quarter of the sectionwere owned by G.C. Garrett and C.E. Tinkham. (See appen., p. 1.)
A county road known as Ridge Road ran through all four parcels roughly east to west in the south half of the section. In 1904, a land exchange accomplished by three different deeds conveyed all of the land in section 10 south of Ridge Road to B.A. Bell, while Charles Hesse became the owner of all the land in section 10 north of Ridge Road that had been part of the four parcels. (See appen. p. 1.) The land south of Ridge Road is not part of Burr Valley Estates and is not at issue here. What is at issue is how many parcels Charles Hesse owned in section 10 following the 1904 land exchange.
The first deed in the 1904 land exchange was executed on January 7,1904. In that deed, Garrett and Tinkham conveyed the parts of the two parcels they owned in section 10 that lay north of Ridge Road to Charles Hesse by a single metes and bounds description[11] that did not refer to the two existing parcels from which the land was taken.[12]
*569 The parties disagree about the number of parcels conveyed in this deed. KAKE and the county defendants contend the deed conveyed two new parcels to Charles Hessespecifically, those parts of the two parcels Garrett and Tinkham owned in section 10 that lay north of Ridge Road (we will refer to these as fractional parcels). The People, on the other hand, contend the deed conveyed only a single new parcelthe parcel described in the deed. For the reasons that follow, we agree with the People.
"In the construction of boundaries, the intention of the parties is the controlling consideration. [Citation.] Whenever possible, a court should place itself in the position of the parties and ascertain their intent, as in the case of any contract. As stated in Miller & Lux, Inc., v. Secara, 193 Cal. 755 [227 P. 171], `Intention, whether express or shown by surrounding circumstances, is all controlling ...'" (Machado v. Title Guarantee and T. Co. (1940) 15 Cal.2d 180,186, 99 P.2d 245.)
"[E]xtrinsic evidence is always admissible to explain the calls of a deed for the purpose of their application to the subject-matter, and thus to give effect to the deed. [Citation.] In construing a doubtful description in a grant, the court must assume as nearly as possible the position of the contracting parties, and consider the circumstances of the transaction between them, and then read and interpret the words used in the light of these circumstances." (Thompson v. Motor Road Co. (1890) 82 Cal. 497, 500, 23 P. 130.)
Here, no party points to any evidence of surrounding circumstances that would assist in divining the intent of the parties to the various transactions at issue, including the 1904 deed from Garrett and Tinkham to Charles Hesse. As for the deed itself, there is nothing in it suggesting Garrett and Tinkham intended to convey two new fractional parcels to Charles Hesse, as opposed to a single new parcel. The deed contains a single metes and bounds description of what by all appearances is one tract of land. As the People point out, the deed does not make "any reference to the old patent parcel boundary that ... divide[d] the original holdings of Tinkham and Garrett in section 10." Furthermore, the deed specifies that what is being conveyed is "all that certain lot and parcel of land" which the deed then goes on to describe. (Italics added.) Before it was filled out, that part of the preprinted deed looked like this: "all th---- certain lot---- and parcel---- of land." Had Garrett and Tinkham intended to convey two parcels instead of one, they could have filled out the deed to convey "all those certain lots and parcels of land" thereafter described, but they did not do so. Instead, they filled the blank after the "th" with "at" to create the word "that" and put small lines through the blanks after "lot" and "parcel" showing that they intended to use the singular *570 of those words, rather than the plural. Thus, by all appearances, the deed conveyed a single new parcel created from parts of the two parcels Garrett and Tinkham owned in section 10, rather than two new parcels, each created from one of those parts.
Both KAKE and the county defendants suggest we should not be so quick to infer an intent on the part of Garrett and Tinkham and Charles Hesse to (as the county defendants put it) "destroy old parcel boundaries and entirely subsume them within the new ones" because the combination of parts of existing parcels into a single new parcel would make the land involved less valuable. On this point, KAKE observes that "[m]erger [of the parts of the existing parcels] would result in a loss of the landowner's right later to divide the property without complying with then-applicable subdivision laws." While that is certainly true, if we look to the state of the law in Tehama County in 1904, we find no reason that Charles Hesse would have been concerned about later difficulties in dividing the property he received from Garrett and Tinkham.
California's first subdivision map statute was enacted in 1893 (Stats. 1893, ch. 80, § 1, p. 96; see Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 761, 29 Cal.Rptr.2d 804, 872 P.2d 143), but it was not until the 1970's that divisions of land in which only four or fewer parcels were created (minor subdivisions) were subject to statewide regulation. (See Van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 565-566, 6 Cal. Rptr.3d 746.) Although such divisions of land "still could be regulated by local ordinance" (Stell v. Jay Hales Development Co. (1992) 11 Cal.App.4th 1214, 1224, 15 Cal.Rptr.2d 220), Tehama County did not have an ordinance regulating minor subdivisions before 1972. What this means is that in 1904 there would have been no reason for Charles Hesse to be concerned that Garrett and Tinkham were conveying only one parcel to him, because the law at the time allowed him to divide that parcel into two, three, or even four parts and sell those parts separately without any restriction. No party offers any reason why Charles Hesse should have anticipated a change in the law that would have restricted his right to divide his property.[13] Given this circumstance, we find no reason to believe Garrett and Tinkham intended to convey two new fractional parcels to Charles Hesse rather than the single new parcel described in the deed.
KAKE attempts to avoid this conclusion by relying on the antimerger rule in Civil Code section 1093. KAKE contends that finding an intent to "`obliterate the previous patent boundaries'" "from use of the metes and bounds deed[ ] would make Civil Code section 1093 irrelevant," and under Civil Code section 1093 "[t]he use of a metes and bounds deed does not result in merger of jointly described parcels."
KAKE reads the statute too broadly. As the People point out, Civil Code section 1093 "concerns only those situations where one party is conveying entire preexisting parcels in a consolidated description" and "does not apply to situations where portions of pre-existing parcels, never before described separately, are being conveyed." KAKE contends this is a *571 "creative interpretation of the language of [Civil Code] section 1093" that "is not supported by citation to any authority." KAKE is correct on the latter point, but no citation to authority is necessary when, as here, the statutory language is clear. (See DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601, 7 Cal.Rptr.2d 238, 828 P.2d 140 [when statutory language is clear and unambiguous, there is no need for construction].) Undeniably, by its plain terms, Civil Code section 1093 applies only when two or more "separate and distinct legal descriptions of real property contained in one or more [previous] instruments of conveyance or security documents" are later consolidated in "a subsequent ... instrument of conveyance or security document," either by "an individual listing of the legal descriptions" or "a consolidated legal description comprised of more than one previously separate and distinct legal description."
Here, no "separate and distinct legal description" of either of the fractional parcels KAKE contends Garrett and Tinkham conveyed to Charles Hesse is contained in any previous instrument of conveyance or security document. It necessarily follows then that the 1904 deed from Garrett and Tinkham to Charles Hesse does not contain "an individual listing of [any previously separate and distinct] legal descriptions" of those fractional parcels or "a consolidated legal description comprised of more than one previously separate and distinct legal description" of those fractional parcels. Under these circumstances, the rule stated in Civil Code section 1093 simply does not apply.
The county defendants contend that even if Civil Code section 1093 does not directly apply "to transfers of fractions of separate parcels, it is certainly a persuasive determination, in an analogous setting, that the use of a single legal description does not evince an intention to merge heretofore separate pieces of land." Thus, even though Civil Code section 1093 does not apply here, the county defendants would have us reach the same result that Civil Code section 1093 would compel if it did apply because the statute is "presumably representative of a consistent body of law with consistent purpose and effect."
This is a rather remarkable contention. In effect, without citing any legal authority in support of their position, the county defendants would have us conclude that California common law provides (and has long provided) an antimerger rule identical to the one set forth in Civil Code section 1093, except that (unlike Civil Code section 1093) it applies to fractional parcels that have never before been described separately in any security document or instrument of conveyance. According to the county defendants, such a rule must exist (even though we have been given no evidence of it) because otherwise "major landowners ... would routinely surrender their successor's ability to separately use and sell portions of their land, to their potentially severe financial detriment."
We are not inclined to create a rule of common law from whole cloth and apply it to transactions that occurred more than 100 years ago. Moreover, we are particularly reluctant to extend the rule stated in Civil Code section 1093 to situations beyond the scope of the statutory language because, notwithstanding the Legislature's assertion in the statute, we have reason to question whether the rule stated in the statute actually existed before the statute was enacted. No one has cited, nor have we found, any authority (other than Civil Code section 1093 itself) supporting the assertion that before 1986, a consolidated legal description used in a deed to convey two or more parcels that had previously been separately and distinctly described in *572 one or more instruments of conveyance or security documents could not be deemed to merge the preexisting parcels absent an express written statement of the grantor contained in the later deed. In other words, we have found no evidence that the rule stated in Civil Code section 1093 was the law before the statute was enacted. As far as we can determine, historically the law that governs the interpretation of deeds has been that "the intention of the parties is the controlling consideration" (Machado v. Title Guarantee and T. Co., supra, 15 Cal.2d at p. 186, 99 P.2d 245), and "[i]n construing a doubtful description in a grant, the court must assume as nearly as possible the position of the contracting parties, and consider the circumstances of the transaction between them, and then read and interpret the words used in the light of these circumstances" (Thompson v. Motor Road Co., supra, 82 Cal. at p. 501, 23 P. 130). This law did not make an express statement of merger by the grantor an absolute prerequisite to finding an intent to merge two or more previously separate parcels.
The Legislature's assertion that a statute is declaratory of existing law does not make it so, if the law found in the code books and case books does not in fact support that assertion. Nevertheless, because the validity of Civil Code section 1093, as it applies to the situations specifically described in the statute, has no bearing on the outcome of this case (as will be shown), we need not actually determine whether the Legislature's assertion in the statute was accurate. We do, however, conclude the apparent absence of any law consistent with the antimerger rule in Civil Code section 1093 prior to the statute's enactment is further reason for us to decline the county defendants' request that we recognize an analogous antimerger rule that applies to fractional parcels that have never before been separately and distinctly described, and that we apply that rule to transactions that occurred more than 100 years ago.
Based on the foregoing reasoning, we conclude that in 1904 when Garrett and Tinkham conveyed to Charles Hesse that portion of their property in section 10 lying north of Ridge Road using a single metes and bounds description and identifying the property conveyed as "that certain lot and parcel of land," they intended to convey to Charles Hesse the single parcel they described in the deed to him and not two fractional parcels that were not then (and have never since been) separately described.
The foregoing conclusion disposes of the property in the eastern half of section 10 that is included in Burr Valley Estatesit consists of one parcel, not two. This takes us to the second deed in the 1904 land exchange and the property in the western half of section 10. On January 12, 1904, Charles Hesse conveyed to B.A. Bell the parts of the two parcels he owned in the west half of section 10 lying south of Ridge Road. We are not concerned here with the property Charles Hesse conveyed to Bell, as that property like the other property in section 10 south of Ridge Roadis not part of Burr Valley Estates and therefore not at issue here.[14] What is at issue here is the property that Charles Hesse retained.
We conclude the property Charles Hesse retained consisted of two distinct parcelsspecifically, the remainders of the two parcels off of which he carved the land *573 south of Ridge Road to give to Bell. Indeed, the People do not argue otherwise. Instead, they contend "the facts of this case make th[e] inquiry [into whether one or two parcels remained] irrelevant" because "[i]n every case where a landowner conveyed out fractions of pre-existing parcels, the landowner later conveyed out the remainder fractions as well." According to the People, the later conveyance has the same legal consequences as the 1904 conveyance from Garrett and Tinkham to Charles Hesseeven if Charles Hesse retained two parcels instead of one, his later use of a single legal description to convey those two previously undescribed parcels, without reference to the preexisting patent parcel lines, demonstrates an intent to merge those parcels into one.
We turn to Charles Hesse's disposition of what remained in the west half of section 10 after his 1904 conveyance to Bell to determine if that is so. After Charles Hesse conveyed the land south of Ridge Road to Bell, he was left with the remainder of each of the two parcels north of the road. In 1918, he and his wife conveyed that land, along with other land, to Albert Montgomery in a deed that described the land as "all those certain lots and parcels of land, situate, lying and being in the County of Tehama, State of California, and bounded and particularly described as follows, to-wit: All of fractional Section Four (4), all of Section Nine (9), the West half of the Northwest quarter (W 1/2 of NW 1/4), the Southeast quarter of the Northwest quarter (SE 1/4 of NW 1/4), the North half of the Southwest quarter (N 1/2 of SW 1/4), and all that part of the South half of the Southwest quarter (S 1/2 of SW 1/4), lying North of the Ridge Road in Section Ten (10). All that part of the Northwest quarter of the Northwest quarter (NW 1/4 of NW 1/4) lying North of the Ridge Road, in Section Fifteen (15), all in Township Twenty-six (26), North of Range Five (5) West, M.D.M., and containing 1698 acres, more or less." (Italics added.) (See appen., p. 2.)
The italicized portion of the legal description above describes the property in section 10 north of Ridge Road that Charles Hesse conveyed to Montgomery. The People's position is that because this "description does not retain any reference to the old patent parcel boundary which used to lie within the remainder parcel," "the remainder parcel that was conveyed to Montgomery [w]as just one parcel." KAKE counts this property as two parcels because there is no "language of merger" in the deed, and therefore under Civil Code section 1093, the two preexisting parcels were not merged by the conveyance to Montgomery. Civil Code section 1093 does not apply, however, because the two parcels at issuewhat remained after Charles Hesse conveyed his land in section 10 south of Ridge Road to Bellwere never separately and distinctly described in any instrument of conveyance or security document. Moreover, as we have explained already, we have found no basis for recognizing the existence of a rule like that in Civil Code section 1093 that applies to fractional parcels that have not been so described. Accordingly, we are left with nothing more than the description in the deed to ascertain whether Charles Hesse intended to convey the undescribed fractional parcels or the one parcel actually described in the deed.
We conclude the latter answer is correct. Although this deed (unlike the 1904 deed discussed above) refers to "all those certain lots and parcels of land," the use of the plural is explained by the fact that in addition to conveying the land in section 10 to Montgomery, Charles Hesse also conveyed to him in this deed various other parcelsspecifically, parcels in section 4, section 9, and section 15. Under these *574 circumstances, absent anything in the deed or any extrinsic evidence suggesting Charles Hesse intended to maintain the parcel boundary that previously separated the two fractional parcels he retained in the west half of section 10 after conveying the land south of Ridge Road to Bell, we conclude the property in the west half of section 10 that is now part of Burr Valley Estates consists of one parcel, not two.
2. Section 34
We turn now to section 34. That section was originally comprised of eight separate parcels created by federal patents.[15] By 1907, Charles Hesse owned all eight parcels, including two parcels comprising the southeast quarter of the sectionnamely, the north half of the quarter and the south half of the quarter. In 1908, he conveyed to Frances Hesse 100 acres in the southeast quarter of the section, which the deed described by metes and bounds without reference to the two existing parcels from which the land was taken. Essentially, what was conveyed were portions of the existing parcels lying: (1) south of a road (Johnson Road) running roughly east to west near the northern boundary of the quarter; and (2) east of a line running from the road to the south boundary of the quarter.[16] (See appen., p. 3.)
The parties disagree about the number of parcels conveyed in this deed. KAKE contends that in making this conveyance, Charles Hesse "cut pieces out of [the two existing] parcels ..., creating two new legal parcels," which he conveyed to Frances Hesse. The county defendants agree. The People, on the other hand, contend Charles Hesse conveyed only a single new parcel to Frances Hessethe parcel described in the deed.
For the reasons set forth above in connection with our analysis of section 10, we agree with the People. The deed to Frances Hesse described a single "lot and parcel of land" without reference to the boundary between the preexisting parcels from which the new parcel was taken. Absent anything in the deed or any extrinsic evidence suggesting Charles Hesse intended to maintain that parcel boundary, we conclude Charles Hesse intended to convey the single parcel he described in the deed to Frances Hesse, and not two fractional parcels that were not then (and have never since been) separately described.
In 1910, Charles Hesse conveyed another 100 acres south of Johnson Road to Frances Hesse, again using a metes and bounds description without reference to the existing parcels from which the land was taken.[17] (See appen., p. 3.) KAKE *575 contends this deed created nine parcels where there were five before. For the reasons set forth above, KAKE is mistaken. Like the 1908 deed, the 1910 deed to Frances Hesse described a single "lot and parcel of land" without reference to the boundaries between the preexisting parcels from which the new parcel was taken. Absent anything in the deed or any extrinsic evidence suggesting Charles Hesse intended to maintain those parcel boundaries, we conclude Charles Hesse intended to convey the single parcel he described in the deed to Frances Hesse, and not five new fractional parcels that were not then (and have never since been) separately described.
That brings us to what happened to section 34 after 1910. Following his two deeds to Frances Hesse, Charles Hesse continued to own three of the original patent parcels in that section and the fractional remainders of four others. In 1913, Charles Hesse conveyed all of that land, along with other land in section 33, to R.L. Douglas by conveying "all those certain lots and parcel [sic] of land, situate, lying and being in the County of Tehama, State of California, and bounded and particularly described as follows, to wit: [¶] All of Section thirty three (33) in Township twenty seven (27) North Range Five (5) West M.D.M. and all of Section thirty four (34) of said Township, and Range, except Two Hundred (200) acres thereof heretofore deeded by party of the first part to Frances Hesse." (Italics added.) (See appen., p. 4.)
KAKE contends that the italicized language in this deed conveyed seven parcels to Douglasthe three original patent parcels and the four fractional parcels that Charles Hesse owned after his 1910 deed to Frances Hesse. The People contend the italicized language conveyed only one parcel to Douglas because it merged all of Charles Hesse's remaining land in section 34 into one new parcel, even though that land included "the entirety of three preexisting patent parcels." (Italics omitted.) Recognizing that this position presents a potential conflict with the antimerger rule in Civil Code section 1093, the People assert that "even if the boundaries of the three pre-existing parcels wholly contained in the conveyance should today be honored, that would only add three to the State's parcel count," raising it to 24, which still means "the County's lot line adjustment for KAKE [was] illegal." (Italics omitted.)
We need not decide which position is correct, however, because even if KAKE is correct in asserting that the 1913 deed conveyed seven parcels to Douglas, it makes no difference in the outcome of the case. Based on our previous analysis, accepting KAKE's position on the 1913 deed would result in only nine parcels in section 34the two conveyed in 1908 and 1910 to Frances Hesse and the seven conveyed in 1913 to Douglas. As we will explain, nine parcels in section 34 is not enough to bring the total number of parcels in Burr Valley Estates to 29 before the lot line adjustment, which is a prerequisite for KAKE *576 and the county defendants to prevail on their appeals from the judgment.
3. Sections 5 And 32
The reason for this result lies in the parcel counting in sections 5 and 32. As noted above, the People contend there were 2 parcels in sections 5 and 32, while KAKE contends there were either 5 or 8 parcels in those sections. Again, we agree with the People.
The history of the lands in sections 5 and 32 is complicated. For our purposes, however, we need only focus on a portion of that history. By 1936, all of the land in sections 5 and 32 (along with other land in sections 6 and 31) was owned by the estate of Mandus Johnson. (See appen. p. 5.) In April 1936, the executors of the estate conveyed all of that land to Andrew Jr., Silas, Olaf, and Malen Johnson. By 1944, following a series of conveyances, Andrew Jr. owned an undivided one-quarter interest in the property and Silas owned an undivided three-quarters interest in the property. (See appen., p. 6.) Then, in 1948, in an action filed by the executors of Andrew Jr.'s estate against Silas and others, the Tehama County Superior Court entered an order partitioning the property (known as Burr Valley Ranch) between Silas and his wife and Andrew Jr.'s heirs. As the People point out, "Insofar as is pertinent here, Silas Johnson obtained a parcel consisting essentially of the west half of section 5, while [Andrew Jr.'s heirs] obtained a parcel that consisted essentially of the east half of section 5 and a part of the east half of section 32." (See appen., p. 6.) The order described the property given to Andrew Jr.'s heirs as "the following portion of Burr Valley Ranch," followed by a metes and bounds description that did not reference any preexisting patent parcel lines, then described the property given to Silas and his wife as "the remaining portion of said Burr Valley Ranch," likewise followed by a metes and bounds description that did not reference any preexisting patent parcel lines. (Italics added.) The order also noted that various "issues and questions" were reserved for future determination, including "[w]hether the Court shall determine that the owners of the respective portions of the Burr Valley Ranch, as partitioned and divided herein, shall bear equally the costs of a division fence between said two parcels as herein partitioned when such fence is constructed." (Italics added.)
The People contend the partition decree "created two new parcels that are entirely independent of any prior parcelization in the two relevant sections." KAKE, on the other hand, contends the partition resulted in 4 parcels in section 5 because of the continued existence of parts of the original patent parcel boundaries. Again, however, KAKE's contention relies on Civil Code section 1093, but the rule in Civil Code section 1093 does not apply here because the property at issue consisted only of fractional parcels, and we have found no basis to recognize the existence of a rule analogous to the one found in Civil Code section 1093 that applies to fractional parcels. Under these circumstances, we agree with the People that before the lot line adjustment sections 5 and 32 contained two preexisting parcels, rather than the 5 to 8 parcels KAKE advocates.
It is because of this result that we need not decide whether the 1913 deed from Charles Hesse to Douglas of land in section 34 conveyed 1, 4, or 7 parcels. Even if it conveyed the greater number, the total number of parcels in Burr Valley Estates immediately before LLA 98-46 would have been only 27-5 in section 4, 1 in section 9,1 in section 15, 7 in section 33, 2 in section 10, 2 in sections 5 and 32, and *577 9 in section 34 (7 conveyed in 1913, plus the 2 parcels conveyed to Frances Hesse). Since this is fewer than the 29 parcels created by the lot line adjustment, the trial court correctly concluded the adjustment was not exempt from the Subdivision Map Act. Accordingly, we will affirm the judgment.[18]
II
The County Defendants' And The People's Appeals From The Attorney Fees Award
The county defendants challenge the award of attorney fees against them on several bases. First, they contend the private attorney general statute (Code Civ. Proc., § 1021.5) does not authorize an award of attorney fees to the Attorney General under the circumstances of this case, if ever. Second, they contend that even if the Attorney General can, in some circumstances, qualify for a fee award under this statute, the People's "personal interests" in this particular litigation make a fee award inappropriate here. Finally, the county defendants contend the trial court abused its discretion in basing the fee award on perceived misconduct by their former attorney rather than on the statutory criteria.
For their part, the People challenge the fee award as inadequate. They agree with the county defendants that "the trial court's sua sponte imposition of attorney's fees as sanctions for the vexatious behavior of the County was procedurally improper," but contend Code of Civil Procedure section 1021.5 "authorized] a full award of attorney's fees to the State in this case." They contend we should reverse the fee award and remand the case to the trial court to reconsider the matter.
A
The "Obdurate Behavior" Rule
We begin with the issue on which both sides agreewhether the trial court's rationale for awarding attorney fees under Code of Civil Procedure section 1021.5 was flawed. To answer that question, we turn to the language of the statute, which in relevant part provides as follows: "Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities ... unless one or more successful parties and one or more opposing parties are public entities. ..."
"[T]he Legislature adopted [Code of Civil Procedure] section 1021.5 as a codification of the `private attorney general' attorney fee doctrine that had been developed in numerous prior judicial decisions." (Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933, 154 Cal.Rptr. 503, 593 P.2d 200.) "Entitlement to fees under [Code of Civil *578 Procedure] section 1021.5 requires a showing that the litigation: `(1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter.'" (California Licensed Foresters Assn. v. State Bd. of Forestry (1994) 30 Cal.App.4th 562, 569, 35 Cal.Rptr.2d 396, quoting Baggett v. Gates (1982) 32 Cal.3d 128, 142, 185 Cal.Rptr. 232, 649 P.2d 874.)
Purporting to apply the statutory criteria, the trial court concluded "the ordinary costs of litigation that the [People] have incurred here did not confer a benefit on the public that transcends their interest in the controversy, that is out of proportion to the [People]'s interest in this matter. No doubt, the public interest of the state at large has been well-served by this litigation; but serving the interests of the state at large is the public responsibility of these plaintiffs...."
Despite this conclusion, the court went on to examine what it believed was another "aspect" of the private attorney general doctrine"the `obdurate behavior' rule." In the trial court's assessment, where a plaintiff has succeeded in conferring a substantial benefit on the general public, it is "appropriate" under Code of Civil Procedure section 1021.5 "to pass on that portion of the attorney fees incurred for the 'financial burden' that was created by the obdurate behavior" of the defendants. Applying this "aspect" of Code of Civil Procedure section 1021.5, the trial court concluded the People should recover $173,450 in attorney fees because "the manner in which the litigation was conducted by the County defendants caused the time and expense of this litigation to be expanded enormously." According to the trial court, the services of one deputy attorney general and one paralegal were entirely attributable to "the unnecessary and vexatious procedures pursued by" the county defendants, and the amount of time the lead deputy attorney general spent on the case was "increased by at least a third as a result of the vexatious and obdurate ... tactics that were used." Thus, the court concluded "the necessity and financial burden of these expenses are such as to make an award of these fees appropriate."
We agree with the People and the county defendants that the trial court's rationale for awarding $173,450 in fees under Code of Civil Procedure section 1021.5. was erroneous. Contrary to the trial court's conclusion, that statute does not allow an award of fees based on a defendant's "obdurate behavior" during the litigation.
The trial court's error in this regard stemmed from a misreading of this court's opinion in County of Inyo v. City of Los Angeles (1978) 78 Cal.App.3d 82, 144 Cal. Rptr. 71. In that case, Inyo County moved for an award of attorney fees against the City of Los Angeles in a writ proceeding in which the county had succeeded in requiring the city to prepare an environmental impact report covering the city's increased extraction and use of Owens Valley groundwater. (Id. at pp. 84-85, 144 Cal.Rptr. 71.) This court noted "the general American doctrine which denies attorney fees to victorious litigants unless provided by statute or contract," then observed that "Inyo County's fee application is grounded on three rules or theories which various courts have recognized as nonstatutory exceptions to the general doctrine: the private attorney general rule, the substantial benefit rule and the vexatious litigant rule. (The county terms the last the `obdurate behavior' rule.)" (Id at p. 86, 144 Cal.Rptr. 71.) The court went on to deny the county's fee request *579 under each of those three doctrines. (Id. at pp. 89-93,144 Cal.Rptr. 71.)
Notably, in denying a fee award under the vexatious litigant/obdurate behavior rule, this court did not actually determine whether it had the power to make such an award; instead, the court "assume[d] existence of power to make the award on this ground." (County of Inyo v. City of Los Angeles, supra, 78 Cal.App.3d at p. 91, 144 Cal.Rptr. 71.) Nine months later, however, in Bauguess v. Paine (1978) 22 Cal.3d 626, 150 Cal.Rptr. 461, 586 P.2d 942, the California Supreme Court concluded trial courts did not have the inherent power to impose sanctions in the form of attorney fees for alleged misconduct. Soon thereafter, the Legislature gave trial courts that power by enacting section 128.5 of the Code of Civil Procedure. (See City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 537,183 Cal.Rptr. 86, 645 P.2d 137.)
From the foregoing (if not from the language of the statute itself), it is apparent Code of Civil Procedure section 1021.5 does not provide any basis for a court to award attorney fees for vexatious litigation or obdurate behavior. Code of Civil Procedure section 1021.5 is a codification of the private attorney general doctrine, which is an entirely distinct basis for recovering attorney fees from the sanctionsbased doctrine that now finds expression in various other statutes, such as section 128.5 of the Code of Civil Procedure.
Here, the People did not seek an award of attorney fees under section 128.5 of the Code of Civil Procedure, or any other statute for that matter, based on the conduct of the county defendants in litigating the case; they sought an award only under the private attorney general doctrine codified in Code of Civil Procedure section 1021.5. Accordingly, the trial court erred in not limiting itself to a consideration of the criterion in that statute.
B
The Necessity Criterion
Having concluded the trial court erred in its application of Code of Civil Procedure section 1021.5 to this case, we turn to the arguments of the county defendants that under no circumstances could an award under that statute be appropriate here.
Consistent with the moniker of the doctrine it codified (the private attorney general doctrine), Code of Civil Procedure section 1021.5 originally precluded public entities from receiving fees under the statute. (See, e.g., City of Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal. App.3d 229, 254-256, 227 Cal.Rptr. 899.) In 1993, however, the Legislature amended the statute to its present form, which allows a public entity to recover attorney fees from another public entity.[19] (Stats. 1993, ch. 645, § 2, p. 3747.)
Here, the People, acting through the Attorney General, the secretary of the state Resources Agency, and the director of the state Department of Conservation,[20]*580 recovered fees from the County of Tehama after prevailing in an action to enforce the Subdivision Map Act and the Williamson Act. At first glance, at least, this situation appears to be covered by the 1993 amendment to Code of Civil Procedure section 1021.5. The county defendants argue, however, that the fee award here was not proper because this case is a quintessential "public enforcement" case to which Code of Civil Procedure section 1021.5 has never applied. According to them, the case law interpreting Code of Civil Procedure section 1021.5 has always recognized a "distinction between the `private enforcement' that is rewarded by the private attorney general doctrine and the `public enforcement' whose absence justifies the doctrine's existence." In their view, where "public enforcement" is available, fees under Code of Civil Procedure section 1021.5 are not, and since this case constitutes quintessential "public enforcement," Code of Civil Procedure section 1021.5 fees are not available here.
The county defendants draw their distinction between "private enforcement" and "public enforcement" from case law predating the 1993 amendment to the statute. At the time, fees were available under Code of Civil Procedure section 1021.5 only where "the necessity ... of private enforcement ... [was] such as to make the award appropriate." In City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 255 Cal.Rptr. 704, this court explained that "the statutory requirement of `necessity ... of private enforcement' addresses the issue of the comparative availability of public enforcement." (Id at p. 1298, 255 Cal.Rptr. 704.) The court went on to observe that "if there is a public attorney general available to enforce the important right at issue there is no utility in inducing a private attorney general to duplicate the function." (Id at p. 1299, 255 Cal.Rptr. 704.)
Based on the foregoing, the county defendants suggest that recovery of fees under Code of Civil Procedure section 1021.5 is not available when (as here) the Attorney General is available and chooses to act, because such action is by its very nature "public enforcement," the availability of which renders "private enforcement"the type of enforcement to which the statute appliesunnecessary and thus unqualified for a fee award under the statute.
This argument suffers two fatal flaws. First, the necessity criterion in Code of Civil Procedure section 1021.5 has never been interpreted that strictly. Indeed, even where a private party "colitigates with a governmental entity on behalf of the public or a large class of persons, whether by way of intervention or ... by consolidation of separately filed cases," fees under Code of Civil Procedure section 1021.5 may be available if "the colitigating private party rendered necessary and significant services of value to the public or to a large class of persons benefited by the result of *581 the litigation." (Committee to Defend Reproductive Rights v. A Free Pregnancy Center (1991) 229 Cal.App.3d 633, 642, 280 Cal.Rptr. 329.) Thus, even before the 1993 amendment, neither the availability nor the actuality of "public enforcement" that is, enforcement by a public entity necessarily precluded a fee award under Code of Civil Procedure section 1021.5.
Second, even if we were to assume that the county defendants' analysis was valid before the 1993 amendment, it does not withstand scrutiny following that amendment. Under the 1993 amendment, the availability of enforcement by a public entity (i.e., "public enforcement") has no bearing on the necessity criterion in an action involving public entities on both sides. In such a case, the court can award fees under the statute if (among other things) "the necessity ... of enforcement by one public entity against another public entity, [is] such as to make the award appropriate." The question in such a case is not whether private enforcement was necessary but whether public enforcementthat is, enforcement by one public entity against anotherwas necessary. Obviously, in such a case the availability of "public enforcement" cannot preclude a fee award, or no public entity would ever be able to recover fees under Code of Civil Procedure section 1021.5, in derogation of the very terms of the 1993 amendment to the statute.
In summary, we do not agree with the county defendants that "the sovereign's deliberate legal action, through its chief law officer, to enforce its own laws" can never qualify for a fee award under Code of Civil Procedure section 1021.5 because such action constitutes "public enforcement" to which the statute does not apply. The distinction between "public enforcement" and "private enforcement" the county defendants rely upon has no bearing in an action, like this one, involving public entities on both sides.
C
The Financial Burden Criterion
That does not resolve the matter, however, because the county defendants also rely on the financial burden criterion in the statute as a basis for their argument that an award of attorney fees under Code of Civil Procedure section 1021.5 can never be made to the Attorney General. As noted, Code of Civil Procedure section 1021.5 allows a fee award where (among other things) "the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate." Traditionally, the financial burden criterion has been deemed satisfied "`when the cost of the claimant's legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff "out of proportion to his individual stake in the matter."'" (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d at p. 941, 154 Cal.Rptr. 503, 593 P.2d 200, quoting County of Inyo v. City of Los Angeles, supra, 78 Cal.App.3d at p. 89, 144 Cal.Rptr. 71; see also Serrano v. Priest (1977) 20 Cal.3d 25, 46, fn. 18, 141 Cal.Rptr. 315, 569 P.2d 1303.)
The county defendants contend that "[w]here the successful party is the Attorney General representing the People of the State of California, . .. the general public whose interests must be served to justify an award of fees are the same citizens and residents of the state whose benefits disqualify their sovereign from an award." Thus, in the view of the county defendants, attorney fees are never recoverable under Code of Civil Procedure section 1021.5 "in any public enforcement action brought by the Attorney General in his capacity as *582 guardian of the public interest"; or, at the very least, such fees were not recoverable in this particular case because "the burden of this litigation and the benefit to the public interest do not transcend plaintiffs' own interests that are served here."
This argument has merit. Historically, the financial burden criterion of Code of Civil Procedure section 1021.5 has served to limit fee awards under the statute to persons who pursue public interest litigation at a cost to themselves that is out of proportion to any personal interests they might have in the outcome of the matter. The private attorney general doctrine embodied in Code of Civil Procedure section 1021.5 "rests on the recognition that in our complex society, citizens in great numbers frequently have interests in common that, while of enormous significance to the society as a whole, do not involve the fortunes of a single individual to the extent necessary to encourage their vindication by private recourse to the courts. Although there are offices and institutions within the executive branch of the government whose function is to represent the general public in such matters and to ensure proper enforcement (e.g., the Attorney General's office), those offices and institutions are not always able adequately to carry the burden of enforcement, rendering private action socially useful. The issues involved in such litigation are often extremely complex and their presentation time-consuming and costly. The award of substantial attorney's fees to public interest litigants and their attorneys (whether private attorneys acting pro bono publico or members of `public interest' law firms) who are successful in such cases encourages the representation of deserving interests and worthy causes." (Save El Toro Assn. v. Days (1979) 98 Cal.App.3d 544, 552, 159 Cal. Rptr. 577; accord, Serrano v. Priest, supra, 20 Cal.3d at p. 44, 141 Cal.Rptr. 315, 569 P.2d 1303.)
Thus, an award of attorney fees under Code of Civil Procedure section 1021.5 has always served "as a `bounty' for pursuing public interest litigation, not a reward for litigants motivated by their own interests who coincidentally serve the public." (California Licensed Foresters Assn. v. State Bd. of Forestry, supra, 30 Cal.App.4th at p. 570, 35 Cal.Rptr.2d 396.)
With the purpose of the financial burden criterion properly understood, a fundamental anomaly arises in applying that criterion in an action (like this one) brought by the Attorney General on behalf of the People of the State of California. The Attorney General needs no encouragement to pursue litigation that is in the general interest of the state's population because, put simply, that is his or her job. As we have noted, under section 12511 (with certain exceptions not applicable here), "[t]he Attorney General has charge, as attorney, of all legal matters in which the State is interested." And as the court recognized in Save El Toro Assn. v. Days, supra, 98 Cal.App.3d at page 552, 159 Cal. Rptr. 577, the Attorney General's office is one of the "offices and institutions within the executive branch of the government whose function is to represent the general public in such matters and to ensure proper enforcement." (Accord, Serrano v. Priest, supra, 20 Cal.3d at p. 44, 141 Cal. Rptr. 315, 569 P.2d 1303.) Rewarding the Attorney General with attorney fees for simply doing his or her job would essentially write the financial burden criterion, as it has historically been understood, out of the statuteat least where the Attorney General is concerned.
Significantly, the People do not dispute the historical understanding of the financial burden criterion, nor do they claim to be "exempt from meeting all the requirements of eligibility for fees under Section *583 1021.5 to make a successful claim." Instead, they argue the financial burden criterion must be applied differently to public entities than it has historically been applied to private entities. They suggest that where a public entity is concerned, the financial burden criterion should involve an analysis of whether "the quantifiable costs of conducting the lawsuit" are out of proportion to any "pecuniary" interest the public entity has in the matter. Under this approach, "where the primaryor onlygoal of a public entity's suit is the enforcement or protection of a public policy interest, and the pecuniary return from the suit is little or nothing, the burden/benefit analysis should ordinarily come out in favor of eligibility for an award of fees."
The People contend this different approach is required because otherwise "the rationale employed by the County and the trial court necessarily and always will preclude a public entity from recovering attorney fees under Section 1021.5, contrary to the express language in the 1993 amendment." We simply cannot agree. There is nothing inherently inconsistent between the financial burden criterion as it has been applied historically and an award of fees to a public entity, at least where that public entity is something less than the state itself.
Two cases will illustrate our point. As we have explained, in County of Inyo v. City of Los Angeles, supra, 78 Cal.App.3d at page 82, 144 Cal.Rptr. 71, this court addressed a motion for attorney fees by Inyo County in an action against the City of Los Angeles. (Id. at pp. 84-85, 144 Cal.Rptr. 71.) In denying the county a fee award under the private attorney general doctrine,[21] this court explained that the statewide benefits the county claimed it had achieved by its litigation were not "disproportionately important and valuable in comparison to [the county's] own." (County of Inyo, at p. 90, 144 Cal.Rptr. 71.) The court went on to explain as follows: "A county is a political subdivision of the state which provides state and local governmental services for its inhabitants. [Citation.] Inyo County went to court as champion of local environmental values, which it sought to preserve for the benefit of its present and future inhabitants. This action is not a `public interest' lawsuit in the sense that it is waged for values other than the [county's]. The litigation is self-serving. The victory won by the county in 1977 bulked large enough to warrant the cost of winning it. The necessity for enforcement by Inyo County did not place on it `a burden out of proportion to [its] individual stake in the matter.'" (Ibid.)
In the second caseCity of Hawaiian Gardens v. City of Long Beach (1998) 61 Cal.App.4th 1100, 72 Cal.Rptr.2d 134Hawaiian Gardens successfully sued to prevent Long Beach from closing a road at the border between the two cities, which would have diverted traffic onto residential streets in Hawaiian Gardens and increased the likelihood of accidents on a street bordering a park and an elementary school. (Id. at pp. 1100, 1106, 72 Cal.Rptr.2d 134.) On appeal from the trial court's denial of attorney fees under Code of Civil Procedure section 1021.5, the appellate court affirmed, noting: "The record establishes that Hawaiian Gardens and its citizens received a substantial benefit when the proposed closure of Pioneer Boulevard was *584 blocked. We agree with the trial court that while the judgment was of regional benefit, there is no showing that the burden of the litigation transcended Hawaiian Gardens' interest in the controversy. The case was tried primarily on the administrative record compiled by Long Beach before the resolution was adopted. There was a brief hearing before the trial court." (Id. at p. 1113, 72 Cal.Rptr.2d 134.)
Although no fee award was made in either of these cases, the cases show that the traditional financial burden criterion in Code of Civil Procedure section 1021.5 can easily be applied to public entities that are political subdivisions of the statethat is, something less than the state as a whole. In such a case, the pertinent question is whether the public entity deserves a reward for pursuing litigation that was in the interest of a greater spectrum of the public than its own constituents. Although neither Inyo County nor the City of Hawaiian Gardens received a fee award, it was at least conceivable that they could have, if the cost of their litigation had transcended the benefits they secured for themselves, transforming it into true "public interest" litigation.
Thus, applying the traditional financial burden criterion to public entity litigants will not always preclude a fee award under Code of Civil Procedure section 1021.5, except when the public entity litigant is the state itself, acting through the Attorney General. Such a case will always be self-serving, in that the People will always be pursuing their own interests through their chief attorney, whose very raison d'être is to enforce the laws of the state and serve the public interests of the state's population as a whole. As the trial court recognized here, even if "the public interest of the state at large has been well-served by this litigation," "serving the interests of the state at large is the public responsibility of the Attorney General. To reward the Attorney General with attorney fees for pursuing litigation it is his or her duty to pursue would stand the private attorney general doctrine on its head.
For the foregoing reasons, we conclude the People are not entitled to recover attorney fees in this action under Code of Civil Procedure section 1021.5, and the trial court erred in concluding otherwise.
DISPOSITION
The judgment is affirmed. The "Order Re Costs And Attorney Fees" is reversed to the extent it awarded attorney fees to the People pursuant to Code of Civil Procedure section 1021.5, but is otherwise' affirmed. The parties will bear their own costs on appeal. (Cal. Rules of Court, rule 8.276(a)(4).)
We concur: DAVIS, Acting P.J., and NICHOLSON, J.
APPENDIX
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NOTES
[1] All further statutory references are to the Government Code unless otherwise indicated.
[2] These arc the County of Tehama, the Tehama County Board of Supervisors, and Tehama County planning director George Robson.
[3] Because the second cause of action was the only cause of action in the third amended complaint directed against KAKE, it would have sufficed if KAKE had filed a motion for summary judgment only.
[4] The People later sought additional fees under Code of Civil Procedure section 1021.8, but the trial court denied that request on the ground it was "based on an unconstitutional purported amendment to" the statute. The People do not contest that ruling on appeal.
[5] Both notices of appeal purport to appeal from a postjudgment order entered on May 11, 2005. That was the date the notice of entry of order was filed; the order itself was filed on May 3. Because no one has complained and it is apparent what order the parties intended to appeal, we will liberally construe the notices of appeal and treat them as referring to the "Order Re Costs And Attorney Fees" entered May 3, 2005. (See Cal. Rules of Court, rule 8.100(a)(2).)
[6] KAKE also contended that to the extent the second cause of action was premised on an alleged violation of section 51257 of the Williamson Act, the cause of action was time-barred by the statute of limitation in subdivision (c)(1) of section 65009. KAKE does not renew this argument on appeal. Accordingly, we address only the limitations issue under the Subdivision Map Act.
[7] "When California became a state, federal surveyors divided it into a rectangular grid centered around one of three base and meridian landmarks.... Each of the townships in the grid is formed by the intersection of township and range lines and is identified by its position relative to [one of] th[es]e central point[s].... A township is approximately 6 miles square and consists of 36 sections, each about a mile square and containing 640 acres." (Pleasant Valley Canal Co. v. Borror (1998) 61 Cal.App.4th 742, 755, fn. 7, 72 Cal.Rptr.2d 1.)
[8] No party agrees with the trial court's conclusion that there were either two or four parcels in Burr Valley Estates immediately before the lot line adjustment.
[9] KAKE actually contends the parties agree there was one preexisting parcel in section 32 and disagree only on the number of preexisting parcels in section 5. This misconception arises from an error in the People's papers. In their memorandum in support of their cross-motion for summary adjudication, the People asserted at two points that there was 1 parcel in section 32 and 1 parcel partly in section 5 and partly in section 32. At another point, they asserted there was "just one parcel in section 5 and one parcel, partly in section 5 and partly in section 32, prior to the so-called Lot Line Adjustment."
The People repeat this inconsistency in their appellate brief. Nonetheless, it is apparent the People rely on Blodger's analysis with regard to sections 5 and 32, and Blodger concluded there were 2 parcels in these sections1 lying entirely in section 5 and another lying partly in section 5 and partly in section 32. Thus, notwithstanding KAKE's assertion that the disagreement pertains only to section 5, we will analyze both section 5 and section 32.
[10] A patent is "`[a] grant made by a government that confers on an individual fee-simple title to public lands.'" (Kellogg v. Garcia (2002) 102 Cal.App.4th 796, 800, fn. 1, 125 Cal.Rptr.2d 817.)
Part of section 10the north half of the northeast quarter and the northeast quarter of the northwest quarterwas never part of the property now making up Burr Valley Estates, and we do not concern ourselves with that part of the section.
[11] "A metes and bounds description gives the boundary lines of the property with their terminal points and angles. Essentially, it is any description other than by reference to particular lots and parcels on a recorded subdivision map." (74 Ops.Cal.Atty.Gen. 149, 150, fn. 2 (1991).)
[12] Specifically, the deed conveyed "all that certain lot and parcel of land, situate, lying and being in the County of Tehama, State of California, and bounded and particularly described as follows, to wit: [¶] Beginning at a point in the center of the Ridge Road from which point the corner to sections 10-11-14 and 15, in Township 26 N.R. 5 W.M.D. M., bears South 17.45 chains, thence following along the center of said Ridge Road by the following courses and distances: North 64° 30' West 5.40 chains, South 77° West 3.57 chains, South 62° West 3.72 chains, North 73° West 3.17 chains, North 57° West 6.15 chains, North 71° 30' West 7.48 chains, South 51° West 8.40 chains, South 50° 30' West 900 chains to the center line of said Section 10, thence North on said center line 46.57 chains, more or less, to the North West corner of the South Half of the North East Quarter of Said Section 10; thence East 40.00 chains, more or less, to the line between Sections 10 & 11, thence South on said Section line 42.55 chains, more or less, to the place of beginning, containing 160 7/10 acres, more or less."
[13] Indeed, KAKE asserts elsewhere that "land owners in the late nineteenth and early twentieth centuries could never have predicted" "the State's increasing control over, and restriction of, development." Given this assertion, it is difficult to imagine why the parties to the 1904 transaction would have been concerned about maintaining existing patent parcel boundaries as a means of protecting themselves against future regulation they "could never have predicted."
[14] For the same reason, we are not concerned with the third deed in the land exchange, which involved Tinkham's and Bell's conveyance of the remainder of their property in section 10 south of Ridge Road to Bell.
[15] One of the federal patents included land outside of section 34, but the parcel created by that patent was later divided when the portion of the parcel within section 34 was conveyed to another owner, and only the portion in section 34 is part of the property at issue here.
[16] Specifically, the deed conveyed "all that certain lot and parcel of land, situate, lying and being in the County of Tehama, State of California, and bounded and particularly described as follows, to wit: [¶] Beginning at the south-east corner of Section Thirty-four (34) in Township Twenty-seven (27) North of Range Five (5) West M.D.B. & M. Thence north 35.22 chains to the center of the County Road:thence following along the center of the County Road, North 74 1/2° West 4.48 chains: thence South 74° West 5.00 chains:Thence North 88 3/4° West 6.12 chains: thence North 79 1/2° West 5.20 chains:Thence North 45° West 4.00 chains. Thence North 82 1/4° west 2.56 chains:thence south 72° West 1.97 chains:thence south 38.69 chains to the south line of said section Thirty-four (34):thence east along said line 27.54 chains to the place of beginning, and containing 100 acres."
[17] Specifically, the deed conveyed "all that certain lot and parcel of land, situate, lying and being in the County of Tehama, State of California, and bounded and particularly described as follows, to wit: [¶] Beginning at a point on the South line of Section 34, in Township 27 North, of Range 5 West M.D. M., said point being 27.54 Chains West of the South east Corner of said Section 34, thence North 38.69 Chains to the Center of the County Road, Known as the `Johnson Road', thence following along the Center of said Road South 71° West 4.35 Chains thence North 68½° West 2.77 Chains, thence North 49½° West 4.64 Chains, thence North 74° West 2.23 Chains, thence North 88" West 8.25 Chains, thence North 82 3/4° West 4.00 Chains thence South 43.10 Chains to the South line of said Section 34, thence North 89 1/4° East 24.57 Chains to the place of beginning, and Containing 100 acres, more or less."
[18] Because the trial court correctly concluded the lot line adjustment had to comply with the Subdivision Map Act, we need not address the People's alternate argument that, even if the lot line adjustment was exempt from the Subdivision Map Act, findings were required under section 51257 of the Williamson Act.
[19] It is unclear from the statutory language whether Code of Civil Procedure section 1021.5 actually limits a public entity to recovering attorney fees from a party on the other side of the litigation that is also a public entity. The statute specifies that it "applies to allowances ... in favor of, public entities .. [if] one or more successful parties and one or more opposing parties are public entities. ..." We need not decide that issue here, however, because the People did not seek fees from KAKE, but only from the county defendants.
[20] In bringing the action, the Attorney General claimed he was acting within his authority under section 12511, which, with certain exceptions not: applicable here, provides that "[t]he Attorney General has charge, as attorney, of all legal matters in which the State is interested." According to the complaint, the secretary of the state Resources Agency and the director of the state Department of Conservation were acting pursuant to section 16147, which provides that "[t]he Secretary of the Resources Agency may request the Attorney General to bring any action in court necessary to enforce any enforceable restriction as defined in Section 422 of the Revenue and Taxation Code, upon land for which the secretary has certified payment of state funds to the local governing body during the current or any preceding fiscal year." In addition, the Attorney General, the secretary, and the director all claimed to be acting pursuant to section 66499.3, which permits "any aggrieved ... public agency" to "file a suit in the superior court of the county in which any real property attempted to be subdivided or sold, leased, or financed in violation of [the Subdivision Map Act] ... is located, to restrain or enjoin any attempted or proposed subdivision or sale, lease, or financing in violation of [the Subdivision Map Act]."
[21] The County of Inyo case, which obviously predated by many years the 1993 amendment to Code of Civil Procedure section 1021.5 that first allowed public entities to seek attorney fees under that statute, was decided under the common law private attorney general doctrine recognized in Serrano v. Priest, supra, 20 Cal.3d at page 25, 141 Cal.Rptr. 315, 569 P.2d 1303 before Code of Civil Procedure section 1021.5 was enacted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276191/ | 142 S.W.3d 316 (2004)
In re ENTERGY CORPORATION, et al.
No. 03-0024.
Supreme Court of Texas.
Argued November 12, 2003.
Decided June 25, 2004.
*318 Howard V. Fisher, Hunton & Williams, Dallas, Steven D. Arnold, Hensley, Shanor & Martin, L.L.P., Austin, John R. Hulme, for amicus curiae.
Lawrence L. Germer, Kelli Lynn Smith, Germer Gertz, L.L.P., Beaumont, Mark Held, Clark Thomas Winters, Austin, Paul A. Scheurich, Benckenstein Norvell & Nathan LLP, L. Richard Westerburg, Beaumont, John F. Williams, for relator.
Lindol Bruce Gregory, Daniel Joseph Lawton, Austin, H.P. Wright, for respondent.
Justice SMITH delivered the opinion of the Court.
This dispute arises from a private settlement agreement incorporated in a Public Utility Commission order. After the underlying lawsuit was filed, the trial court denied Entergy Corporation's[1] Motion to Transfer Venue, Motion to Dismiss for Want of Subject Matter Jurisdiction, and *319 Motion to Abate. Entergy, having failed to secure relief from the court of appeals, now seeks a writ of mandamus from this Court on the basis that the Public Utility Commission has exclusive jurisdiction over the subject matter of this dispute. Because we agree, we conditionally grant the writ.
I. Background
In 1992, Entergy agreed to purchase Gulf States Utilities Company ("GSU"), an electric utility serving customers in eastern Texas and western Louisiana. In order to obtain the requisite regulatory approval for the transaction, Entergy and GSU filed an administrative proceeding, styled Docket No. 11292, with the Public Utility Commission of Texas ("PUC"). In 1993, Entergy, GSU, and various other parties[2] reached an agreement (the "Merger Agreement") which they filed with the PUC as a proposal for resolving Docket No. 11292. The Merger Agreement called for certain anticipated merger-related savings to be shared between rate-payers and shareholders. Nonfuel-related cost savings for the first eight years after the merger were to be divided equally between ratepayers and shareholders. After eight years, all savings were to be passed on to the ratepayers. The Merger Agreement stated that savings were to be reflected in the new entity's rates and would be implemented in three post-merger rate proceedings during the eight-year term of the agreement pursuant to either section 42 or 43 of the Public Utility Regulatory Act.[3]
The PUC adopted the Merger Agreement in its order approving the Entergy/GSU merger application. The order stated that "[a]pplicants [Entergy and GSU] SHALL comply with the terms and conditions set forth in the [Merger Agreement]" and that "GSU SHALL file PURA § 43 rate cases on the schedules and for the purposes established in [the Merger Agreement]." Entergy and GSU then completed the merger, resulting in a new entity known as Entergy Gulf States, Inc. ("EGSI"). Entergy Corporation is EGSI's sole shareholder.
EGSI filed and completed the first two rate cases contemplated by the Merger Agreement. While the second rate case was pending before the PUC, the Legislature passed Senate Bill 7, mandating retail electric deregulation in Texas. Act of May 27, 1999, 76th Leg., R.S., ch. 405, 1999 Tex. Gen. Laws 2543 (codified as Public Utility Regulatory Act (PURA), Tex. Util.Code §§ 39.001-41.104 (1998)). Senate Bill 7 dramatically altered the electric utility landscape in Texas by requiring the unbundling of generation, transmission, and distribution services. PURA § 39.051. Senate Bill 7 also froze electric utility rates through December 31, 2001 and called for retail competition to begin January 1, 2002. PURA § 39.052(a).
The passage of Senate Bill 7 raised the question of whether EGSI would be required to proceed with the third rate case contemplated by the Merger Agreement, *320 which was scheduled to be filed in November 2001. The PUC addressed the question in Docket No. 22356, an EGSI Senate Bill 7 implementation proceeding. A June, 2000 PUC preliminary order stated:
The Commission concludes that PURA § 39.201 is quite specific and does not contemplate an additional filing in 2001. Section 39.201(a) requires a utility to file its proposed rates for the transmission and distribution utility not later than April 1, 2001. Subsection (d) directs the Commission to hold hearings and approve or modify the proposed tariff and make the tariff effective January 1, 2002. The Commission intends to comply with this statutory scheme and set Entergy's transmission and distribution rates in this proceeding and will not require Entergy to file a rate case in November 2001.
As the statutory start date for retail competition approached, EGSI requested that the PUC, as authorized by section 39.103 of PURA, postpone the start of retail competition in EGSI's service area. In late 2001, in Docket No. 24469, EGSI, the staff of the PUC, and various other signatories[4] entered into an agreement (the "Settlement Agreement") whereby retail competition in EGSI's service territory would be postponed until September 15, 2002, or later if necessary. The Settlement Agreement was adopted in a December, 2001 PUC order. During the interim, EGSI would continue to charge its customers the rates frozen by Senate Bill 7.
In February 2002, Dale Shearer and several other EGSI ratepayers, the plaintiffs in the underlying case, brought suit in district court alleging that Entergy and EGSI breached the Merger Agreement when they entered into the Settlement Agreement because the two agreements' terms are inconsistent. That is, Shearer alleges that the Settlement Agreement conflicts with the Merger Agreement's requirement that a third proceeding be filed with the PUC and that certain merger-related savings inure to the ratepayers.
In the trial court, Entergy filed a Motion to Transfer Venue, a Motion to Dismiss for Want of Subject Matter Jurisdiction, and a Motion to Abate. After conducting multiple hearings, the trial court denied Entergy's motions. Entergy then sought a writ of mandamus from the court of appeals on the same motions, but was again denied. We agreed to consider Entergy's petition for writ of mandamus to determine if the trial court had subject matter jurisdiction over the lawsuit.
II. Mandamus
Mandamus relief is appropriate only if the court clearly abused its discretion and the relator has no adequate remedy by appeal. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex.2000). As a general rule, mandamus does not lie to correct incidental trial court rulings when there is a remedy by appeal. Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex.1990) (concluding that mandamus was not appropriate to review trial court's ruling on plea to the jurisdiction).
The reluctance to issue extraordinary writs to correct incidental trial court rulings can be traced to a desire to prevent parties from attempting to use the writ as a substitute for an authorized appeal. See, e.g., United States Alkali Export Ass'n v. United States, 325 U.S. 196, 202-03, 65 *321 S.Ct. 1120, 89 L.Ed. 1554 (1945) (recognizing that "hardship is imposed on parties who are compelled to await the correction of an alleged error at an interlocutory stage by an appeal from final judgment"). This Court has long held that the mere cost and delay of pursuing an appeal will not, in themselves, render appeal an inadequate alternative to mandamus review. See Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648, 652 (1958) ("[T]hat there may be some delay in getting questions decided through the appellate process, or that court costs may thereby be increased, will not justify intervention by appellate courts through the extraordinary writ of mandamus.").
In certain circumstances, we have recognized that incidental trial court rulings can be corrected by writ of mandamus. See, e.g., Geary v. Peavy, 878 S.W.2d 602, 603 (Tex.1994) (concluding that mandamus was appropriate to resolve jurisdictional dispute between Texas and Minnesota courts that led to conflicting child custody orders); State Bar of Tex. v. Jefferson, 942 S.W.2d 575, 575-76 (Tex. 1997) (granting mandamus relief after concluding that trial court was without jurisdiction to issue temporary restraining order staying administrative grievance proceeding).
In each of these instances, the Court exercised its jurisdiction not merely because inaction would have caused hardship to the parties, but because special, unique circumstances mandated the Court's intervention. Here, the possibility that Entergy will be forced to endure the "hardship" of a full-blown trial if we decline to issue a writ of mandamus is, in itself, not sufficient to dictate mandamus relief. But Entergy's hardship is not the only factor we consider in deciding whether mandamus is appropriate. We must also consider that if Entergy is correct in its assertion that the PUC has exclusive jurisdiction, permitting a trial to go forward would interfere with the important legislatively mandated function and purpose of the PUC. Cf. State v. Sewell, 487 S.W.2d 716, 719 (Tex.1972) (granting mandamus to vacate injunction barring Grievance Committee proceedings because injunction was "an interference with the grievance procedures authorized by ... the State Bar Act" and restating that mandamus may be appropriate when "the orderly processes of government" are disturbed); U.S. Alkali, 325 U.S. at 203-04, 65 S.Ct. 1120 (concluding that extraordinary writ would be appropriate to correct federal district court's denial of motion to dismiss complaint if Federal Trade Commission had jurisdiction). In short, if the PUC has exclusive jurisdiction in this dispute, the judicial appropriation of state agency authority would be a clear disruption of the "orderly processes of government." This disruption, coupled with the hardship imposed on Entergy by a postponed appellate review, warrants an exception to our general proscription against using mandamus to correct incidental trial court rulings.
III. Applicable Law
Entergy asserts that the PUC has exclusive jurisdiction over the dispute between Shearer and Entergy. An agency has exclusive jurisdiction when the Legislature has granted that agency the sole authority to make an initial determination in a dispute. Subaru of Am. v. David McDavid Nissan, 84 S.W.3d 212, 221 (Tex. 2002); Cash Am. Int'l, Inc. v. Bennett, 35 S.W.3d 12, 18 (Tex.2000). Furthermore, "[i]f an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking review of the agency's action." Cash Am., 35 S.W.3d at 15. Until the party has exhausted all administrative *322 remedies, the trial court lacks subject matter jurisdiction and must dismiss any claim within the agency's exclusive jurisdiction. David McDavid Nissan, 84 S.W.3d at 221 (citing Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex.1992); Tex. Bd. of Exam'rs in Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242, 246 (Tex.1961)). Therefore, if Entergy's assertion that the PUC has exclusive jurisdiction is correct, the trial court lacks jurisdiction over the underlying lawsuit. Our primary inquiry then is whether the PUC has exclusive jurisdiction over the dispute. This is a question of law we review de novo. David McDavid Nissan, 84 S.W.3d at 222.
IV. Analysis
A
We begin our analysis by recognizing the constitutional presumption that district courts are authorized to resolve disputes. Pursuant to the Texas Constitution, a district court's jurisdiction "consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body." Tex. Const. art. V, § 8. An important corollary is that district courts are courts of general jurisdiction and generally have subject matter jurisdiction absent a showing to the contrary. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.2000). Notably, a similar presumption does not exist for administrative agencies, which may exercise only those powers the law confers upon them in clear and express statutory language and those reasonably necessary to fulfill a function or perform a duty that the Legislature has expressly placed with the agency. David McDavid Nissan, 84 S.W.3d at 220; Pub. Util. Comm'n v. GTE-Southwest, Inc., 901 S.W.2d 401, 407 (Tex.1995).
The next step in the inquiry is to determine if the "Constitution or other law" conveys exclusive, appellate, or original jurisdiction on another court or administrative agency. Tex. Const. art. V, § 8. Here, Entergy asserts that PURA grants the PUC exclusive jurisdiction over Shearer's claims.
Whether an agency has exclusive jurisdiction depends on statutory interpretation. David McDavid Nissan, 84 S.W.3d at 221. An agency has exclusive jurisdiction "`when a pervasive regulatory scheme indicates that Congress intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed.'" Id. (quoting Humphrey, Comment, Antitrust Jurisdiction and Remedies in an Electric Utility Price Squeeze, 52 U. Chi. L.Rev. 1090, 1107 n. 3 (1985)). The same rule applies when our courts determine the intent of the Legislature. David McDavid Nissan, 84 S.W.3d at 221.
In construing PURA or any other statute, our objective is to determine and give effect to the Legislature's intent. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003). We look to the "`plain and common meaning of the statute's words.'" Id. (quoting State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002)). When a statute's meaning is unambiguous, we interpret that statute according to its plain language. Id
PURA's language is determinative in assessing whether the Legislature created a pervasive regulatory scheme intended to be the exclusive means by which the rates charged by successor entities as a result of a merger of electric utilities are addressed. Section 31.001 of PURA, a *323 general provision entitled "Legislative Findings; Purpose of Subtitle," states:
(a) This subtitle is enacted to protect the public interest inherent in the rates and services of electric utilities. The purpose of this subtitle is to establish a comprehensive and adequate regulatory system for electric utilities to assure rates, operations, and services that are just and reasonable to the consumers and to the electric utilities.
PURA § 31.001(a) (emphasis added). In addition, section 32.001 of PURA describes the PUC's jurisdiction as follows:
(a) Except as provided by Section 32.002 [governing municipally owned utilities], the Commission has exclusive original jurisdiction over the rates, operations, and services of an electric utility in:
(1) areas outside a municipality; and
(2) areas inside a municipality that surrenders its jurisdiction to the Commission under Section 33.002.
PURA § 32.001(a) (emphasis added). Thus, the statutory description of PURA as "comprehensive" demonstrates the Legislature's belief that PURA would comprehend all or virtually all pertinent considerations involving electric utilities operating in Texas. That is, PURA is intended to serve as a "pervasive regulatory scheme" of the kind contemplated in David McDavid Nissan.
Furthermore, section 32.001's specific grant to the PUC of "exclusive original jurisdiction" makes it clear that the Legislature intended this dispute regarding utility rates, operations, and services to begin its journey toward resolution at the PUC. Our conclusion that the phrase "exclusive original jurisdiction" grants the PUC exclusive jurisdiction is consistent with this Court's earlier jurisprudence. In David McDavid Nissan, we held that statutory language granting the Texas Motor Vehicle Board "exclusive original jurisdiction" meant exactly what it said: that the Texas Motor Vehicle Board has exclusive jurisdiction over matters governed by the Texas Motor Vehicle Commission Code. David McDavid Nissan, 84 S.W.3d at 223. We see no reason why identical language in PURA should be assigned a different meaning.
In cases like this one, where the Legislature clearly expresses its intent through statutory language, our exclusive jurisdiction inquiry is uncomplicated. Here, the Legislature's language demonstrates that it intended PURA to be the exclusive means of regulating electric utilities in Texas. The Legislature's description of PURA as "comprehensive," coupled with the fact that PURA regulates even the particulars of a utility's operations and accounting, demonstrates the statute's pervasiveness. See, e.g., PURA § 14.202 (allowing PUC to audit utilities as frequently as needed); PURA § 36.056 (empowering PUC to establish proper rates of depreciation, amortization, and depletion); PURA § 38.004 (mandating clearance requirements for transmission and distribution lines). Accordingly, we conclude that the PUC has exclusive jurisdiction over the dispute between Entergy and Shearer.
B
Shearer attempts to categorize the Merger Agreement as a mere private contract. Shearer contends that because the plaintiffs are not directly challenging a PUC order, the PUC has no jurisdiction to settle the dispute. However, this argument fails to recognize that while the Merger Agreement may have begun as a private contract, it took on an administrative character when the parties agreed that the merger savings would be implemented "in post-merger Gulf States rate proceedings" filed with the PUC and requested *324 that their agreement be placed in the PUC order resolving Docket No. 11292.
The Third Court of Appeals addressed a similar situation in Public Utility Commission of Texas v. Southwestern Bell Telephone Co., 960 S.W.2d 116, 119-20 (Tex. App.Austin 1997, no pet.):
We hold that the power to conduct adjudicative proceedings, expressly delegated to the Commission in PURA section 16, necessarily includes the following incidental powers: (1) a power to accept and act upon an agreement between the parties that removes from dispute and litigation a subsidiary issue of fact or law, such as the parties' agreement pertaining to attorney's fees in this instance; (2) a power to interpret the agreement when a dispute arises subsequently in that regard; and (3) a power to formulate and award a reasonable remedy necessary to effectuate the agreement.
On rehearing, Southwestern Bell argued that the PUC, in interpreting the attorneys' fees agreement, was adjudicating a private contract right. The court of appeals responded:
The agency record in the present case reveals, however, that the attorneys' fee agreement was more than a private agreement. It affected directly the public interest. The Commission's acceptance of the agreement ... was necessary to give the agreement the administrative effect required by the litigants. Based upon the Commission's acceptance of the agreement, the Commission formulated and issued a final order ... fixing public utility rates. We have held PURA section 16 and Texas Government Code section 2001.056 vested authority in the Commission for taking this administrative action. These statutes also placed in the Commission a power to decide as a regulatory matter the dispute that arose subsequently regarding the agreement, and to award an administrative remedy to rectify any administrative wrong and any resulting administrative consequences.
Id. at 122-23 (emphasis in original). Likewise, in this case, the Merger Agreement between Entergy, GSU, and the various other parties affected the public interest and, more importantly, was the basis for the PUC's regulatory approval of the Entergy/GSU merger. Without the PUC order implementing it, the Merger Agreement was practically meaningless. That is, the very administrative character that gives the Merger Agreement effect also gives the PUC the authority to adjudicate disputes arising from the agreement. Cf. Cajun Elec. Power Coop., Inc. v. F.E.R.C., 924 F.2d 1132, 1135 (D.C.Cir.1991) ("Any agreement that must be filed and approved by an agency loses its status as a strictly private contract and takes on a public interest gloss....").
V. Conclusion
We conclude that the PUC has exclusive jurisdiction over the dispute between Entergy and Shearer. Accordingly, we conditionally grant the writ of mandamus and direct the trial court to vacate its August 13, 2002 order denying Entergy's motion to dismiss, and to dismiss Shearer's suit against Entergy for lack of subject matter jurisdiction. We are confident that the trial court will promptly comply, and the writ will issue only if it does not.
NOTES
[1] The defendants in the underlying lawsuit and the relators in this original proceeding are Entergy Corporation and its subsidiary Entergy Gulf States, Inc. Unless otherwise indicated, our references to "Entergy" encompass both Entergy Corporation and Entergy Gulf States, Inc. The plaintiffs below and the real parties in interest in this proceeding are Dale Shearer; Schooner Restaurants, Inc.; Megas Enterprises, Inc.; Texas Cattle Baron Steak House, Inc.; and Michael G. Pearson. We refer to them collectively as "Shearer." Shearer requested class certification in the underlying lawsuit; however, no class certification order has been entered.
[2] In addition to Entergy and GSU, the signatories to the agreement were the General Counsel of the PUC, the International Brotherhood of Electrical Workers Local 2286, and Texas Industrial Energy Consumers. The Office of the Public Utility Counsel was not a signatory but did sign a document stating that it was not opposed to a PUC order consistent with the agreement.
[3] Section 42, which governed rate changes proposed by the PUC, is now codified at Tex. Util.Code §§ 36.151-156. Section 43, which governed rate changes proposed by a utility, is now codified at Tex. Util.Code §§ 36.101-111.
[4] The other signatories were Texas Industrial Energy Consumers and CLECO Marketing and Trading L.L.C. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276195/ | 142 S.W.3d 504 (2004)
In the Interest of M.C.C., A Child.
No. 2-02-366-CV.
Court of Appeals of Texas, Fort Worth.
July 22, 2004.
*506 Greg Abbott, Atty. Gen., Barry R. McBee, First Asst. Atty. Gen., Rhonda Amkraut Pressley, Chief, Appeals and Research Section and John B. Worley, Asst. Atty. Gen., Austin, for Appellant.
Stephanie A. Foster, Arlington, for Appellee.
PANEL A: CAYCE, C.J.; GARDNER and McCOY, JJ.
OPINION
ANNE GARDNER, Justice.
Appellant, the Office of Attorney General (OAG), appeals from a judgment ordering Appellee Toby Allen Collins to pay $19,531.33 in child support arrearages, an amount which includes prejudgment interest calculated at a rate of six percent simple interest per annum. In one issue, the OAG argues that the trial court erred in its interpretation and application of section 157.265 of the Texas Family Code, as amended in 2001, which decreased the rate for the accrual of prejudgment interest on unpaid child support from twelve percent per year to six percent. See TEX. FAM.CODE ANN. § 157.265 (Vernon 2002). We will affirm.
I. Background Facts and Procedural History
The facts are undisputed. Appellee and Allyn Collins were divorced in 1993. Appellee and Allyn are the parents of M.C.C., who was born on January 7, 1981. The *507 divorce decree ordered Appellee to pay $525 per month in child support, in $242.30 bi-weekly payments, beginning on July 30, 1993. Because Appellee had not fully paid his court-ordered child support, in December 2001, the OAG filed a motion for enforcement to confirm and reduce Appellee's unpaid child support to a cumulative money judgment. This was the first enforcement action filed in the case. The OAG alleged that, since July 30, 1993, Appellee's court-ordered child support had accrued in the amount of $47,678.18 and had accrued interest in the amount of $12,577.94. Further, the OAG alleged that Appellee had paid only $32,175.50 of the total amount, which left a total arrearage, including interest, of $28,080.62 as of November 25, 2001.
On May 31, 2002, the Title IV-D master heard the OAG's motion and, contrary to the OAG's position, signed a proposed order confirming arrearages, including interest, in the amount of $19,531.33 as of April 30, 2002. In calculating this amount, the master calculated interest on the delinquent child support at the rate of six percent per annum from the date each payment first became due. The OAG filed a notice of appeal to the district court from the master's recommendation, arguing that the Title IV-D master improperly applied the six percent interest rate.
The only issue in dispute in the appeal to the trial court was whether the interest on Appellee's unconfirmed arrearages ran at twelve percent or six percent before January 1, 2002, the date the statute reducing the interest rate from twelve percent to six percent went into effect. See id. § 157.265 historical note [Act of May 18, 2001, 77th Leg., R.S., ch. 1491, § 3(a), 2001 Tex. Gen. Laws 5294, 5295]. During the hearing, Appellee's attorney acknowledged that the master "took the interest that was [alleged] in the AG's pleadings and just cut it in half, reducing it from the [twelve] percent to the six percent."
On August 1, 2002, the trial court signed an order adopting the master's proposed order as the order of the court. The court also signed an order confirming and reducing Appellee's delinquent child support to a cumulative money judgment. Appellant filed a motion for new trial and requested findings of fact and conclusions of law. After a hearing, the trial court denied the motion for new trial and later filed findings of fact and conclusions of law. The trial court concluded that "the plain meaning of § 157.265 of the Texas Family Code means that any arrearages that are confirmed and reduced to a money judgment after the date of January 1, 2002, will be assessed interest at six percent (6%)." Thus, the court concluded that Appellee "is in arrears in the amount of $19,531.33 with an interest rate of 6% per annum, payable in the amount of $525.00 each month beginning on the 1st day of June, 2002, payable on or before that date and on or before the same day each month thereafter until the arrearage is paid in full."
II. Sole Issue: Construction of Section 157.265
In this appeal, the OAG complains that the amendment to family code section 157.265, which lowered the interest rate on delinquent child support from twelve to six percent, applies only to interest accruing after the Act's effective date of January 1, 2002 and that interest on unconfirmed delinquent arrearages existing before January 1, 2002 accrued at the previous twelve percent rate up until that date. The OAG urges us to reverse the judgment and remand the case for a recalculation of arrearages because the trial court improperly reduced by half the unconfirmed interest that had accrued before January 1, 2002.
*508 Specifically, the OAG argues that we should apply the twelve percent rate to Appellee's child support arrearages before January 1, 2002 and the six percent rate to those arrearages after January 1, 2002 because the legislature intended the 2001 amendment to be applied prospectively only and because the Code Construction Act prescribes that it be so construed. Alternatively, the OAG asserts that, even if we were to determine that section 157.265 presents a clear textual indication of retroactive applicability, we cannot so construe the statute without violating family code section 157.262(a)'s prohibition of a trial court's retroactive modification of the amount of child support arrearages and the Texas Constitution's general prohibition against retroactive laws. For the following reasons, we reject the OAG's construction of family code section 157.265.
III. Applicable Portions of Family Code Section 157
Before addressing the interpretation of section 157.265, we think it is helpful to place that section in context with other pertinent provisions of the family code. Chapter 157 is titled "Enforcement," and sections 157.261-157.269 comprise the portion of chapter 157 concerning "Judgment[s] and Interest." TEX. FAM.CODE ANN. §§ 157.261-157.269 (Vernon 2002). With respect to interest, section 157.267 states that "[a]ccrued interest is part of the child support obligation and may be enforced by any means provided for the collection of child support." Id. § 157.267. At present, interest on child support accrues in the following manner:
(a) Interest accrues on the portion of delinquent child support that is greater than the amount of the monthly periodic support obligation at the rate of six percent simple interest per year from the date the support is delinquent until the date the support is paid or the arrearages are confirmed and reduced to money judgment.
(b) Interest accrues on child support arrearages that have been confirmed and reduced to money judgment as provided in this subchapter at the rate of six percent simple interest per year from the date the order is rendered until the date the judgment is paid.
(c) Interest accrues on a money judgment for retroactive or lump-sum child support at the annual rate of six percent simple interest from the date the order is rendered until the judgment is paid.
Id. § 157.265.
Section 157.263 authorizes an enforcement action to reduce unpaid child support to judgment and states in pertinent part:
(a) If a motion for enforcement of child support requests a money judgment for arrearages, the court shall confirm the amount of arrearages and render one cumulative money judgment.
(b) A cumulative money judgment includes:
(1) unpaid child support not previously confirmed;
(2) the balance owed on previously confirmed arrearages or lump sum or retroactive support judgments;
(3) interest on the arrearages; and
(4) a statement that it is a cumulative judgment.
Id. § 157.263. In rendering a money judgment, a trial court "may not reduce or modify the amount of child support arrearages." Id. § 157.262(a). "A money judgment rendered as provided in this subchapter may be enforced by any means available for the enforcement of a judgment for debts." Id. § 157.264(a). Thus, the trial court may render an order requiring that a child support obligor's income be withheld or that he or she make periodic *509 payments to the parent owed back child support. Id. § 157.262(b).
IV. History of Section 157.265
As the Supreme Court of Texas stated in In re A.D., "Since 1974 the Legislature has amended the Family Code many times, adding and enhancing the methods courts may use to enforce their child-support orders. These new and improved enforcement mechanisms provide remedies for continuing violations of established duties." 73 S.W.3d 244, 248 (Tex.2002). This observation certainly holds true for family code section 157.265, which has been amended four times since it was enacted in 1991. See TEX. FAM.CODE ANN. § 157.265.
In 1991, the Texas Legislature enacted former family code section 14.34 to govern the accrual of prejudgment interest on unpaid child support payments, providing that prejudgment interest accrued on unpaid child support obligations "at the rate of ten percent a year computed monthly." Act of June 16, 1991, 72d Leg., R.S., ch. 467, 1991 Tex. Gen. Laws 1693, 1693 (amended 1993, 1995, 1999, & 2001) (current version at TEX. FAM.CODE ANN. § 157.265). This enactment codified Texas common law, which had "favored the award of prejudgment interest on awards for delinquent child support." Castle v. Harris, 960 S.W.2d 140, 143 (Tex.App.-Corpus Christi 1997, no pet.); see, e.g., Medrano v. Medrano, 810 S.W.2d 426, 428 (Tex.App.-San Antonio 1991, no writ) (holding that appellant was entitled to prejudgment interest on unpaid child support arrearages "as a matter of right" because such payments constituted "an ascertainable sum of money[,] ... determined to have been due and payable at a date certain prior to judgment") (citing Howze v. Surety Corp. of Am., 584 S.W.2d 263, 268 (Tex.1979)). One commentator noted that, in enacting a rate of ten percent per year computed monthly, "[t]he legislature has added another tool to the child caretakers in their plight to collect overdue support, but it has also added a computation problem which most family practitioners are not equipped to solve." James E. Fordham, Jr. & Thomas H. Shelby, III, A Matter of Interest: Adding Interest to Child Support Arrears, 56 TEX. B.J. 664, 666 (1993).
Consequently, the legislature amended section 14.34, effective September 1, 1993, to allow prejudgment interest to accrue "at the rate of 12 percent simple interest per year from the date the support is delinquent until the date the support is paid, regardless of whether the amount ... had been reduced to judgment." Act of May 15, 1993, 73d Leg., R.S., ch. 150 §§ 1, 3, 1993 Tex. Gen. Laws 302, 302 (amended 1995, 1999, & 2001) (current version at TEX. FAM.CODE ANN. § 157.265). In place of former section 14.34, the legislature enacted section 157.265(a), which continued the prejudgment interest rate of twelve percent per year simple interest.[1] Act of April 20, 1995, 74th Leg., R.S., ch. 20, §§ 1, 4, 1995 Tex. Gen. Laws 113, 184, 282 (amended 1999 & 2001) (current version at TEX. FAM.CODE ANN. § 157.265(a)). In 1999, the legislature amended section 157.265(a) to clarify that "[i]nterest accrues on the portion of delinquent child support that is greater than the amount of the monthly periodic child support obligation at the rate of 12 percent simple interest per year...." Act of June 18, 1999, 76th Leg., R.S., ch. 943, § 1, 1999 Tex. Gen. Laws 3679, 3679 (amended 2001) (current version at TEX. FAM.CODE ANN. § 157.265(a)).
*510 As one commentary notes, the twelve percent rate was apparently reasonable at the time it was enacted, but with time, the legislature determined that "imposing an interest rate on unpaid child support arrears far beyond market rate is counterproductive," resulting only in "a greater level of noncompliance." JOHN J. SAMPSON ET AL., TEXAS FAMILY CODE ANNOTATED § 157, Introductory Cmt., 677 (13th ed.2003). In other words, because the high interest rate was discouraging, rather than promoting, compliance with child support orders, the legislature again amended section 157.265 in the 2001 regular session, decreasing the rate of interest accruing on child support payments from twelve percent to six percent simple interest per year. TEX. FAM.CODE ANN. § 157.265(a).[2] Section 3 of the 2001 enabling legislation concerns the effective date of the statute and provides for the determination of the applicable rate as follows:
(a) This Act takes effect January 1, 2002.
(b) The change in law made by this Act applies only to:
(1) a child support payment that becomes due on or after the effective date of this Act; and
(2) unpaid child support that became due before the effective date of this Act and for which a court has not confirmed the amount or arrearages and rendered a money judgment.
(c) A money judgment for child support rendered before the effective date of this Act is governed by the law in effect on the date the judgment was rendered, and the former law is continued in effect for that purpose.
Id. § 157.265 historical note [Act of May 18, 2001, 77th Leg., R.S., ch. 1491, § 3, 2001 Tex. Gen. Laws 5294, 5295]. This appeal concerns the construction of subsections 3(a) and (3)(b)(2). See id.
V. Interpreting Section 157.265
Because construction of section 157.265 presents a question of law, we review this issue under a de novo standard. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989) (holding statutory construction is a question of law); Rogers v. City of Fort Worth, 89 S.W.3d 265, 274 (Tex.App.-Fort Worth 2002, no pet.). We are "not to second-guess the policy choices that inform our statutes or to weigh the effectiveness of their results; rather, our task is to interpret those statutes in a manner that effectuates the Legislature's intent." McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex.2003); see Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex.1999); In re E.D.L., 105 S.W.3d 679, 685 (Tex.App.-Fort Worth 2003, pet. denied).
A. Did the Legislature Expressly Make Section 157.265 Retrospective?
In determining the legislature's intent, we first look to the statute's plain and common meaning and presume that the legislature intended the plain meaning of its words. TEX. GOV'T CODE ANN. § 311.011(a) (Vernon 1998) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."); Fleming Foods v. Rylander, 6 S.W.3d 278, 282 (Tex.1999). Further, in construing a statute, regardless of whether the statute is ambiguous, *511 we may consider among other matters the: (1) object sought to be attained; (2) circumstances under which the statute was enacted; (3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) consequences of a particular construction; (6) administrative construction of the statute; and (7) title (caption), preamble, and emergency provision. TEX. GOV'T CODE ANN. § 311.023; see also Brown v. Owens, 674 S.W.2d 748, 750 (Tex.1984) (In determining the legislature's intent, "we must consider the entire Act, its nature and object, and the consequences which follow from each construction.").
"A statute is presumed to be prospective in its operation unless expressly made retrospective." TEX. GOV'T CODE ANN. § 311.022; see also TEX. CONST. art. I, § 16 ("No ... retroactive law ... shall be made."). Similarly, the Supreme Court of Texas states the rule regarding retrospective application of statutory provisions as follows: "[S]tatutes [will not be applied] retrospectively [unless] it appears by fair implication from the language used that it was the intention of the Legislature to make it applicable to both past and future transactions." State v. Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d 707, 708-09 (1943); see Rice v. Louis A. Williams & Assoc., Inc., 86 S.W.3d 329, 335 (Tex.App.-Texarkana 2002, pet. denied).
According to section 3(a) of the historical and statutory notes, the effective date of the 2001 amendment to section 157.265 is January 1, 2002. See TEX. FAM.CODE ANN. § 157.265 historical note [Act of May 18, 2001, 77th Leg., R.S., ch. 1491, § 3(a), 2001 Tex. Gen. Laws 5294, 5295]. Section 3(b) identifies the two categories of child support payments to which the new six percent simple interest rate applies: (1) "child support that becomes due on or after [January 1, 2002]" and (2) "unpaid child support that became due before [January 1, 2002] and for which a court has not confirmed the amount of arrearages and rendered a money judgment." See TEX. FAM.CODE ANN. § 157.265 historical note [Act of May 18, 2001, 77th Leg., R.S., ch. 1491, § 3(b), 2001 Tex. Gen. Laws 5294, 5295] (emphasis added). By stating that "[t]he change in law made by this Act applies only to" these two categories of child support payments, the legislature indicated its intent to limit the applicability of the new six percent rate to these two classes of child support payments. See id. (emphasis added).
The OAG contends that the six percent interest rate on delinquent child support applies only to interest accruing after the Act's effective date of January 1, 2002. In support of this position, the OAG cites the Code Construction Act's presumption against a statute's retroactive application and argues that section 157.265 does not expressly state that it retroactively changes the rate on all unconfirmed arrearages owed prior to January 1, 2002. See TEX. GOV'T CODE ANN. § 311.022.
To further its argument, the OAG cites Coastal Industrial Water Authority v. Trinity Portland Cement Division, General Portland Cement Co. for the proposition that an act changing a statutory interest rate is presumed to be prospective, absent a clear textual indication of retroactivity. 563 S.W.2d 916, 918-19 (Tex.1978) (construing 1975 version of post-judgment interest statute). We do not find the OAG's reliance on Coastal to be persuasive. Coastal states, "[T]he provision in the amended statute that judgments shall bear interest at the rate of nine percent `from and after the date of such judgment' plainly suggests that the rate shall be applied prospectively only." 563 S.W.2d at 918 (emphasis added). While Coastal concerned *512 the 1975 amendment to the general post-judgment interest statute increasing the interest rate from six percent to nine percent, the language of the 1975 statute at issue in Coastal differs significantly from the language at issue in this appeal. Id. at 916-17; see also TEX. FIN.CODE ANN. § 304.302 (Vernon Supp.2004) (stating judgment interest chapter in the finance code is inapplicable to interest accruing under family code section 157.265). Thus, Coastal does not aid us in our interpretation of the language found in section 3(b)(2) of section 157.265's historical and statutory notes. See TEX. FAM.CODE ANN. § 157.265 historical note [Act of May 18, 2001, 77th Leg., R.S., ch. 1491, § 3(b)(2), 2001 Tex. Gen. Laws 5294, 5295].
The OAG also refers us to In re A.R.J., in which the Dallas Court of Appeals addressed the exact issue presenting itself in the case in hand. 97 S.W.3d 833, 834 (Tex.App.-Dallas 2003, no pet.). The court in A.R.J. stated, "Clearly, under a plain reading of section 3(b)(2), the six percent interest rate applies to unconfirmed arrears prior to January 1, 2002." Id. Despite this statement, the court concluded that nothing in section 3 of the historical and statutory notes "suggest[s] that the legislature intended the changed rate to apply retroactively." Id. at 835. Consequently, the court held that "unpaid child support obligations that have not been confirmed and reduced to judgment as of January 1, 2002 are subject to the twelve percent interest rate until January 1, 2002," at which time "interest begins accruing on those unpaid child support obligations at the new six percent rate." Id.
As Appellee points out in his brief, the courts of appeals in Waco and Amarillo the only other courts to address the precise issue presented in this casehave both rejected A.R.J.'s reasoning. See In re A.B.L., No. 10-02-267-CV, 2003 WL 21470071, at *1 (Tex.App-Waco June 25, 2003, no pet.) (mem.op.); In re Hurd, No. 07-02-0334-CV, 2003 WL 1961142, at *2 & n. 1 (Tex.App.-Amarillo Apr.28, 2003, no pet.). In Hurd, the Amarillo court, in concluding the legislature did not intend a retroactive application of section 157.265, observed that A.R.J. failed to "mention the passage in the enabling legislation stating that the change `applies to ... unpaid child support that became due before [January 1, 2002] and for which a court has not confirmed the amount of arrearages and rendered a money judgment.'" 2003 WL 1961142, at *2 n. 1; see TEX. FAM.CODE ANN. § 157.265 historical note [Act of May 18, 2001, 77th Leg., R.S., ch. 1491, § 3(b)(2), 2001 Tex. Gen. Laws 5294, 5295].
Further, Hurd criticizes A.R.J. for "read[ing] into the enabling legislation wording that divided unpaid child support into different categories, those categories being unpaid support that accrued before January 1, 2002, and unpaid support that accrued after January 1st," with the former accruing interest at twelve percent and the latter at six percent, which is the same interpretation by the OAG in this case. 2003 WL 1961142, at *2. Instead, both A.B.L. and Hurd conclude that section 157.265 as written applies retrospectively. A.B.L., 2003 WL 21470071, at *1; Hurd, 2003 WL 1961142, at *2. We agree that A.R.J. ignored the plain, express language of section 3(b)(2), which demonstrates the legislature's intent to have retrospective application of section 157.265.
Neither A.B.L. nor Hurd delve into the legislative history behind the 2001 amendment to section 157.265, but the OAG argues that legislative history supports the view that section 157.265 is "purely prospective." We disagree. Senate Bill 776 was introduced as an Act "relating to the *513 collection of accrued interest on child support payments." Tex. S.B. 776, 77th Leg., R.S. (2001). After the bill moved from the Senate to the House, it emerged from the House Juvenile Justice and Family Issues Committee revamped as an Act "relating to the accrual of interest on child support." Tex. Comm. Substitute S.B. 776, 77th Leg., R.S. (2001). The text of Committee Substitute S.B. 776 provided that
[t]he change in law made by Section 157.265, Family Code, as amended by this Act, applies only to a child support payment that becomes due on or after the effective date of this Act. A child support payment that became due before the effective date of this Act is governed by the law in effect on the date the child support payment became due, and the former law is continued in effect for that purpose.
Id. Committee Substitute S.B. 776 stated, "This Act takes effect January 1, 2002. Id.
Representative Toby Goodman, who sponsored Committee Substitute S.B. 776 offered amending language to the bill on May 17, 2001:
The change in law made by Section 157.265, Family Code, as amended by this Act, applies only to a child support payment that becomes due or money judgment for child support that is rendered on or after the effective date of this Act. A child support payment that became due or a money judgment for child support that was rendered before the effective date of this Act is governed by the law in effect on the date the child support payment became due or the money judgment was rendered, and the former law is continued in effect for that purpose.
Tex. Comm. Substitute S.B. 776, 77th Leg., R.S. (2001) (May 17, 2001 amendment by Goodman) (available at http://www.capitol.state.tx.us). At the time Representative Goodman offered the amendment, he stated that it "clears up some language in the effective date." House Debate on S.B. 776, 77th Leg., R.S. (available at http://www.house.state.tx.us/media/chamber/77.htm, House Archived Chamber Broadcasts Part 4, at 13:18-14:08, May 17, 2001). The amendment was adopted without further comment or objection. Id.
On May 18, 2001, Representative Goodman offered another amendment to Committee Substitute S.B. 776, which contains the language enacted in section 157.265's historical and statutory notes. Tex. Comm. Substitute S.B. 776, 77th Leg., R.S. (2001) (May 18, 2001 amendment by Goodman) (available at http://www.capitol.state.tx.us); see TEX. FAM.CODE ANN. § 157.265 historical note [Act of May 18, 2001, 77th Leg., R.S., ch. 1491, § 3, 2001 Tex. Gen. Laws 5294, 5295]. Representative Goodman stated at the time he offered the second amendment on the House floor that "this clears up the effective date that was changed yesterday and was changed before, so the Attorney General's office can calculate interest." House Debate on S.B. 776, 77th Leg., R.S., (available at http://www.house.state.tx.us/media/chamber/77.htm, House Archived Chamber Broadcasts Part 2, at 1:52:31-1:53:22, May 18, 2001). This amendment likewise was adopted without further comment or objection. Id.
The enacted version of S.B. 776 expressly states that the new six percent interest rate applies to "unpaid child support that became due before [January 1, 2002] and for which a court has not confirmed the amount of arrearages and rendered a money judgment"; whereas, the express language in both the original version of Committee Substitute S.B. 776 and the version adopting Representative Goodman's first amendment would not have *514 subjected this category of child support to the new six percent rate. TEX. FAM.CODE ANN. § 157.265 historical note [Act of May 18, 2001, 77th Leg., R.S., ch. 1491, § 3(b)(2), 2001 Tex. Gen. Laws 5294, 5295] (emphasis added). We must presume that the legislature chose its words carefully, recognizing that every word in a statute was included for some purpose and that every word excluded was omitted for a purpose. In re M.J.M.L., 31 S.W.3d 347, 354 (Tex.App.-San Antonio 2000, pet. denied); Renaissance Park v. Davila, 27 S.W.3d 252, 256 (Tex.App.-Austin 2000, no pet.). Thus, upon a close examination of the evolution of the Act's language, we think section 157.265, as enacted, expresses the legislature's intent to subject child support arrearages existing before January 1, 2002 that are not confirmed and reduced to a money judgment until on or after that date to the six percent interest rate.
The OAG directs us to other legislative history, namely the bill analysis of section 157.265, as enacted, which reads in relevant part as follows:
SECTION 1. Amends Section 157.265, Family Code, to reduce the rate of accrual of interest on child support arrearage from 12 to six percent simple interest per year.
. . . .
SECTION 3. Effective date: January 1, 3003.[sic]
Makes Application of this Act prospective.
SENATE RESEARCH CENTER, BILL ANALYSIS, Tex. S.B. 776, 77th Leg., R.S. (2001). The bill analysis, however, does not analyze section 3(b)(2)'s clear and express statement that the six percent rate applies to "unpaid child support that became due before [January 1, 2002] and for which a court has not confirmed the amount of arrearages and rendered a money judgment." Id.; TEX. FAM.CODE ANN. § 157.265 historical note [Act of May 18, 2001, 77th Leg., R.S., ch. 1491, § 3(b)(2), 2001 Tex. Gen. Laws 5294, 5295] (emphasis added).
In short, we are not persuaded that this terse and largely unexplained shard of legislative history clarifies or better expresses the legislature's intent than the express language of section 157.265 and its historical and statutory notes, as enacted by the 77th Legislature. To the extent the Senate Research Center Bill Analysis seemingly conflicts with the express language of the statute, the enacted language controls. See, e.g., Robinson v. Budget Rent-A-Car Sys., Inc., 51 S.W.3d 425, 434 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (stating that it is inappropriate to use legislative history in determining legislative intent when such legislative history "would alter and disregard the express terms of a clear and unambiguous code provision").
From the plain language of section 3(b)(2), we conclude that the legislature clearly stated its intent to apply the reduced six percent prejudgment interest rate to arrearages existing before January 1, 2002 that had not been confirmed and reduced to a money judgment as of that date. We agree with Hurd that, in reading section 3's language in context, giving effect to its plain meaning, "one cannot but read it as fairly implying that the reduction was to apply to both past and future arrearages as long as they had yet to be confirmed and reduced to an actual money judgment." 2003 WL 1961142, at *2; see Humble Oil & Refining Co., 141 Tex. 40, 169 S.W.2d at 708-09; Rice, 86 S.W.3d at 335; see also A.B.L., 2003 WL 21470071, at *1. We hold that, as written, section 157.265 expresses the legislature's intent that it be applied retrospectively. See A.B.L., 2003 WL 21470071, at *1; Hurd, 2003 WL 1961142, at *2.
*515 B. Can Section 157.265 Be Construed to Apply Retrospectively Without Violating Other Provisions in the Family Code or Article I, Section 16 of the Texas Constitution?
Having determined that section 157.265 expresses legislative intent of retrospective applicability, we must determine whether such a construction can be given to section 157.265, in light of statutory and constitutional provisions. "In enacting a statute, it is presumed that: (1) compliance with the constitutions of this state and the United States is intended; (2) the entire statute is intended to be effective; (3) a just and reasonable result is intended; (4) a result feasible of execution is intended; and (5) public interest is favored over any private interest." TEX. GOV'T CODE ANN. § 311.021. The OAG argues that retrospective application of section 157.265 conflicts with the Texas Family Code, violates article I, section 16 of the Texas Constitution, and leads to foolish or absurd results. See id. § 311.021(1)-(3). We will address each of these arguments in turn.
1. Conflicts with the Family Code?
Because we determine legislative intent concerning money judgments and interest from the entire Act, and not just from isolated portions of the Act, we must examine other pertinent sections of the family code. See TEX. FAM.CODE ANN. §§ 157.261-157.269; State ex rel. Dep't of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). Family Code section 157.261(a) states, "A child support payment not timely made constitutes a final judgment for the amount due and owing, including interest as provided in this chapter." TEX. FAM.CODE ANN. § 157.261(a). Section 157.267 provides, "Accrued interest is part of the child support obligation and may be enforced by any means provided for the collection of child support," while section 157.265 establishes the applicable interest rates to delinquent child support. Id. §§ 157.265, 157.267.
The OAG first argues that we should not interpret section 157.265 to apply retroactively because such a construction would conflict with sections 157.262(a) and 156.401(b) of the family code. See TEX. GOV'T CODE ANN. § 311.021(2); In re Azle Manor, Inc., 83 S.W.3d 410, 414 (Tex.App.-Fort Worth 2002, orig. proceeding [mand. denied]) (stating that statutes appearing to be in conflict should be read to "give effect to both by assigning each a meaning that will permit each to stand"). Section 157.262(a) states that "[e]xcept as provided by this section, . . . in rendering a money judgment, the court may not reduce or modify the amount of child support arrearages." TEX. FAM.CODE ANN. § 157.262(a). Section 156.401(b) provides that a "support order may be modified only as to obligations accruing after the earlier of: (1) the date of the service of citation; or (2) an appearance in the suit to modify." Id. § 156.401(b).
Specifically, the OAG asserts that a retroactive application of section 157.265 conflicts with section 157.262(a) by requiring courts to reduce interest that has previously accrued on child support arrearages that became due before the effective date of the statute. The OAG also contends that such a construction conflicts with section 156.401(b) by thus requiring a trial court to "modify" the interest portion of a delinquent child support obligation that had accrued before the date of service or an appearance in a modification suit.
We are not persuaded by the OAG's argument that a retroactive construction of section 157.265 conflicts with either section 157.262(a) or section 156.401(b). TEX. FAM.CODE ANN. §§ 156.401(b), 157.262(a), 157.265. The issue *516 before us is not whether the trial court impermissibly violated section 157.262(a) by calculating interest based on the reduced interest rate. Id. § 157.262(a). Instead, we must determine whether the legislature, as it did in 2001, can reduce or otherwise modify the interest rate that trial courts are bound to follow in computing interest on child support arrearages.
With respect to calculating and rendering a cumulative judgment, "the trial court acts as `a mere scrivener' who mechanically tallies the amount of arrearages." In re M.C.R., 55 S.W.3d 104, 109 (Tex.App.-San Antonio 2001, no pet.) (citing Williams v. Patton, 821 S.W.2d 141, 153 (Tex.1991) (Phillips, C.J., dissenting)). The trial court has a ministerial duty to confirm the amount of the arrearages plus accrued interest under the applicable statutorily-provided interest rate and render a cumulative money judgment in the total amount due and owing to the obligee. Id. at 110. In rendering a money judgment, a court does not have discretion to increase or reduce the arrearages or the interest. TEX. FAM.CODE ANN. § 157.262(a); see also M.C.R., 55 S.W.3d at 109-110 (holding trial court abused its discretion by only awarding half of the amount of accrued interest owed by the obligor). In this case, the trial court did not reduce or modify the amount of interest that had accrued on Appellee's delinquent child support; rather, in confirming the amount of the arrearage plus the accrued interest, it applied the legislatively-decreased six percent interest rate to the amount of the arrearages.
Likewise, a retroactive construction of section 157.265 does not conflict with section 156.401(b). Section 156.401(b) governs the modification of a trial court's order(s) concerning, among other things, child support. See TEX. FAM.CODE ANN. § 156.401(b). Section 157.263 permits a trial court to enforce a child support order by confirming the amount of child support arrearages, including interest, and rendering a cumulative money judgment. Id. § 157.263. Thus, a trial court does not modify a previous SAPCR order under section 156.401(b) when it renders a money judgment under section 157.263. Id. §§ 156.401(b), 157.263, 157.265.
In this case, the trial court did not modify its 1993 SAPCR order concerning Appellee's child support obligation when it reduced Appellee's unpaid child support payments, including interest, to a money judgment. Rather, the trial court applied the reduced six percent interest rate that the 2001 Legislature made applicable to "unpaid child support that became due before [January 1, 2002] and for which a court has not confirmed the amount of arrearages and rendered a money judgment." See TEX. FAM.CODE ANN. § 157.265 historical note [Act of May 18, 2001, 77th Leg., R.S., ch. 1491, § 3(b), 2001 Tex. Gen. Laws 5294, 5295] (emphasis added).
2. Conflict with the Texas Constitution?
On the issue of whether the legislature can modify the rate of interest applicable to pre-existing child support arrearages which the 2001 Legislature did by lowering the twelve percent rate to six percentthe OAG asks us to examine section 157.265 in light of article I, section 16 of the Texas Constitution. See TEX. CONST. art. I, § 16; TEX. FAM.CODE ANN. § 157.265. In Ex parte Abell, the Supreme Court of Texas wrote,
It is well settled in this state that laws may not operate retroactively to deprive or impair vested substantive rights acquired under existing laws, or create new obligations, impose new duties, or adopt new disabilities in respect to transactions or considerations past. On the other hand, no litigant has a vested right in a statute or rule which affects remedy or is procedural in nature and *517 which affects no vested substantive right. Changes in such statutes or rules are considered remedial in nature and have been held not to violate the provisions of Article 1, sec. 16 of the Constitution.
613 S.W.2d 255, 260 (Tex.1981) (citations omitted); see TEX. CONST. art. I, § 16; Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219-20 (Tex.2002); see also In re Tex. Dep't of Protective & Regulatory Servs., 71 S.W.3d 446, 450 (Tex.App.-Fort Worth 2002, orig. proceeding).
Section 157.261 permits a child support obligee to seek a money judgment for unpaid child support:
(a) A child support payment not timely made constitutes a final judgment for the amount due and owing, including interest as provided in this chapter.
(b) For the purposes of this subchapter, interest begins to accrue on the date the judge signs the order for the judgment unless the order contains a statement that the order is rendered on another specific date.
TEX. FAM.CODE ANN. § 157.261. The OAG argues that because accrued interest is part of the child support obligation and because a child support payment not timely made is deemed to be a "final judgment" under section 157.261(a) for the amount due and owing, including interest, the right to accrued interest on unpaid child support is a statutorily vested right. See id. §§ 157.261(a), 157.265, 157.267. Accordingly, the OAG argues that a retroactive construction of section 157.265 would run afoul of article I, section 16 by depriving a child support obligee of a vested right to the interest that had accumulated at the former twelve percent interest rate.
Despite section 157.261(a), the OAG concedes that a delinquent child support obligation is not a "court's final judgment" because, otherwise, there would be no reason for family code section 157.263, which provides for confirming arrearages and reducing them to a cumulative money judgment by a court. See id. §§ 157.261(a), 157.263. However, the OAG directs us to Gard v. Gard, in which the Supreme Court of Texas stated,
[G]enerally speaking, where a decree is rendered for alimony and is made payable in future instalments, the right to such instalments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the instalments.
150 Tex. 347, 241 S.W.2d 618, 619 (1951) (citing Sistare v. Sistare, 218 U.S. 1, 16-17, 30 S.Ct. 682, 686, 54 L.Ed. 905 (1910)). Applying Sistare in the context of child support, Gard held that, under Idaho law, once the father allowed his child support payments to become delinquent, "[t]hey became the property of the [mother]." Id. at 620. Gard stated, "When the installments matured, her right thereto became `absolute, vested, and protected by the full faith and credit clause of the federal constitution.'" Id. at 620. Gard, however, addresses only delinquent child support obligations and does not speak to the issue of statutorily-imposed prejudgment interest accruing on the delinquent child support obligations or whether, even though the obligations themselves become vested rights, prejudgment interest accruing at a particular rate on the amount due also becomes a vested right of the child support obligee.
Two cases the OAG cites that concern interest accruing on child support arrearages as a vested right are A.B.L. and Hurd. While A.B.L. and Hurd concluded that section 157.265 is retrospective as *518 written, both declined to so construe that section, holding that such a construction would violate article I, section 16 of the Texas Constitution.[3]A.B.L., 2003 WL 21470071, at *1-2; Hurd, 2003 WL 1961142, at *2-3. Hurd examined family code sections 157.261(a) and 157.265 and observed that "the legislature has categorized the status of the delinquent payment as delinquent and due at the instant it becomes unpaid and memorialized the liability, including interest thereon, in a final judgment." 2003 WL 1961142, at *2-3. Thus, Hurd concluded that the legislature "effectively vested the beneficiary of the support payment with the right to receive the amount due, including interest, at the instant it went unpaid. Id. at *3.
While Hurd declined to address "whether in using the term `final judgment' [in section 157.261(a)] the legislature sought to perform the inherently judicial function of adjudicating a dispute," the court reasoned that "because the right to delinquent child support payments, including interest thereon, is incorporated into a final judgment through legislative fiat, then, logically, the right to the payment and interest thereon vests at the instant the delinquency arises." Id. at *2-3 & n. 2. Hurd therefore declined to construe section 157.265 retroactively so as to avoid a construction of the statute that the court reasoned would deprive beneficiaries of their vested rights. Id. at *3; see also A.B.L., 2003 WL 21470071, at *1-2 (following Hurd's conclusion that "interest accruing on child support payments constitutes a vested right"). Consequently, both A.B.L. and Hurd held that trial courts are obligated to use the former twelve percent rate when calculating the interest accruing upon pre-January 1, 2002 delinquencies and the six percent rate to delinquencies accruing thereafter. 2003 WL 21470071, at *2, 2003 WL 1961142, at *3.
Appellee counters these responses, arguing that section 157.265 does not involve a vested right for the child support obligee but, as described by the Corpus Christi Court of Appeals, "sets up procedural guidelines that dictate the rate and manner in which interest applies to child support arrearages." In re W.G.S., 107 S.W.3d 624, 630 (Tex.App.-Corpus Christi 2002, no pet.). Further, Appellee argues that the interest provision found in chapter 157 is but one of the enforcement tools to be utilized in the enforcement of child support orders. Thus, Appellee argues that, contrary to the holdings in A.B.L. and Hurd, a retroactive construction of section 157.265 does not violate the Texas Constitution. See A.D., 73 S.W.3d at 248 ("[T]he courts of appeals have consistently held that the constitutional ban on retroactive laws does not preclude applying new enforcement tools to old support orders.") (citing Harrison v. Cox, 524 S.W.2d 387, 391-92 (Tex.Civ.App.-Fort Worth 1975, writ ref'd n.r.e.) (affirming arrearage judgment including payments due before effective date of statute authorizing cumulative judgments)). Appellee maintains that, because section 157.265 is a remedial and corrective law, we should give meaning to the plain, express language in section 3(b)(2) as ascribed by the legislature and affirm the trial court's application of the six percent rate to all of Appellee's unconfirmed arrearages, even payments that had become delinquent before January 1, 2002.
In its reply brief, the OAG cites Votzmeyer v. Votzmeyer, in which the Corpus Christi Court of Appeals stated that "judgment *519 interest rates are a matter of substantive law." 964 S.W.2d 315, 321 (Tex.App.-Corpus Christi 1998, no pet.); see also Bott v. Am. Hydrocarbon Corp., 458 F.2d 229, 231 (5th Cir.1972) (stating that, under Texas choice of law rules, "Texas considers interest damages a substantive matter controlled by the law of the state where the cause of action arose"); Corrosion Rectifying Co. v. Freeport Sulphur Co., 197 F.Supp. 291, 293 (S.D.Tex.1961) (same). The OAG also directs us to a portion of the United State's Supreme Court decision in Morley v. Lake Shore and Michigan Southern Railway Co., 146 U.S. 162, 168-69, 13 S.Ct. 54, 56-57, 36 L.Ed. 925 (1892). In Morley, the Supreme Court applied New York law and held that post-judgment interest was statutory and therefore subject to prospective changes in rates by the state legislature:
After the cause of action, whether a tort or a broken contract, not itself prescribing interest till payment, shall have been merged into a judgment, whether interest shall accrue upon the judgment is a matter not of contract between the parties, but of legislative discretion, which is free, so far as the Constitution of the United States is concerned, to provide for interest as a penalty or liquidated damages for the non-payment of the judgment, or not to do so. When such provision is made by statute, the owner of the judgment is of course entitled to the interest so prescribed until payment is received, or until the State shall, in the exercise of its discretion, declare that such interest shall be changed or cease to accrue. Should the statutory damages for non-payment of a judgment be determined by a State, either in whole or in part, the owner of a judgment will be entitled to receive and have a vested right in the damages which shall have accrued up to the date of the legislative change; but after that time his rights as to interest as damages are, as when he first obtained his judgment, just what the Legislature chooses to declare. He has no contract whatever on the subject with the defendant in the judgment, and his right is to receive and the defendant's obligation is to pay, as damages, just what the State chooses to prescribe.
Id. (emphasis added).
In examining each side's arguments regarding whether section 157.265 involves a vested right, we return to Abell's discussion of such rights:
[A] right, in a legal sense, exists, when, in consequence of the existence of given facts, the law declares that one person is entitled to enforce against another a given claim, or to resist the enforcement of a claim urged by another. Facts may exist out of which, in the course of time or under given circumstances, a right would become fixed or vested by operation of existing law, but until the state of facts which the law declares shall give a right comes into existence there cannot be in law a right; and for this reason it has been constantly held that, until the right becomes fixed or vested, it is lawful for the lawmaking power to declare that the given state of facts shall not fix it, and such laws have been constantly held not to be retroactive in the sense in which that term is used.
613 S.W.2d at 261 (quoting Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 253 (1887)). Further,
A right cannot be considered a vested right, unless it is something more than such a mere expectation as may be based upon an anticipated continuance of the present general laws; it must have become a title, legal or equitable, to the present or future enjoyment of a *520 demand or legal exemption from the demand made by another.
Id. Abell, 613 S.W.2d at 261, also relied on City of Dallas v. Trammell, which held that, for a right to be constitutionally protected, "[i]t must be something more than a mere expectancy based upon an anticipated continuance of an existing law." 129 Tex. 150, 101 S.W.2d 1009, 1014 (1937).
Applying Abell to the issue at hand, we initially observe that the supreme court has recognized two legal sources for an award of prejudgment interest: (1) general principles of equity and (2) an enabling statute. Johnson & Higgins, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 530 (Tex.1998). Section 157.265 is the enabling statute for prejudgment interest accruing on delinquent child support and is included in a chapter of the family code providing enforcement mechanisms for child support. See TEX. FAM.CODE. ANN. § 157.265. We agree with W.G.S. that section 157.265 governs "the rate and manner in which interest applies to child support arrearages" and, therefore, is part of the remedial scheme in the family code designed to encourage child support obligors to make child support payments in a timely fashion. 107 S.W.3d at 630.
Unpaid child support can be reduced to judgment and enforced as a debt, but it is "more properly characterized as an unfulfilled duty ... to the custodial parent." Patton, 821 S.W.2d at 145. For parents who fail to fulfill their duty of support, the legislature has enacted provisions, such as section 157.265, that outline the consequences of such a failure. W.G.S., 107 S.W.3d at 630. While section 157.261(a) states that "[a] child support payment not timely made constitutes a final judgment for the amount due and owing, including interest as provided in this chapter," section 157.265 does not define or regulate an obligee's right to collect child support arrearages, but affects only the measure of damagesthe rate of prejudgment interest applicable in the enforcement of the obligee's right to such arrearages. See TEX. FAM.CODE ANN. §§ 157.261(a), 157.265; A.D., 73 S.W.3d at 248; see also Natural Gas Clearinghouse v. Midgard Energy Co., 113 S.W.3d 400, 414 n. 13 (Tex.App.-Amarillo 2003, pet. denied) (observing that "statutes relating to damages are remedial" and that prejudgment interest "is simply a form of damages"); JOHN J. SAMPSON ET AL., supra § 157, Introductory Cmt., 677 (stating that the child support interest provision is "another remedy [in] the ever-growing arsenal for enforcement of child support orders").
A parent owed delinquent child support but who has not had it confirmed and reduced to a cumulative money judgment thus has only an expectancy that a particular type and rate of prejudgment interest will apply to delinquent child support payments. See Abell, 613 S.W.2d at 261; Trammell, 129 Tex. 150, 101 S.W.2d at 1014. Indeed, as described above, the legislature has amended the child support interest provision four times since it was first enacted in 1991, changing the amounts and methods of calculating such interest. W.G.S. noted that "[t]he 1993 amendment, which raise[d] the statutory interest rate from ten percent to twelve percent, `reaches back' and applies to arrears dues and owing on September 1, 1991." 107 S.W.3d at 629 (citing Act of May 15, 1993, 73rd Leg., R.S., ch. 150, §§ 1, 3, 1993 Tex. Gen. Laws 302, 302 (amended 1995, 1999, & 2001) (current version at TEX. FAM.CODE ANN. § 157.265)). Likewise, we think the language of the 2001 amendment reaches back and applies to unconfirmed child support arrearages existing before January 1, 2002 that are confirmed and reduced to a money judgment on or after that date. See TEX. FAM. *521 CODE ANN. § 157.265 historical note [Act of May 18, 2001, 77th Leg., R.S., ch. 1491, § 3(b)(2), 2001 Tex. Gen. Laws 5294, 5295].
After a thorough examination of the statute and the purposes underlying it, we reject A.B.L.'s and Hurd's conclusion that a retroactive application of section 157.265 would violate a vested right. Rather, we hold that a retroactive construction of section 157.265 does not offend article I, section 16 of the Texas Constitution because section 157.265 is a legislatively-created tool for the enforcement of child support orders. See TEX. CONST. art. I, § 16; A.D., 73 S.W.3d at 248.
3. Foolish & Absurd Results?
Finally, the OAG points out that because the legislature has chosen for Texas to participate in the federal Social Security Title IV-A and Title IV-D programs, Texas must comply with federal law providing that
any payment or installment of [ordered child] support ... is (on and after the date it is due) a judgment by operation of law with the full force, effect, and attributes of a judgment of the State, including the ability to be enforced ... and not subject to retroactive modification by such State and in any other State.
42 U.S.C. § 666(a)(9) (West Supp.2004). According to the OAG, a retroactive construction of section 157.265 could cause Texas to be out of compliance with federal law. The OAG argues that "nothing indicates the legislature contemplated, much less intended, to risk the loss of federal funding for Texas's public assistance and child enforcement programs simply by lowering the interest rate on unconfirmed delinquent arrears." The OAG states, "To construe this interest rate change by inferring a retroactive application that poses this risk is unreasonable and should be rejected."
We presume the legislature intended a just and reasonable result in enacting a statute. TEX. GOV'T CODE ANN. § 311.021(3). We will not construe a statute in a manner that will lead to a foolish or absurd result when another alternative is available. City of Roanoke v. Town of Westlake, 111 S.W.3d 617, 636 (Tex.App.-Fort Worth 2003, pet. denied).
As mentioned above, section 157.261(a) states that "[a] child support payment not timely made constitutes a final judgment for the amount due and owing, including interest," and section 157.262(a) directs that "in rendering a money judgment, the court may not reduce or modify the amount of child support arrearages." TEX. FAM.CODE ANN. §§ 157.261(a), 157.262(a). These two provisions are incorporated into the Texas Family Code to ensure compliance with federal law. We agree with the OAG that nothing in the 2001 amendment to section 157.265 indicates a legislative intent to opt out of the above-listed federal programs, but we do not believe that a retrospective application of section 157.265's prejudgment interest provision violates the express language in title 42, section 666(a)(9) of the United States Code. 42 U.S.C. § 666(a)(9). The federal statute itself does not speak to or even mention how interest is to be treated, and section 157.265 merely expresses the legislature's intent to apply a different rate of prejudgment interest to delinquent child support payments.
VI. Conclusion
We hold that, by amending section 157.265, the legislature intended for the six percent rate to apply to "unpaid child support that became due before [January 1, 2002] and for which a court has not confirmed the amount of arrearages and rendered a money judgment," and we, like the *522 trial court, will effectuate that intent. See TEX. FAM.CODE ANN. § 157.265 historical note [Act of May 18, 2001, 77th Leg., R.S., ch. 1491, § 3(b), 2001 Tex. Gen. Laws 5294, 5295] (emphasis added); McIntyre, 109 S.W.3d at 748. Having addressed each of the OAG's arguments, we overrule its sole issue and affirm the trial court's judgment.
NOTES
[1] In the 1995 regular session, the legislature repealed section 14.34. Act of April 20, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 113, 282.
[2] We also note that three bills to amend section 157.265 were introduced during the 2003 Regular Session, but none were enacted. See Tex. S.B. 1294, 78th Leg., R.S. (2003) (seeking to raise interest rate from six to nine percent); Tex. H.B. 312, 78th Leg., R.S. (2003) (same); Tex. H.B. 1067, 78th Leg., R.S. (2003) (seeking to clarify effective date of 2001 amendments).
[3] A.B.L. and Hurd both disagreed with A.R.J.'s interpretation of section 157.265, but all three courts reached the same result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2276202/ | 142 S.W.3d 857 (2004)
GOVERNMENT e-MANAGEMENT SOLUTIONS, INC., Plaintiff/Respondent,
v.
AMERICAN ARBITRATION ASSOCIATION, INC., Defendant/Appellant.
No. ED 83129.
Missouri Court of Appeals, Eastern District, Division Two.
July 13, 2004.
Motion for Rehearing and/or Transfer Denied August 17, 2004.
Application for Transfer Denied September 28, 2004.
*858 James R. Keller, St. Louis, MO, for appellant.
Donald R. Carmody, St. Louis, MO, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied August 17, 2004.
KATHIANNE KNAUP CRANE, Judge.
Defendant arbitration association appeals from the trial court's judgment declaring that defendant has no authority to determine if plaintiff is a proper party to an arbitration proceeding pending in California, and that any award entered in that arbitration is not binding on plaintiff. We reverse and remand with instructions to dismiss the action because Missouri courts have no jurisdiction to determine who is a *859 party to and who is bound by an arbitration proceeding pending in California pursuant to a contract that provided for arbitration in a state other than Missouri.
FACTUAL AND PROCEDURAL BACKGROUND
In June, 1998, Systems Consultants, Inc. ("SCI"), located in St. Louis County, Missouri, entered into a contract with Long Beach Unified School District, in Long Beach, California, ("the school district"), in which SCI agreed to provide the school district with certain licensed software and perform other duties for the school district. The contract denominated the school district as "CUSTOMER", and provided that it would be governed by California law. It contained the following provision for arbitration:
20. ARBITRATION
20.1 Based upon mutual agreement by both parties and subject to Sections 12.2 through 12.5 above, any controversy or claim arising out of or relating to this Agreement or the breach thereof will be settled by arbitration in accordance with the Rules of the American Arbitration Association ("AAA") then in effect, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Any such arbitration will be conducted in the city nearest CUSTOMER location having an AAA regional office. The arbitrator(s) will be selected from a panel of persons having experience with and knowledge of electronic computers and the computer business. The arbitrators will have no authority to award punitive damages nor any other damages not measured by the prevailing party's actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of this Agreement.
20.2 Neither party nor the arbitrators may disclose the existence or results of any arbitration hereunder without the prior written consent of both parties.
20.3 Prior to initiation of arbitration or any other form of legal or equitable proceeding, the aggrieved party will give the other party at least 60 days prior written notice describing the claim and amount as to which it intends to initiate action.
The rules of the AAA include Rule 50 of the Commercial Dispute Resolution Procedures, which provides in part:
b. Neither the AAA nor any arbitrator in a proceeding under these rules is a necessary party in judicial proceedings relating to the arbitration.
* * *
d. Neither the AAA nor any arbitrator shall be liable to any party for any act or omission in connection with any arbitration conducted under these rules.
After entering into this contract, SCI borrowed funds from Cass Commercial Bank and secured the loan with its assets.
A dispute arose over the software that the school district had purchased from SCI. In June 2000, pursuant to the contract, the school district made a demand for arbitration with SCI to the American Arbitration Association ("AAA"). The AAA proceeded to administer the arbitration of this dispute in Los Angeles, California.
SCI later defaulted on the Cass Commercial Bank loan. On January 2, 2001, Cass Commercial Bank foreclosed on SCI's assets. Plaintiff, Government e-Management Solutions, Inc. ("GEMS"), a Missouri corporation formerly known as Government e-Business, purchased SCI's *860 assets in the foreclosure sale on January 2, 2001.
In March 2001, the school district amended its demand for arbitration to add GEMS as a party to the arbitration. On November 15, 2001, in its "Arbitrability Issue and Procedural Order No. 4," the AAA arbitration panel, to which the dispute between the school district and SCI had been assigned, determined that it had concurrent jurisdiction with the courts to decide if the school district met its burden of showing the existence of jurisdictional attributes that would compel a non-signatory, like GEMS, to arbitrate the dispute. The panel concluded that there were several "jurisdictional attributes," pleaded by the school district, which, if true, would subject GEMS to arbitration. It stated it would hear the jurisdictional issue, and ordered the school district and GEMS to submit their exhibits, information about witnesses, and "recommendations for incorporating or carving out the jurisdictional attributes from the core merits."
On January 3, 2002, GEMS filed an action against AAA in the Circuit Court of the City of St. Louis, seeking declaratory relief from the arbitration panel's November 15 order. AAA filed a motion to dismiss on the grounds that AAA has immunity from this type of suit, which can proceed only against the parties in the underlying arbitration, and in the absence of indispensable parties, the court cannot proceed. The trial court denied the motion to dismiss and the case proceeded to trial.
AAA renewed its motion to dismiss and moved for judgment in its favor on the same grounds. The trial court entered judgment for GEMS. In its Findings of Fact, Conclusions of Law and Judgment, the trial court determined that a justiciable controversy existed between GEMS and AAA, that AAA did not have arbitral immunity, that AAA did not have jurisdiction over GEMS, and that any arbitration award in favor of the school district would not be binding on GEMS.
DISCUSSION
On appeal, AAA contends that the trial court erred in entering judgment against it because it has arbitral immunity, as set out in International Medical Group, Inc. v. American Arbitration Association, Inc., 312 F.3d 833 (7th Cir.2002); there is no justiciable controversy between it and GEMS, citing State ex rel. Telecom Management v. O'Mally, 965 S.W.2d 215, 220 (Mo.App.1998); and no judgment could be entered in the absence of the school district, who was an indispensable party under Section 527.110 RSMo (2000) and Rule 87.04.
Before we address the merits of the appeal, we must consider sua sponte our jurisdiction. Teltech, Inc. v. Teltech Communications, 115 S.W.3d 441, 442 (Mo.App.2003); Freeway Media, LLC v. City of Kansas City, 14 S.W.3d 169, 172 (Mo.App.2000). Because our jurisdiction is predicated on that of the trial court, if the trial court lacked jurisdiction over this action, then any judgment entered thereon would be void, depriving us of jurisdiction except to reverse the judgment and remand the cause for dismissal by the trial court. Freeway Media, 14 S.W.3d at 172.
Plaintiff sought relief from an arbitration panel's order made in an active and ongoing arbitration proceeding in California. Missouri has adopted the Uniform Arbitration Act (UAA), Sections 435.350-435.470 RSMo (2000). "The `source of the court's jurisdiction to act in arbitration matters is wholly derived from' the UAA." Teltech, 115 S.W.3d at 442 (quoting Artrip v. Samons Constr. Inc., 54 S.W.3d 169, 172 (Ky.Ct.App.2001)). Jurisdiction under the *861 UAA is conferred by Section 435.430, as follows:
435.430. Court, jurisdiction.The term "court" means any court of competent jurisdiction of this state. The making of an agreement described in section 435.350 providing for arbitration in this state confers jurisdiction on the court to enforce the agreement under sections 435.350 to 435.470 and to enter judgment on an award thereunder.
(Emphasis added.)
Jurisdiction under this statute is governed by the place specified for arbitration in the arbitration agreement. If the arbitration agreement provides for arbitration in a state other than Missouri, then Missouri courts have no jurisdiction. Teltech, 115 S.W.3d at 443; H.T.I. Corp. v. Lida Mfg. Co., 785 S.W.2d 110, 112 (Mo. App.1990). The statute speaks in terms of jurisdiction to enforce an agreement and to enter a judgment or award thereunder. This language has been held to include jurisdiction to determine the validity of the arbitration clause and whether it is binding on a non-party to the agreement, H.T.I. Corp., 785 S.W.2d at 112, and to compel arbitration or stay pending court proceedings. Teltech, 115 S.W.3d at 442. The contract provisions setting out the place of arbitration control jurisdiction, even when the suit is brought by a non-party to that contract who challenges the validity of the arbitration clause and whether it is binding on it. H.T.I. Corp., 785 S.W.2d at 111-13.
In H.T.I. Corp., the plaintiff was a Missouri corporation that filed an application in a Missouri circuit court to stay an arbitration pending in New York City pursuant to a sales contract between two other companies, to which the plaintiff was not a party. The plaintiff contended that the arbitration provision was not binding on it and was invalid. The circuit court dismissed for lack of jurisdiction. On appeal our Western District affirmed, holding that the location for arbitration designated in the contract pursuant to which the challenged arbitration was proceeding governed jurisdiction. Id. at 112. It concluded, "Obviously, since Missouri is not the state in which arbitration is specified, Missouri is without jurisdiction to proceed." Id. at 113.
The arbitration agreement in the contract provides that arbitration "will be conducted in the city nearest CUSTOMER location having an AAA regional office." "CUSTOMER" is the Long Beach Unified School District located in Long Beach, California. Pursuant to the contract, the arbitration proceedings are being conducted in Los Angeles, California. Because the contract under which the arbitration panel was acting provides for arbitration in a state other than Missouri, Missouri courts lack jurisdiction to determine if GEMS is subject to the arbitration proceeding pending in California or would be bound by an award. H.T.I. Corp., 785 S.W.2d at 111-13.
Conclusion
We reverse the judgment and remand to the trial court with instructions to dismiss the action.
GLENN A. NORTON, P.J., and MARY K. HOFF, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334185/ | 443 S.E.2d 409 (1994)
David T. BROCK, the Sole Surviving Trustee for Emmanuel Baptist Church, Jack Cantrell, Lawrence Allen Paris and Jimmy Shirley, Individually and as Representatives of Others Similarly Situated, Respondents,
v.
Mitchell BENNETT, Appellant.
No. 2163.
Court of Appeals of South Carolina.
Heard February 9, 1994.
Decided April 4, 1994.
*410 Richard E. Thompson, Jr., and Scott D. Robinson, Lowery, Thompson & King, Anderson, for appellant.
Jack F. McIntosh, Anderson, for respondents.
CURETON, Judge:
This action arises from a disagreement over the physical and spiritual control of Emmanuel Baptist Church. The disputants are, John T. Brock, a former trustee, and Mitchell Bennett, the pastor of the present congregation. The trial court found that Brock was entitled to control of the church and ordered Bennett, the present custodian of the church, to surrender control of the church to Brock. We vacate the trial court's order and dismiss respondents' complaint.
In 1952, Pratt and Earline Sosobee deeded a lot of land to Brock, John H. Reed and Roy Butler "as trustees for Emmanuel Baptist Church, their Successors in office, Heirs and Assigns, forever". Reed and Butler were deceased at the time of this litigation.
No structure existed on the property at the time of the conveyance and the church "was in the process of being formed." Brock and others organized the church and built the present building. Brock attended this church for three or four years but stopped attending because he didn't like the minister at the time. Since that time he has been a member of three other baptist churches and now attends the Church of God. He has not attended services or participated in the affairs of Emmanuel Baptist Church for over thirty years. In 1965 the church incorporated. According to the Church's Certificate of Incorporation, its trustees at that time were Roy H. Butler, Sr., Henry Mize and Curtis L. Moors. Brock is not listed as a trustee. He did not know that the church had incorporated, having learned this fact at the hearing.
According to Brock's testimony, when he heard that the church was for sale he demanded the keys from Bennett, who apparently had control of the church at that time. Bennett refused Brock possession and control of the church.
Respondent, Lawrence Paris, who acknowledged he has never been a member of Emmanuel, testified he went to the church with Brock in the company of twelve or fifteen people to worship. His purpose was to lead a group of people that had no church in which to worship.[1] He testified these *411 people lived in the general neighborhood of the church. He also testified he had been to the church three times; twice he was denied admittance and the third time Bennett called the sheriff to try to have him arrested. Paris claimed that there were no worship services being conducted at the church.
During the hearing, counsel for Bennett, in response to a question by the court, stated the church had three members. Counsel further stated that Bennett was a member of the church, was the pastor and, a congregation was presently conducting services at the church.
A witness, Juanita McGuire, testified that she had been the secretary and treasurer of the church until about six years ago. She was not permitted to testify regarding the church records. She had been a member for about forty years until she left six or seven years ago at a time when there were about twelve or fifteen members in the church's congregation. In response to the question whether Brock had by deed transferred his interest to anyone, McGuire stated "We had new trustees." Bennett did not testify nor did any of the other respondents.
In his Answer, Bennett asserted Brock and the other respondents had no standing to prosecute this action because none of them were members of the church. Additionally, Bennett asserted Brock had no standing as a trustee because he had been replaced as trustee of the church.[2] After the respondents presented their evidence, Bennett moved for a directed verdict on the same grounds raised in his answer. The court denied the motion. We hold the trial court erred in not granting the directed verdict motion.
The court found that because Brock was the only surviving trustee for the property and the property had not been conveyed out of his name as trustee, he has standing to maintain this action. The court further found there were no church services being conducted on the premises, nor was there an active or viable congregation.[3]
The court concluded that title was vested in Brock as the sole surviving trustee for the benefit of those who had worshiped as members of Emmanuel Baptist Church. The court further concluded that in order to carry out the purposes for which the trust was created it is necessary that Brock perform the affirmative duties of maintaining the premises and assisting those who are or would become members of the congregation in the re-establishment of the church. Therefore, the court concluded that Brock has the right to possession and control of the church's property and the right to exclude anyone, including Bennett, who may interfere with the purposes of the trust. The court directed Bennett to surrender keys in his possession to Brock along with the records and contents of the church. Brock was authorized to bring upon the premises those who would desire to participate in the reorganization of the church in accordance with the doctrines of the Baptist Church.
On appeal Bennett argues that only those who are members of the congregation of Emmanuel Baptist Church have standing to bring an action addressing the issue of church property and the conduct of its services. Bennett claims that Brock lost his standing to maintain this action when the church was incorporated in 1965, and also lost all rights as a member of the congregation when he gave up his membership in the church over thirty years ago. We agree that Brock and the other respondents have no standing to bring this action.
In order to have standing to prosecute an action, a plaintiff must have a personal stake or interest in the subject matter of the lawsuit. Duke Power v. South Carolina Public Service Comm'n, 284 S.C. 81, 326 S.E.2d 395 (1985). It is well settled in this state that a majority of the members of a congregational church, such as a baptist church, controls the decisions of the church. Seldon v. Singletary, 284 S.C. 148, 326 S.E.2d 147 (1985). It is also a settled general *412 rule that a mere member of the general public, even though a potential beneficiary of services to be rendered, has no standing in court to maintain a suit to enforce a charitable gift or to prevent a violation of a charitable trust. See Annot., 94 A.L.R.3rd 1204 (1979); see also Blair v. Blair, 302 S.C. 399, 396 S.E.2d 374 (Ct.App.1990); Bramlett v. Young, 229 S.C. 519, 93 S.E.2d 873 (1956) (citing with approval Chatfield v. Dennington, 206 Ga. 762, 58 S.E.2d 842 (1950)) (generally, persons who are not members of a congregational church may not maintain an action affecting the church's property).
As we read Brock's testimony, he concedes he was not a member of Emmanuel at the time this action was commenced. Aside from that concession, it is clear he abandoned his membership in the church by uniting with another church. See Adickes v. Adkins, 264 S.C. 394, 215 S.E.2d 442 (1975); 66 Am. Jur.2d Religious Societies § 11; Bramlett, supra.; see also State v. Ancker, 2 Rich. 245 (1846) (resignation from a church may be implied from the acts of the parties). As to the other respondents, the record does not reflect that any of them were members or officers of the church at the time of the commencement of this action; thus, they have no standing by reason of membership or office in Emmanuel Baptist Church. Bramlett, supra.; Blair, supra.; Trustees of Oak Grove Missionary Baptist Church v. Ward, 261 Ky. 42, 86 S.W.2d 1051 (1935).
Brock contends and the court found that he had standing because of his status as trustee for the church. We disagree. Prior to 1965, Emmanuel Baptist Church was an unincorporated association. Although Brock was named as a trustee for the church, the deed to him and the other trustees does not purport to create a property interest in him, except to the extent he, as trustee, held legal title for the church and would benefit as a member of the church. See Blair, supra. The deed does not declare a use for the property or impose any duties on Brock and the named trustees. In the absence of a declared, or clearly implied, trust, the trustees of a church hold the property solely for the congregation whose officers they are at the time of the conveyance. Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L. Ed. 666 (1871); 76 C.J.S. Religious Societies § 58 (1952). While legal title to the property may be in the trustees, the use of the property is controlled by the discipline of the church in general. Watson v. Jones, supra.; 66 Am. Jur.2d Religious Societies § 37. Moreover, the duly elected trustees of a church hold office only for the term for which they are elected and until their successors are elected. 76 C.J.S. Religious Societies § 26; 66 Am. Jur.2d Religious Societies § 17. See also S.C.Code Ann. § 62-7-707, known as the Uniform Trustees Powers Act (1990) (a successor trustee succeeds to all the powers given to his predecessor trustee).
Here, it is clear that Brock's interest in the real property in issue was by virtue of his office as trustee of the church[4] and as a member of Emmanuel Baptist Church. The only evidence in the record is that he held neither status at the time of the commencement of this action. The Certificate of Incorporation indicates that in 1965 he was not a trustee or officer of the church. Additionally, the person who was secretary of the church until about six years ago testified that new trustees had been elected. Moreover, generally, congregational forms of church government provide that one may not be a trustee without being a member of the church. Wall v. Mount Calvary Baptist Church, 188 Misc. 350, 64 N.Y.S.2d 200 (1946); see also 76 C.J.S. Religious Societies § 26. Because Brock abandoned his membership in Emmanuel, he likewise forfeited his right to remain a trustee of the church.
Brock also argues that because Bennett was sued in his individual capacity, and because he has not come forward to demonstrate his right to possess the church's property, the trial court's order should be affirmed. This reasoning is flawed. Standing is a fundamental requirement for instituting an action. Blandon v. Coleman, 285 S.C. *413 472, 475, 330 S.E.2d 298, 299 (1985). No justiciable controversy is presented unless the plaintiff has standing to maintain the action. Dockside Ass'n, Inc. v. Detyens, Simmons and Carlisle, 285 S.C. 565, 330 S.E.2d 537 (Ct.App.1985), affirmed as modified, 287 S.C. 287, 337 S.E.2d 887 (1985), appeal after remand, 297 S.C. 91, 374 S.E.2d 907 (1988). Once it is determined a plaintiff has no standing to prosecute, the court must dismiss the action.
Bennett also appeals the order of the court on the basis the court interjected itself into ecclesiastical matters. Because we have determined Brock and the other respondents had no standing to prosecute this action, we need not address this issue. We also need not address at length the court's ruling that because there was evidence the church had only three members, it is not a viable church. This question, we believe is ecclesiastical in nature. We note, however, a reference in Bramlett to 45 Am.Jur. Religious Societies, § 66:
Where property is acquired by a religious society and the conveyance under which the title passes, imposes no limitation upon the uses to which the property is to be devoted, so long as any existing organization can be ascertained to be that to which the property was granted, or its regular and legitimate successor, it is entitled to use of the property. (Emphasis added).
Id. 93 S.E.2d at 884.
Accordingly, the order of the trial court is vacated and respondents' complaint is dismissed.
VACATED.
HOWELL, C.J., and SHAW, J., concur.
NOTES
[1] It is inferable that this group intended to take over the church.
[2] We do not know who the present trustee(s) of the church are. However, we cannot assume the church has no trustee(s).
[3] The court apparently accepted as fact the statement made by Bennett's counsel that the church had only three members.
[4] The deed not only conveys title to Brock and the other trustees, but to their successors in office as well. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334220/ | 212 Ga. App. 695 (1994)
443 S.E.2d 277
CLARK
v.
ARRAS et al.
A93A2452.
Court of Appeals of Georgia.
Decided March 15, 1994.
Reconsideration Denied March 31, 1994.
Clark & Clark, Fred S. Clark, for appellant.
Lane & Crowe, Donald B. Napier, Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Richard K. Strickland, for appellees.
COOPER, Judge.
This appeal arises out of an action brought by plaintiff against Dr. Milton Arras, the county medical examiner, and Dr. Abram Brown, the county coroner. In her complaint, plaintiff asserted a claim for intentional infliction of emotional distress as a result of an autopsy performed on her stillborn fetus. The trial court granted summary judgment to both defendants, and this appeal follows.
In August 1990, plaintiff had a miscarriage in approximately her twentieth week of pregnancy. In March 1991, plaintiff suffered another miscarriage while in her twenty-second week of pregnancy. Because of plaintiff's history and because the second miscarriage appeared unexplained, Dr. Arras performed an autopsy on plaintiff's stillborn fetus. Plaintiff contended in her complaint that Dr. Arras, in conjunction with Dr. Brown, performed the autopsy by mistake and without her permission, causing her mental distress, pain and anguish.
1. Plaintiff argues that summary judgment should not have been granted to defendants because Dr. Arras admitted that he performed the autopsy on the wrong fetus. The record does not support plaintiff's argument. Dr. Arras explained in his deposition that some confusion arose because there was a four-week-old miscarried fetus in the morgue at the same time as plaintiff's twenty-two-week-old fetus. After performing the autopsy on plaintiff's fetus, he mistakenly put the name of the four-week-old fetus on the autopsy report. Dr. Arras further explained that the four-week-old fetus was too small to autopsy and that there was no mistake in his mind about which fetus he was to autopsy. Plaintiff attempted to rebut this evidence with her affidavit in which she stated that she was told the autopsy was supposed to have been performed on another fetus. However, plaintiff did not identify the source of this hearsay statement, and the statement referring to what she was told is not admissible evidence. See Sarantis v. Kroger Co., 201 Ga. App. 552 (411 SE2d 758) (1991). Plaintiff failed to rebut defendants' evidence that the autopsy was not performed by mistake, and the trial court did not err in granting summary judgment.
2. Citing the Death Investigation Act, OCGA § 45-16-20 et seq. as authority, plaintiff also contends summary judgment was improper because the autopsy was performed without her permission. OCGA § 45-16-28 provides: "In the case of death of any person under such circumstances as would not require a medical examiner's inquiry under Code Section 45-16-24, any physician who is duly licensed ... shall be deemed to have been legally authorized to perform an autopsy upon the body of a deceased person when such autopsy has *696 been consented to by the person assuming custody of the body for the purposes of burial. ..." (Emphasis supplied.) Defendants argue that the autopsy was specifically authorized under OCGA § 45-16-24 (a) (6), which requires that a medical examiner's inquiry, including an autopsy (see OCGA § 45-16-27.1 (a)), be performed when any person dies "[a]fter birth but before seven years of age if the death is unexpected or unexplained." Defendants also cite OCGA § 45-16-22 (c), which provides that "[e]xcept as otherwise provided in this article, it shall be in the sole discretion of the medical examiner to determine whether or not an autopsy ... is required." Regardless of whether a stillborn fetus is included within the term "person" for purposes of the Death Investigation Act (see Jackson v. State, 208 Ga. App. 391, 393-394 (2) (430 SE2d 781) (1993)), we find that plaintiff has failed to establish intentional infliction of emotional distress.
"In Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985), this court noted the four elements of the tort of intentional infliction of emotional distress set forth in the Restatement (Second) of Torts § 46, all four of which must be present in order for the claimant to recover: (1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; (4) The emotional distress must be severe." (Citations and punctuation omitted.) Hendrix v. Phillips, 207 Ga. App. 394, 395 (1) (428 SE2d 91) (1993). "It is not enough that the defendant's conduct in a given situation is intentional or that it is willful and wanton. In order to warrant recovery the conduct also must be of such serious import as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress. Otherwise, the conduct will not rise to the requisite level of outrageousness and egregiousness." (Citations and punctuation omitted.) St. Mary's Hosp. of Athens v. Radiology Professional Corp., 205 Ga. App. 121, 123 (1) (421 SE2d 731) (1992). "Factors which may contribute to outrageousness and egregiousness include the existence of a special relationship in which one person has control over another, the actor's awareness of the victim's particular susceptibility, and the severity of the harm resulting from the conduct. Some claims will be found not to rise to the requisite level of outrageousness and egregiousness as a matter of law." (Citations and punctuation omitted.) Richardson v. Hennly, 209 Ga. App. 868, 872 (3) (434 SE2d 772) (1993). Dr. Arras testified in his deposition that he performed the autopsy because he considered the stillbirth to be suspicious and unexplained. We conclude that the actions of defendants do not rise to the necessary level of outrageousness and egregiousness as a matter of law. Since plaintiff failed to establish a claim for intentional infliction of emotional distress, the *697 trial court properly granted summary judgment to defendants.
Judgment affirmed. Beasley, P. J., and Smith, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1755245/ | 570 So. 2d 1087 (1990)
Scott HANNA, Appellant,
v.
Jack Richard MILLBYER, et al., Appellees.
No. 90-2305.
District Court of Appeal of Florida, Third District.
December 4, 1990.
Barnett, Clark & Barnard and Jim Clark and Frances F. Guasch, for appellant.
Cunningham, Albritton, Lenzi, Warner, Miller & Erskine and Neta F. Seiber, for appellees.
Before SCHWARTZ, C.J., and BARKDULL and GERSTEN, JJ.
SCHWARTZ, Chief Judge.
The order under review denied a motion to quash substituted service of process on the defendant driver through the secretary of state based on the allegation that the defendant was concealing his whereabouts. § 48.171, Fla. Stat. (1989). We reverse because (1) the plaintiffs' showing, which was only that the process server could not effect personal service on the defendant at his last known address, was woefully insufficient to establish their "due diligence" or the existence of concealment, Wiggam v. Bamford, 562 So. 2d 389 (Fla. 4th DCA 1990); Torelli v. Travelers Indem. Co., 495 So. 2d 837 (Fla. 3d DCA 1986); Leviten v. Gaunt, 360 So. 2d 112 (Fla. 3d DCA 1978); Lendsay v. Cotton, 123 So. 2d 745 (Fla. 3d DCA 1960); compare Fernandez v. Chamberlain, 201 So. 2d 781 (Fla. 2d DCA 1967), cert. denied, 207 So. 2d 454 (Fla. 1967); Steedman v. Polero, 181 So. 2d 202 (Fla. 3d DCA 1965); and (2) mandatory procedural requirements, including the filing of an affidavit of compliance and a notification of service, see § 48.161(1), Fla. Stat. (1989), were not satisfifed. See Gloucester Engineering, Inc. v. Mendoza, 489 So. 2d 141 (Fla. 3d DCA 1986); Bejar v. Garcia, 354 So. 2d 964 (Fla. 3d DCA 1978); Zarcone v. Lesser, 190 So. 2d 805 (Fla. 3d DCA 1966).
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2311548/ | 13 F. Supp. 2d 756 (1998)
BROWNING-FERRIS INDUSTRIES OF ILLINOIS, INC., et al. Plaintiffs,
v.
Richard TER MAAT, et al., Defendants.
No. 92 C 20259.
United States District Court, N.D. Illinois, Western Division.
July 29, 1998.
*757 *758 *759 *760 *761 Pierre C. Talbert, Katz, Randall & Weinberg, Chicago, IL, William Beck, Gary D. Justis, Lathrop & Gage, L.C., Kansas City, MO, for Plaintiffs.
Patrick Fanning, Knight, Hoppe, Fanning & Knight, Des Plaines, IL, Edward M. Maher, Law Offices of Edward Maher, Rockford, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
REINHARD, District Judge.
INTRODUCTION
Plaintiffs filed this action for contribution and declaratory relief pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as *762 amended, 42 U.S.C. §§ 9607 and 9613 and under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, seeking monetary damages against defendants for the past and future costs incurred to respond to environmental contamination at the MIG/DeWane Landfill Superfund Site located in Boone County, Illinois. The Court conducted a two-week bench trial in January 1998 and set a briefing schedule for the parties to submit post-trial briefs setting forth the issues and citing the trial evidence relevant thereto.[1] This order will decide the legal issues, make the necessary factual findings, allocate liability among the parties and assess damages against defendants where appropriate.
BACKGROUND
The site (also termed a facility as defined in CERCLA) at issue is an approximately forty-seven acre landfill located near Belvidere in Boone County, Illinois. The property during the entire relevant time period was owned by Raymond DeWane, Jean A. Farina and L.A.E., Inc. who leased it for operation of a landfill. It was operated as a landfill from February 1969 to June 1988. During that time, a variety of residential, commercial and industrial waste was placed in the landfill.
The landfill initially consisted of an excavated area which was lined with five feet of clay as required by the state landfill permit. About 45,000 cubic yards of waste were placed in the excavation between February 1969 and March 1971. The operator of the landfill during that time left it in poor condition and there was suspected contamination of the groundwater by leachate.[2]
In early 1971, the owners leased the landfill to Browning-Ferris Industries of Illinois, Inc. (BFI).[3] BFI sought and obtained a new landfill permit from the Illinois Environmental Protection Agency (IEPA) in May 1972 to operate the site. The landfill began receiving waste in April 1973, although on a limited basis. In September 1973, when a nearby landfill closed, the landfill began receiving waste on an unlimited basis. BFI operated the landfill until October 1975.
BFI's permit required a five-foot, compacted clay liner and a gravity-powered leachate collection system which fed into a surface impoundment. Additionally, daily, intermediate and final earthen cover was required.[4] There is no evidence to show that BFI did not comply with these requirements. During its operating period, BFI admittedly placed about 375,000 cubic yards of waste into the landfill. At the end of BFI's operation, it closed and placed a final cover over the area it had landfilled.
Beginning in October 1975, the owners leased the landfill to defendants.[5] Defendants operated the landfill from October 1975 to June 1988. During that time, they deposited approximately 3.5 million cubic yards of waste. MIG was the operator per the lease and AAA was a transporter to the landfill. Richard Ter Maat served as an officer of both corporations.
After filing a site closure plan with the IEPA, which was rejected because the owners refused to sign it, defendants left the landfill without properly closing it, including no final cover. MIG lacked the funds to effectuate a proper closure. AAA was sold, and Richard Ter Maat moved to Florida. Defendants took no part in operating or closing the landfill after June 30, 1988.
In August 1990, the United States Environmental Protection Agency (USEPA) placed the landfill on the national Priorities *763 List (NPL) for clean-up under CERCLA. In October 1990 and again in March 1991, the USEPA and IEPA issued administrative orders on consent (AOC) to clean-up the landfill. Pursuant to these AOCs, plaintiffs were to: (1) conduct immediate waste stabilization measures, such as pump leachate from the surface impoundment, repair the impoundment berm and construct an interim cap on the landfill, (2) conduct a remedial investigation and feasibility study (RI/FS) pursuant to the NPL[6]; and (3) to pay past response costs and oversight costs incurred by USEPA and IEPA.
Plaintiffs filed this action in an effort to recover contribution for these costs, applicable interest and a declaration of liability as to future costs.[7] The future costs will depend on the Record of Decision (ROD) to be issued by USEPA which will set forth the needed measures to complete the clean-up and management of the landfill.[8]
Following the bench trial, the parties submitted post-trial briefs in which they set forth thirty-five issues to be decided by the court. The court will decide each of the issues in this order. The facts and evidence relevant to a particular issue will be discussed when the court decides that issue.
Operator Liability
Plaintiffs assert liability against AAA and Richard Ter Maat as operators through theories of direct liability and derivative liability under state corporate veil-piercing law.[9] The court will first address the issue of direct liability.
1. AAA
The United States Supreme Court has recently spoken on the issue of when a party can be held directly liable as an operator under CERCLA. See United States v. Bestfoods, ___ U.S. ___, 118 S. Ct. 1876, 141 L. Ed. 2d 43 (1998).[10] At issue in Bestfoods was to what extent, if any, a parent can be held liable as either an owner or an operator of a hazardous waste site owned or operated by its subsidiary. The court answered that the parent can be found derivatively liable as an owner or operator only if the corporate veil may be pierced in light of the applicable state law. Bestfoods, ___ U.S. at ___ _ ___, 118 S. Ct. at 1880-81. On the other hand, the parent can also be found directly liable as an operator, independent of any state veil-piercing law, if a plaintiff can show the parent actively participated in, and exercised control over, the operations of the site.[11]Id. at 1881. Any person or corporation who operates a site is directly liable for the costs of clean-up regardless of whether that person is the site's owner, the owner's parent corporation or business partner, or someone who sneaks in at night to discharge toxic waste at the site. Id. at 1885.
The difficulty comes in defining actions sufficient to constitute direct operation. Bestfoods, at 1885. Because the statute fails to adequately define the term "operator," the Supreme Court looked to its ordinary or natural meaning. In the organizational sense, which was the intent of CERCLA, operate means to conduct the affairs, manage, or operate a business. Id. (citing American Heritage Dictionary 1268 (3d ed.1992)). *764 Therefore, under CERCLA, an operator is simply someone who directs the workings of, manages, or conducts the affairs of a site. Id. To sharpen this definition for purposes of CERCLA's concern with environmental contamination, an operator must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations. Id.
If the issue of direct liability as an operator is to be kept distinct from derivative liability, there must be no fusion of direct and indirect liability concepts. Bestfoods, at 1885. The question for direct liability is not whether the one corporation operates the other, but rather, whether it operates the site. Id. at 1886. Such operation is evidenced by participation in the activities of the site and not the subsidiary. Id. Control of the operating corporation, if extensive enough, gives rise to indirect liability under state law piercing doctrine, not direct liability under the statute. Id.
Having said that, the Court cautioned that it is entirely appropriate for directors of a parent corporation to serve as directors of its subsidiary and that fact alone may not serve to expose the parent to liability for the acts of the subsidiary. Bestfoods, at 1886. This recognizes the well-established principle that directors and officers holding positions with a parent and its subsidiary can and do change hats to represent the two corporations separately despite their common ownership. Id. Therefore, it is not enough to establish direct liability as an operator that dual officers and directors made policy decisions and supervised activities at the site. Id. Rather, it must be shown that, despite the general presumption to the contrary, the officers and directors were acting in their capacities as officers and directors of the parent and not as officers and directors of the subsidiary.[12]Id.
The court went on to discuss various possible scenarios where a parent corporation could be found directly liable as an operator. The first is where the parent operates the site in the stead of its subsidiary or alongside the subsidiary in some sort of joint venture. Bestfoods, at 1887. The second possibility is where a dual officer or director might depart so far from the norms of parental influence exercised through dual office-holding as to serve the parent, even when ostensibly acting on behalf of the subsidiary in operating the site. Id. The third scenario is that an agent of the parent, with no hat to wear but that of the parent, might manage or direct activities at the site. Id. Norms of corporate behavior, undisturbed by any CERCLA provision, are crucial reference points. Id. The critical question is whether, in degree and detail, actions directed to the site by an agent of the parent alone are eccentric under accepted norms of parental oversight of a subsidiary's site. Id.
In the present case, the evidence shows that Richard Ter Maat, as an officer and director of AAA and MIG, was involved in the operational decision-making at the site. The dispositive question is whether his conduct and that of AAA was done outside the norms of corporate conduct so as to be considered done on behalf of AAA rather than MIG.[13]
The pertinent evidence establishes that MIG paid AAA a management fee to reimburse AAA, in part, for its performing certain administrative functions for MIG related to the site. Numerous outside parties who were involved with the site, including the IEPA and waste haulers, considered AAA to be the operator. Some venders sent correspondence and invoices to AAA for services related to site operations. Additionally, Richard Ter Maat sent several letters to the IEPA pertaining to operational matters at the site which he signed as president of AAA. He also sent a letter to the Illinois Division *765 of Land/Noise Pollution Control pertaining to an operating permit for the site which was also signed by him as president of AAA. While defendants attempted to explain these letters away as aberrations, the letters speak for themselves. Furthermore, there are several letters from AAA's environmental consultant, M. Rapps Associates Inc., addressed to Richard Ter Maat and AAA which discuss pollution and clean-up issues at the site.
On the other hand, as defendants point out, there is also correspondence between Rapps and MIG and the IEPA and MIG which also pertains to operations at the site. All this shows, however, at best is that AAA and MIG both were involved as operators at the site. Nothing in CERCLA, or the case law interpreting it, prohibits a finding of more than one operator liable for a site.
The court finds that there is sufficient evidence, irrespective of the evidence related to AAA's control of MIG, to conclude that AAA was, at the very least, a joint operator of the site. As such, AAA bears direct liability under CERCLA for the clean-up costs. The court will determine AAA's share in a separate section of this order. Having found AAA directly liable as an operator under CERCLA, the court need not address the issue of whether AAA is liable indirectly under a veil-piercing theory.
2. Richard Ter Maat
While the Bestfoods decision offers significant guidance on the meaning of an operator for purposes of direct liability under CERCLA, the Court was careful to point out that CERCLA does not impinge on established corporate principles under state law. See Bestfoods, at 1880. Prior to Bestfoods, however, the Seventh Circuit held that a corporate officer could be held directly liable as an operator under CERCLA irrespective of state veil-piercing law. Sidney S. Arst Co. v. Pipefitters Welfare Educ. Fund, 25 F.3d 417, 420-21 (7th Cir.1994). This court respectfully believes that the Bestfoods case directly applies to, and therefore trumps, the Sidney S. Arst decision. Consequently, the only way plaintiffs can attribute individual liability as an operator to Richard Ter Maat, as an officer of both MIG and AAA, is derivatively under state veil-piercing law.
Efforts to pierce the corporate veil are governed by the law of the state of incorporation, Stromberg Metal Works, Inc. v. Press Mechanical, Inc., 77 F.3d 928, 933 (7th Cir.1996), which in this case is Illinois. In Illinois, a corporation's veil of limited liability may be pierced only if there is such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and if the circumstances are such that adherence to the fiction of separate corporate existence would sanction a fraud or promote injustice. Hystro Prod., Inc. v. MNP Corp., 18 F.3d 1384, 1388-89 (7th Cir.1994). In determining whether to disregard a corporate entity, the court will consider a number of factors, including: (1) inadequate capitalization; (2) failure to issue stock; (3) failure to observe corporate formalities; (4) nonpayment of dividends; (5) insolvency of the debtor corporation at the time; (6) nonfunctioning of other officers or directors; (7) absence of corporate records; and (8) whether the corporation is a mere facade for the operation of dominant stockholders. Ted Harrison Oil Co., Inc. v. Dokka, 247 Ill.App.3d 791, 187 Ill. Dec. 441, 617 N.E.2d 898, 901 (4th Dist.1993). The court may also consider whether the dominant individuals commingled corporate funds with personal funds or preferred themselves as creditors. Id. When such factors are coupled with some element of injustice or fundamental unfairness, the corporation will be considered as an aggregate of persons both in equity and law and its officers, directors and shareholders will be held liable for the corporation's obligations. Id. That being said, a court should reluctantly pierce the corporate veil. Id. The party seeking to have the corporate entity disregarded must come forward with a substantial showing that the corporation is really a dummy or a sham for a dominating personality. Id.
The present case is unique as the officers, directors and shareholders, of which Richard Ter Maat is more than one, chose to set up two corporations, one to operate the site (MIG) and another to haul garbage to the site (AAA). At first glance, one might be *766 suspicious that two corporations were formed where one could do the job. But that is the nature of corporate law, and there are many legitimate benefits, not the least of which is related to taxes, that might motivate such an organizational move. Moreover, nothing in CERCLA purports to reject the bedrock common-law principle respecting corporate structure. Bestfoods at 1883. The particular structure and functions of the corporation alone do not justify attributing liability to Richard Ter Maat individually.
Plaintiffs contend that Richard Ter Maat is liable as the alter ego of MIG and AAA.[14] The court will assess this contention in light of the various factors recognized under Illinois law, keeping in mind plaintiffs' burden of a substantial showing.
First, there is no evidence of undercapitalization. While MIG did not have tremendous resources, it was able to function financially on its own for many years. Second, stock was issued by both corporations. Third, corporate formalities were in fact observed. The evidence shows that while Richard Ter Maat was president of each corporation, decisions were made collectively. Simply because Richard Ter Maat demonstrated a leadership role does not reflect dominance. Additionally, regular meetings were held and books were kept for both corporations. Both corporations also filed corporate tax returns. Similarly, each corporation employed a controller, Phil Stevens, to maintain corporate accounting functions. Fourth, the evidence shows that the other officers and directors performed specific, identifiable functions for each corporation. While Richard Ter Maat may have been the leader, it was not a oneman show. Fifth, although plaintiffs point to some questionable corporate minutes, the overall evidence demonstrates that corporate records were maintained for both MIG and AAA. Sixth, there is no evidence sufficient to show that either corporation was a mere facade for the operation of Richard Ter Maat. These foregoing factors do not justify piercing the corporate veil.
The remaining factors, while arguably supporting piercing the corporate veil of MIG, are insufficient to do so in light of the factors pointing the other way and plaintiffs' burden of a substantial showing. There was no evidence of any payment of dividends, although that is not entirely unusual in small corporations. As for the insolvency of MIG, it only became insolvent once the CERCLA obligations were imposed on it. Prior to that time, it maintained its own financial vitality. The fact that AAA prospered comparatively does not show MIG's insolvency. Lastly, there is some suggestion that AAA and Richard Ter Maat preferred themselves as creditors. Given the unusually low tipping rates charged AAA by MIG (irrespective of AAA's volume), the lease arrangement for heavy equipment and the management fees paid by MIG to AAA, it is evident that AAA prospered at MIG's expense. Such an arrangement is not entirely unusual as between two corporations. Ultimately, of course, Richard Ter Maat received the benefit of AAA's prosperity through the sale of AAA. Whether that was part of some grand fraudulent scheme or only last minute manipulations by a shrewd business person, the evidence simply does not answer. Hinting at or suggesting such matters is not enough in light of state corporate law. The court finds that plaintiffs have failed to prove a basis to pierce the corporate veil as to either AAA or MIG.
Admissibility of Parnello Affidavit
On June 24, 1988, BFI submitted, via its legal counsel, the affidavit of one of its employees, Joseph E. Parnello, to the United States Environmental Protection Agency (USEPA). The letter accompanying the Parnello affidavit states, in pertinent part, that the affidavit is submitted in response to the USEPA's contention that BFI "has a continuing obligation to supply information relevant to Belvidere Municipal Landfill No. 1." The letter further states that the Parnello affidavit "attests to the types and volumes of waste hauled from the Chrysler plant ... to the Belvidere Municipal Landfill No. 1 from *767 1967 to 1973." It further asserts that Parnello "started hauling Chrysler's waste in 1967 and continues to haul this waste to this day." The letter also includes a list of the types and approximate amounts of waste hauled from Chrysler for the seven-year period.
Parnello's affidavit itself states, in relevant part, that Parnello was hauling Chrysler waste to a BFI landfill in Davis Junction, Illinois and that he had hauled Chrysler waste to the Belvidere Municipal Landfill No. 1 from 1967 to 1973. Parnello also states that "[a]ll of the waste [he] hauled from Chrysler was taken to the Belvidere Municipal Landfill No. 1 until the landfill closed in 1973." The Parnello affidavit further states that during the seven-year period he hauled: approximately 15,000 gallons of infilco sludge every two months, approximately three to five 20 cubic yard loads per week of paint sludge, approximately three to five loads of fly ash per week depending on the season, approximately two to five 30 yard loads of metal debris and scrap per week and approximately two 15 yard loads per day of industrial wastewater sludge. According to Parnello, Chrysler also disposed of about sixty drums of waste per week, with some of the drums containing solvents, tar or metal scraps.
Defendants seek to admit the Parnello affidavit as circumstantial evidence of what type and volume of Chrysler waste was hauled by Parnello during the period of 1973 to 1975. Plaintiffs contend the affidavit is inadmissible hearsay.
Federal Rule of Evidence 801(d)(2) governs the admissibility of the Parnello affidavit. Rule 801(d)(2) provides that an admission by a party opponent is not hearsay, and therefore admissible, if it "is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship...." Parnello's affidavit, while arguably admissible under subsection (A), qualifies as an admission by BFI under subsection (B), (C) and (D). The cover letter by BFI's attorney reflects that BFI had adopted a belief in its truth as it was submitted to the USEPA and also that BFI authorized Parnello to make the statement. Additionally, as to subsection (D), Parnello was an employee of BFI at the time he made the affidavit and it concerned a matter within Parnello's employment. Accordingly, the court admits the Parnello affidavit as an admission by BFI.
Chrysler Waste
The parties have presented the twin issues of whether an adverse inference can be drawn based on Chrysler's alleged failure to produce all documents relevant to disposal of its wastes for the period 1973 to 1975 and whether such an inference can be attributed to BFI for its similar failure. A related issue is whether section 103(d) of CERCLA, 42 U.S.C. § 9603(d), required BFI to retain all records of its operation at the site. The court finds it unnecessary to decide these issues as there is sufficient evidence to infer that Chrysler waste did in fact go to the site during the period 1973 to 1975.
The undisputed evidence shows that Parnello, a BFI employee, exclusively hauled the Chrysler waste from at least 1967 to 1973. Additionally, the undisputed evidence demonstrates he exclusively hauled Chrysler waste after 1975. Other evidence strongly suggests that he also hauled the Chrysler waste from 1973 to 1975.
The big mystery, of course, is where did he haul it during the 1973-75 period. In that regard, the evidence shows that from 1967 to 1973 Parnello hauled all of the Chrysler waste to BFI's site at Belvidere Municipal Landfill No. 1 and that from 1975 forward he hauled it to BFI's new site at Davis Junction.[15] David Boque, a management level *768 employee of Chrysler, testified by deposition that he was aware of Parnello hauling Chrysler waste to Belvidere Municipal Landfill No. 1 before 1973 and to Davis Junction from sometime in 1975 thereafter. Curiously, Boque had no knowledge of where Parnello hauled Chrysler waste from 1973 to 1975. Furthermore, BFI applied for a permit in early 1973 from Illinois Environmental Protection Agency to deposit liquid wastes from Chrysler in the site.
Additionally, an employee of BFI at the site, Kenneth Bodey, testified at trial that while he worked there Parnello hauled Chrysler waste to the site. According to Bodey, once or twice a week Parnello would bring in a twenty-yard container containing two different sludges. One sludge Bodey described as purple in color with a stiff consistency which he referred to as number five sludge and described as paint sludge. The second sludge, referred to as number seven sludge, was gray in color with a soft, but not liquid, consistency. Bodey described this as sewage sludge. Neither sludge smelled like solvents. Bodey also testified he saw Parnello bring infilco waste into the site in a twenty-yard box. According to Bodey, he also saw fly ash and cinders hauled into the site by Parnello, at a rate in the winter of two to three loads per day. To Bodey's knowledge, BFI's trucks went only to the site and no other landfill while BFI operated the site. While Bodey saw Parnello haul drums into Belvidere Municipal Landfill No. 1, he never saw him haul drums to the site.
Cleatos Atkinson, the former general manager of BFI, testified, and the documentary evidence shows, that in mid-1975 BFI sought and received significant hauling and disposal rate charges for liquid waste in the agreement covering 1973 to 1976. This was at about the same time BFI began hauling Chrysler waste to Pagel Pit and then Davis Junction.
When the court views this evidence in its entirety, the inescapable conclusion is that BFI hauled Chrysler waste, including sludges and infilco waste, to the site during the period of 1973 to 1975. The more difficult questions are how much was deposited and to what extent did these wastes contain solvents.
In that regard, the court finds persuasive the expert opinion of defendants' witness, Paul R. Ammann. According to Ammann, BFI contributed approximately 3,430,000 pounds of solvents to the site between April 1973 and June 1975.[16] This amount is based on the number of vehicles manufactured by Chrysler during this time period and the approximate amount of solvent-bearing waste generated therefrom. According to Ammann, the 3.4 million pounds of solvents deposited by BFI at the site represents about 91 percent of the total solvent content at the site.[17] The question of the impact of solvents at the site will be addressed when the court decides the allocation issue.
Appropriateness of Damages Under the NCP
Defendants contend that plaintiffs have failed to carry their burden of proving that the response costs they seek to recover were both necessary and consistent with the National Contingency Plan. Peppers counsel for defendants[18] further identifies 13 examples which he contends are not recoverable special damages.
Section 107(a)(4)(B) of CERCLA imposes liability on potentially responsible parties (PRPs) for "any other necessary costs of response incurred by any other person consistent with the National Contingency *769 Plan." 42 U.S.C. § 9607(a)(4)(B). Proof that a private party's response costs were consistent with the NCP is an element of a private cost recovery action under CERCLA. Bancamerica Commercial Corp. v. Trinity Indus., Inc., 900 F. Supp. 1427, 1451 (D.Kan.1995). The 1990 NCP, which applies to this action, specifies that any response action "carried out in compliance with the terms of an order issued by EPA pursuant to section 106 of CERCLA, or a consent decree entered into pursuant to section 122 of CERCLA will be considered `consistent with the NCP.'" 40 C.F.R. § 300.700(c)(3)(ii). Private party response actions not made pursuant to an EPA order or decree require substantial compliance with a list of requirements in order for the response action to be considered consistent with the NCP. 40 C.F.R. § 300.700(c)(5)-(6). Response actions taken pursuant to an EPA order or decree will be found consistent with the NCP if the actions were in compliance with the order or decree. Trinity Indus., 900 F.Supp. at 1452; United States v. Colorado & Eastern R.R. Co., Inc., No. 89-C-1786, 1993 WL 350171 (D.Colo. 1993), aff'd, 50 F.3d 1530 (10th Cir.1995); Central Maine Power Co. v. F.J. O'Connor Co., 838 F. Supp. 641, 647 (D.Me.1993). In fact, there is an irrebuttable presumption that actions taken pursuant to the terms of an EPA consent decree are consistent with the plan. Central Maine Power, 838 F.Supp. at 647.
In this case, the undisputed evidence shows that the response costs sought by plaintiffs were for actions taken pursuant to two administrative orders on consent executed after April 9, 1990. Therefore, the court finds the costs are consistent with the NCP.
Defendants contend that the oversight costs sought by plaintiffs related to the emergency removal and RI/FS activities are not recoverable, relying on United States v. Rohm and Haas Co., 2 F.3d 1265 (3d Cir. 1993). The Seventh Circuit has not addressed the issue. Two other circuit courts of appeals have, in addressing the issue, rejected the conclusion and reasoning of the Rohm case. See United States v. Lowe, 118 F.3d 399 (5th Cir.1997); see also Atlantic Richfield Co. v. American Airlines, Inc., 98 F.3d 564 (10th Cir.1996) (limiting Rohm to the narrower circumstance of removal actions).
After carefully reading all three cases and the applicable statutory provisions under CERCLA, the court respectfully disagrees with the Third Circuit and follows the decisions of the Fifth and Tenth Circuits. It appears that allowing oversight costs to be recovered best serves the broad remedial purpose of CERCLA and promotes the effective clean-up of environmental hazards. Accordingly, the court finds that plaintiffs are entitled to recover all of the oversight costs of the USEPA and IEPA.[19]
Defendants, alternatively, contend that certain costs are not recoverable and present an enumerated laundry list of contentions and commentary as support for their position. The court finds that the evidence supports plaintiffs' claims for costs as to all these matters. Only two warrant further discussion.
First, defendants contend plaintiffs' additional expenses of $392,055.89 in PRP search costs were duplicative and done in anticipation of litigation. Patrick McGrath, vice-president of Peterson Consulting, testified that $378,450 was expended to identify PRPs through the identification of generators and transporters and the specific volumes of waste they hauled or sent to the site. According to McGrath, this function was necessary to facilitate the de minimis settlement process. Furthermore, McGrath's expert report shows a delineation of the various tasks conducted by Peterson Consulting as part of the PRP search process. The court agrees that PRP search costs are not limited to the name of the PRP alone. Information related to who brought what and how much is particularly relevant to the de minimis settlement process. McGrath's testimony and report sufficiently support the claim for the costs related to the PRP search process. Therefore, *770 the court finds plaintiffs are entitled to the full amount sought.
Second, defendants contend that plaintiffs' claims for attorney fees are not recoverable because such claims are vague and plaintiffs have not shown they are "closely tied" to the actual clean-up. Plaintiffs respond that they are not seeking recovery for items related to litigation support in Golden & Associates' bills, that the bills from the law firms of McDermott, Will & Emery and Kirkland & Ellis are for administrative services provided to the MLTF and not legal services and that the computerized legal research charge from Lathrop & Norquist was for locating PRP addresses.
While plaintiffs' claims include some work performed by attorneys, they have shown it is "closely tied" to the actual cleanup activities. Defendants' objections do not specify particular costs that are attributable to litigation matters versus clean-up matters. Defendant agreed to do so where they believed there were discrepancies, and the court will not comb the record in search of such problems. Plaintiffs have sufficiently shown that their costs of $8,036,608.87 are necessary and consistent with the NCP.
Allocation of response costs associated with the emergency removal actions and the interim remedial measures (IRM)
Plaintiffs' expert, Edwin Raymond, testified in his trial affidavit that the costs associated with the emergency removal actions and the IRMs were $2,305,183.44 as of December 31, 1997. Plaintiffs contend that defendants[17] should be responsible for this entire amount because of their failure to properly close the site when they abandoned it in 1988. Plaintiffs further maintain that there will be future operation and maintenance costs associated with the IRMs and that the court should enter a declaratory judgment attributing all of the future costs to defendants.
Defendants respond that they should not be held liable for the full amount of the emergency removal and IRM costs because the presence of solvents, which were introduced by BFI, caused the emergency and interim remedial response. Defendants further contend that a portion of the costs should be attributed to the owners of the site because they had a legal obligation to participate in the proper closure of the site which was not eradicated by the agreement between the owners and defendants.
As will be seen in more detail later in this order, allocation of response costs is far from an exact science. This is equally true in the context of who should pay what for the emergency removal and IRM costs. Here, there are three potential parties: plaintiffs, defendants and the owners. The court will discuss each.
As for BFI, there is simply no evidence, expert or otherwise, to show that anything they did attributed to the need to take emergency removal and IRM action. There has been no showing that the toxicity contributed by BFI via the Chrysler waste stream caused these actions to be taken. While such toxicity will have an impact on the court's allocation for the other clean-up costs, it has no effect in this context. There is also no showing that anything else BFI did years before contributed in any way to the emergency nature of the initial response and the interim measures taken. There is also no evidence that BFI's closure of the site in 1975 contributed to these costs. Nor did the law impose any obligation on them to effect closure in 1988. Therefore, the court attributes zero percentage of the emergency removal and IRM costs to plaintiffs.
As for defendants, they clearly had an obligation under applicable regulations to properly close the site. It is also undeniable that they failed in this undertaking. Further, the experts, both plaintiffs' and defendants', agree that failure to properly close the site contributed to the need for emergency removal and IRM activities. Defendants left the site without proper slope and without a proper cap which resulted in excessive ponding of water and runoff of water, both of which contributed significantly to the extensive *771 leachate problem. There is no doubt that had the site been properly closed the need for emergency and interim actions would have been minimized. Defendants must share significantly in the costs for the emergency removal and IRMs.
That leaves the owners. Plaintiffs contend the owners should escape responsibility because they had an agreement with defendants that gave defendants the obligation to close the site. Nevertheless, the law places the responsibility for closure on both the owners and defendants. This obligation could not be bargained away. The evidence shows that, not only did the owners fail to take any action to close the site, they interfered with defendants proposal to do so by refusing to sign off on the closure plan submitted to the IEPA. While the court does not express an opinion on defendants' proposed closure plan, the key at this point is that the owners' refusal to become involved reflects a hands-off approach contrary to their legal obligations. As will be discussed more thoroughly later in this order in the allocation issue, the owners could not sit back and reap great financial rewards from their land while the very use of the land for which they benefitted contaminated the environment. Equity, which is the underpinning of the allocation process, will not allow it.
Having determined that defendants and the owners share the responsibility for the costs associated with the emergency removal and IRM activities, the court must decide what share each will bear. Of course, there can be no exactitude in this process.
That being said, and having carefully considered the evidence, including the expert reports and testimony, the court finds that defendants are eighty-five percent responsible and the owners are fifteen percent responsible. This division of responsibility is based on the fact that the operators were in the best position to effectuate a closure but refused to do so. While the owners foiled defendants' attempt to seek approval from the IEPA for defendants proposed closure, that did not prevent defendants from closing the site anyway. It was a poor exercise of judgment by defendants to throw up their hands and walk away simply because of the lack of cooperation by the owners.[18] A proper closure would have made a significant impact on the cleanup and response costs. On the other hand, the owners are not squeaky clean in all of this. Their persistent inclination to stick their heads in the sand is an irresponsible approach that cannot be overlooked. Had they and defendants worked together to close the site, which the law contemplated them doing, much environmental harm could have been avoided. As for future costs related to the IRMs, the court enters a declaratory judgment against defendants and the owners based on these percentages.
Whether MIG and AAA[19]should be considered a single party for purposes of allocating response costs
Plaintiffs contend that section 2(a)(2) of the Uniform Comparative Fault Act should apply and that MIG and AAA should be treated as a single party for allocation purposes. The court disagrees. In a contribution action such as this one under section 113 of CERCLA, defendants are severally liable and plaintiffs have the burden of allocating the harm to each defendant. See Ninth Ave. Remedial Group v. Allis Chalmers Corp., 974 F. Supp. 684, 688 (N.D.Ind. 1997). While it is true that MIG and AAA share the role of operator, they cannot share the liability. Any allocation of liability will take into consideration their dual role as operators of the site during their period of operation. In all likelihood each will bear an equal share of their joint allocation which will be decided in the allocation portion of this order. Such a result would not be inconsistent with several liability under section 113.
*772 Whether defendants can be declared liable for future response costs pursuant to section 113(g)(2) of CERCLA
Defendants object to the entry of a declaratory judgment against them for future response costs in the form of final remedial action. Defendants contend such costs are too speculative to base a declaratory judgment on. Defendants also argue that because the baseline risk assessment's focus shifted from solvents to metals after the close of discovery that they will be denied due process if they are not allowed to explore the bases for the metals-division remedy for future clean-up.
Section 113(g)(2) of CERCLA provides that "[i]n any such action described in this subsection, the court shall enter a declaratory judgment on liability for response costs or damages that will be binding on any subsequent action or actions to recover further response costs or damages." This language reflects Congress's intent to insure that a responsible party's liability, once established, will not have to be relitigated. American Nat'l Bank and Trust Co. of Chicago v. Harcros Chem., Inc., No. 95 C 3750, 1997 WL 281295, at *12 (N.D.Ill. May 20, 1997). The entry of a declaratory judgment as to liability is, therefore, mandatory under CERCLA. Id. (citing United States v. USX Corp., 68 F.3d 811, 819 (3d Cir.1995)). Moreover, the fact that future costs are speculative is no bar to a present declaration of liability. Id. Additionally, defendants do not cite, and the court cannot find, any authority recognizing a due process claim in this context. Defendants have had the same opportunity as plaintiffs to consider and respond to the USEPA's approach to this case. Allocation responsibility can be assessed at this point and applied to future response costs.
Whether plaintiffs are entitled to interest from defendants on plaintiffs' costs related to the site
Plaintiffs seek interest at the rate of 5.6% for a period from January 31, 1995, the date they served a demand letter upon defendants, to the date of judgment. Defendants only objection is to reiterate their contention that plaintiffs are not entitled to recover certain underlying clean-up costs as argued in other sections of their post-trial brief. Defendants do not raise any argument directly in opposition to the imposition of interest for the period or the rate sought.
Because section 107(a) allows for interest, and defendants have not directly objected to its imposition, the court will award interest for the time period and rate sought. Such an award will only apply, however, to the percentage of costs awarded to plaintiffs and against defendants as set forth in other sections of this order.
Whether solvents caused the listing of the site on the National Priorities List (NPL) or caused any element of the remedy
As plaintiffs correctly point out in their reply brief, the issue of what caused the site to be placed on the NPL is of no consequence as to what remedies are ultimately necessary to clean up the site. On the other hand, while plaintiffs' experts point to the remedies as being driven by the presence of metals, there is also evidence that volatile organic compounds (VOCs) are also present in significant levels. Furthermore, VOCs, while present in solvents, are also found in ordinary municipal and industrial waste.
It cannot be said that the remedies in this case are entirely independent of solvents. The court has already found that Chrysler waste, which included solvents, was placed in the site during the BFI period. It may prove impossible to separate the solvent from the non-solvent VOCs. That, however, supports the court's conclusion that the remedies are likewise indivisible. Accordingly, the court finds that solvents are, in part, causing some elements of the remedy. The court will apportion this causation in its allocation discussion.
Whether defendants closed the site on June 30, 1988
Plaintiffs contend that under the state environmental regulations applicable at the time, see Ill.Admin.Code tit. 35, §§ 807.101 et seq. (807 regulations), defendants failed to properly close the site but instead abandoned it. Defendants make a half-hearted response, essentially blaming the owners and *773 the IEPA for preventing them from properly closing the site.
The court will take little time addressing this issue. While several aspects of this case are murky, it is crystal clear that defendants walked away from the site without properly closing it. No legitimate argument can be made that defendants did not abandon the site within the meaning of the 807 regulations. Therefore, the court finds that the site was not closed by defendants on June 30, 1988 or anytime thereafter.[20]
Whether defendants should bear any of the orphan share
An orphan share in the context of CERCLA contemplates an inability to account for all hazardous waste streams or to assign a measure of monetary responsibility to an otherwise responsible party. United States v. Kramer, 953 F. Supp. 592, 595 (D.N.J.1997). The parties here do not take issue with this definition. Rather, they disagree as to whether defendants should bear any of the orphan share in this case.
In a contribution action such as this one, the court enjoys broad discretion to consider and apply such equitable factors as it deems appropriate to achieve a just and fair allocation among liable parties. Kramer, 953 F.Supp. at 597. Section 113(f) permits the court to allocate response costs to all liable parties. Id. at 598. Thus, nothing in CERCLA or its legislative history prohibits the court from allocating orphan shares to all liable parties. Id.; see also Charter Township of Oshtemo v. American Cyanamid Co., 898 F. Supp. 506, 508 (W.D.Mich.1995) (in a section 113(f) contribution claim, the orphan shares must be equitably apportioned among all solvent PRPs). Furthermore, the orphan shares should be apportioned to the PRPs (both plaintiffs and defendants) according to their relative equitable share. Kramer, 953 F.Supp. at 598; Charter Township, 898 F.Supp. at 509.
The court agrees with the analysis in Kramer and Charter Township and rejects the contentions of defendants. To allocate orphan shares to all liable parties is not inconsistent with several liability under section 113. Additionally, such an approach is entirely consistent with equitable considerations applicable to an allocation scheme under section 113. To properly effectuate the purposes of CERCLA, all liable and solvent parties must share the cost in proportion to their relative fault.
In this case, plaintiffs' expert, William Hengemihle, testified that approximately 34,615 cubic yards of waste are attributable to orphan operators and about 510,580 cubic yards to orphan transporters. According to Hengemihle, the total orphan share is 1.58 percent to be distributed on a pro rata basis to all parties. Defendants have not countered this allocation. Accordingly, the court accepts Hengemihle's apportionment of the orphan share to the respective parties, including defendants.
Whether BFI violated its landfill permit by failing to remove the waste deposited in the Kennedy-Mollendorf area prior to May 5, 1972
It is undisputed that BFI's landfill operating permit, issued by the IEPA, contained a special condition, among others, requiring BFI to remove the waste from the Kennedy-Mollendorf area and to seal the area according to design specifications. It is further undisputed that BFI never met that condition. What is in dispute is whether the IEPA modified BFI's permit by allowing BFI to leave the waste but requiring it to take certain actions, including covering the waste with clay.
It is not clear whether BFI actually complied with the substitute conditions, even if they were approved by IEPA. Contrary to BFI's assertion in its post-trial brief, Raymond De Wane did not testify that BFI complied with the special conditions. Rather, De Wane testified that cover was placed on the Kennedy-Mollendorf area during its use prior to BFI becoming the operator. There is some indication that BFI covered the Kennedy-Mollendorf area and that they *774 placed no additional waste there, as reflected by the site characterization memorandum. There is no evidence however, to show that the other conditions were met.
Nonetheless, the court cannot conclude that the IEPA ever formally approved the substitute conditions. Clearly, several letters from the IEPA to BFI during the early to mid-part of 1973 reflect the IEPA's insistence that the original condition be met and that BFI remove the waste from the Kennedy-Mollendorf area. The memorandum from the July 23, 1973, meeting between BFI, Wallace Koster and the IEPA is nothing more than that, a memorandum. It is far from an official authorization from the IEPA. In fact, one would expect a supplemental permit to have issued had the IEPA formally approved the change. The fact that the IEPA records after July 23, 1973, do not indicate a continued belief by the IEPA that BFI was violating its permit is not particularly persuasive.
Therefore, the court finds that the original condition of the permit regarding the Kennedy-Mollendorf area was not modified or substituted for by the IEPA. Having reached that conclusion, the court finds that BFI did not comply as it never removed the waste. The significance of this finding, if any, will be addressed in the allocation section of this order.
Whether Richard Ter Maat's deposition testimony can be considered substantively as admissions of a party where he also testified at trial
Richard Ter Maat's deposition testimony contains admissions by a party and is, therefore, admissible as substantive evidence. Fed.R.Evid. 801(d)(2). It may be used as substantive evidence at trial even if Ter Maat testifies (which he did here). Fed.R.Civ.P. 32(a); Aircraft Gear Corp. v. Kaman Aerospace Corp., No. 93 C 1220, 1996 WL 65990, at *1 (N.D.Ill. Feb.12, 1996); W.R. Grace & Co. v. Viskase Corp., No. 90 C 5383, 1991 WL 211647, at *2 (N.D.Ill. Oct.15, 1991).
Having said that, the court also finds the submitted evidence from Ter Maat's deposition to be vague and of little evidentiary value. Much of what Ter Maat testified to regarding his activities related to the site could apply equally to his role as an officer of MIG. Absent an opportunity for further explanation, such statements have little evidentiary weight.
The environmental conditions at the site prior to October 1975 and whether BFI and the owners had a duty to disclose those conditions to defendants
Defendants contend that the groundwater at the site was "contaminated" prior to their becoming operators in October 1975, that BFI and the owners had a duty to disclose the condition and that they wilfully failed to disclose the condition in an effort to spread liability under CERCLA. Defendants assert that this failure to disclose should effect the allocation of responsibility for response costs.
Wallace Koster testified that as of March 1972 he believed there was a "strong likelihood" that the groundwater at the site was being polluted by previous refuse disposed of at the site. In fact, Koster stated such possibility in a letter to the Illinois Division of Land Pollution Control (predecessor of the IEPA) as part of the application process to operate the site in March 1972. According to Koster, he believed as of March 1972 that due to the geological conditions of the Kennedy-Mollendorf area that it would "in all likelihood lead to groundwater pollution." Furthermore, a testing company hired to test the groundwater sent results to Koster stating that two of the water samples "had a distinct garbage odor" which indicated that leachate was contaminating the groundwater. BFI also admits that the groundwater samples from 1971-72 showed increases in metals, clorides, hardness and dissolved solids. According to BFI, no tests were done to ascertain if any solvents or VOCs were in the water.
Ter Maat testified that he requested the information submitted by Koster from the IEPA but the IEPA refused to provide it because BFI considered the information a trade secret. According to Ter Maat, the IEPA refused to provide the information on "many, many occasions." There is no evidence to show that BFI ever made Ter Maat aware of the "strong likelihood" of groundwater contamination or of the test report stating *775 that the groundwater samples smelled like garbage or contained increased levels of metals, chlorides, hardness and dissolved solids.
It is not necessary for the court to now conclude whether BFI had a hard and fast duty to disclose such information back in 1972. On the other hand, the court considers such evidence relevant to the issue of BFI's conduct as it bears on the equitable considerations of allocation.
Whether the settlement by BFI and CNA Insurance Companies is admissible to show bias of plaintiffs' allocation expert and the ability to pay of the owners
During trial, defendants sought to have Floyd Wisner, an attorney who had represented the CNA Insurance Companies (CNA), testify regarding a settlement agreement entered into between BFI and CNA pertaining to numerous insurance policies and insureds. Defendants contended at that time that such evidence was relevant to the issue of the owners' ability to pay and to the issue of the bias of the proposed allocation by BFI to be attributed to the owners. Wisner then testified as an offer of proof. After hearing Wisner's testimony via the offer of proof, the court ruled that it did not consider the evidence admissible but would reconsider after the parties briefed the issue post-trial. The parties submitted their post-trial briefs on this issue under seal, as the transcript of Wisner's testimony on this issue was under seal.
In their post-trial brief, defendants contend that Wisner's testimony shows that BFI and the other plaintiffs "postur[ed] with their experts to assign a minimal amount of liability through their allocation expert to the owners." In essence, defendants contend that Wisner's testimony is relevant to attack plaintiffs' allocation scheme and the motivation for it. Plaintiffs contend such evidence is irrelevant and not admissible under Rule 408 of the Federal Rules of Evidence.
Rule 408 generally prohibits evidence of settlement negotiations except "when the evidence is offered for another purpose, such as proving bias or prejudice of a witness...." In this case, Wisner's testimony is offered to show the bias or prejudice of plaintiffs' allocation expert.
The court stands by its original ruling that such evidence is inadmissible. There must be significant reason to admit evidence of otherwise confidential settlement agreements under Rule 408. Defendants have simply not established the nexus between BFI's settlement dealings with CNA and BFIs' allocation expert's opinion as to what allocation is attributable to the owners. Clearly, because BFI settled with the owners and therefore acquired the owners' allocation responsibility, it is motivated to keep that allocation as low as possible. There is no showing that the settlement with CNA injected any bias into the allocation expert opinion that would not otherwise be there as a result of the allocation expert being a witness testifying on behalf of BFI.
Limit of plaintiffs' contribution rights
This is really a non-issue in this case. It appears from the post-trial briefs that the issue is based on semantics and that the parties agree in substance that plaintiffs are entitled to seek contribution for $8,036,608.87 before any settlement set-offs and allocation are applied or any pre-judgment interest is assessed.
Whether BFI complied with the lease requiring it to provide insurance for, and indemnify, the owners
The relevance of this issue eludes the court. Even if defendants could establish that BFI did not comply with the insurance and indemnity provisions of the lease between BFI and the owners, that is of no concern to defendants. More importantly, it is of no concern to the court.
Whether MIG complied with its lease provisions relating to rental payments, insurance agreements, indemnities and closure of the site
The court agrees with defendants that the issue of whether MIG complied with the lease requirements as to rent, indemnity and insurance has no relevance to this case. The issue of MIG's alleged violation of its lease is *776 no more relevant than the issue of BFI's compliance with its lease.
As for the lease provisions pertaining to conditions at, and closure of, the site, while arguably relevant, they are of negligible weight. There is ample evidence, independent of the lease, upon which the court can assess MIG's activity as it related to operation and closure of the site. It is the impact of that activity on the site, not its effect on the lease, that is critical to this court's allocation assessment.
Whether MIG violated its operating permit by irrigating the landfill with leachate
It is undisputed that MIG did in fact recirculate leachate from the leachate pond back into the landfill and that such a practice was in violation of its operating permit. It is also undisputed, however, that inspectors for the IEPA were aware of this practice and never cited it as a permit violation. According to Robert Wengrow, who was in charge of the regional IEPA office having jurisdiction over the site, it was customary during that time period to handle leachate that way because there was nothing else that could be done with it.
It is clear that MIG violated its permit by pumping the leachate from the collection pond back into the landfill. It is equally clear, however, that the IEPA was aware of the practice and allowed it to continue. While the IEPA's ratification of MIG's conduct does not eradicate MIG's responsibility, it does mitigate it significantly. The court will consider the entire circumstance of the situation when determining MIG's allocation responsibility.[21]
The legal effect of the settlement proceeds received by plaintiffs
Plaintiffs have entered into settlement agreements with sixty-four parties regarding response costs who, in turn, assigned their contribution claims to plaintiffs. Further, the USEPA reached a de minimis settlement with several PRPs as to response costs, with sixty-eight settlers assigning their contribution claims. Defendants contend that the actual amount of the settlements with the de minimis settlors and the third-party defendants should be credited against the RI/FS costs before any further allocation is determined. As for the settlement between plaintiffs and the owners, defendants contend that the owners actual allocated liability (as determined by the court) be setoff rather than the amount of the settlement itself.
There are two recognized approaches for crediting the contribution of settling parties. One, the pro tanto rule considers the settlement amount. See Atlantic Richfield Co. v. American Airlines, Inc., 836 F. Supp. 763, 766 (N.D.Okla.1993). The other is the proportionate credit rule which applies the actual amount of allocated liability of the settling party. See Allied Corp. v. Acme Solvent Reclaiming, Inc., 771 F. Supp. 219, 223 (N.D.Ill.1990). Under the circumstances of this case, the court will apply the proportionate credit rule as that is the rule followed by courts in this circuit and by the majority of courts addressing the issue. See, e.g., United States v. SCA Serv. of Indiana, Inc., 827 F. Supp. 526, 533-36 (N.D.Ind.1993); Allied Corp., 771 F.Supp. at 223; Edward Hines Lumber Co. v. Vulcan Materials Co., No. 85 C 1142, 1987 WL 27368, at *2-3 (N.D.Ill.1987). As such, the court will consider the allocation amount for the settling parties when it takes up the allocation issues.
Whether the owners had responsibility for leachate management at the site
The evidence does not support defendants' contention that the owners had responsibility for leachate management at the site. They rely on the 1972 permit application which provides that treated leachate would be used periodically to irrigate the owner's fields and *777 that the owners would maintain the completed landfill. This certainly implies that the owners had responsibility for leachate maintenance once the site was completed (or closed). It does not imply, however, that they had responsibility for the leachate during the active operation of the site. Of course, the evidence shows that the site never was completed (or closed). Hence, any responsibility owed by the owners never came to fruition.
Moreover, even if it is assumed that the actual permit incorporated the permit application parameters, the permit changed the leachate requirement as to irrigating the fields. Thus, any contemplated responsibility for leachate management by the owners was eradicated when the IEPA disapproved the method called for in the permit application. Therefore, the court finds the owners had no responsibility for leachate management at the site.
The proper method of allocating response costs
The landfill at issue in this case was in existence and actively operated from the late 1960s to the late 1980s. For twenty years, a variety of waste was brought to, and deposited in, the landfill. Over 3.5 million cubic yards of waste were landfilled during that time.
All during this time, as the volume and variety of waste increased, what was there began to decompose. The decomposition process resulted in the waste returning to its base constituencies. This further led to a complex and ill-defined mass of substances.
All of this waste also contained a certain amount of water which mixed with the base elements from the decomposition process to create what the experts call leachate but which may fairly be described as toxic soup. This "soup" eventually intermixed from various locations throughout the landfill and worked its way into the surrounding soil and finally into the groundwater. And like grandma's special soup, the final product was the result of a unique blend of ingredients, some known and some unknown.
Now the parties ask, and the law requires, that this court analyze the "soup" and determine who put in which ingredients and how much. Like someone trying to figure out what makes Coke taste the way it does, this is no easy task. Unraveling a twenty-year process involving millions of cubic yards of waste and complex ecological, biological and geological forces is likely to yield less than precise results.
The parties have each taken a stab by offering their experts' opinions as to who should be responsible for what. But the expert opinions merely reflect the imprecision of the task at hand. And, of course, each parties' experts' ultimately arrive at conclusions which most favor their clients. For example, plaintiffs conclude that volume should be the only basis for allocating responsibility. Defendants, on the other hand, preach toxicity and cost causation as the way to go.
Further complicating matters, is the evolving nature of the law itself and its application to this particular landfill. In the early and midyears of the landfill, the law was in its embryonic stages. Techniques for operating a landfill, which today seem archaic, were acceptable back then. Methods that were approved ten to twenty years ago are being rejected today. It is difficult to attribute fault on such a sliding scale. Much of what was done acceptably back then is now improper when viewed through the lens of today's regulatory schemes.
Additionally, as to the many issues raised in this case, most of which ultimately bear on the allocation issue, there is little guidance in the way of case law, particularly at the appellate level. This is most likely due to the fact that many of these cases settle. The high rate of settlement is probably attributable to the inherently unpredictable results a trial will bring. Further, most of the cases performing allocations rightfully caution that each case is unique and should provide little, if any, guidance in future allocation matters. Given the dearth of cases on many of the issues, combined with the less than precise language of CERCLA itself, the court is plowing new ground on many issues. The bottom line is the court is left with an underdeveloped *778 legal framework in which to resolve the many issues raised by the parties.
Of course, because an allocation in a CERCLA contribution action is an equitable matter, the court may take into consideration all relevant conduct of the parties that might demonstrate fault on their part. This results in an inordinate amount of mudslinging in an effort to make each party look like the bad guy. Unfortunately, this has a tendency to detract from other issues in the case which require the parties' and the court's attention. Not only that, but neither party comes out smelling like a rose. There is ample evidence that all parties failed to play entirely by the rules (some of which were surely changed in the middle of the game) and also contributed significantly, whether by volume or toxicity, to the contamination at the landfill.
After having analyzed many cases, considered numerous articles, reviewed volumes of evidence and studied the post-trial briefs, the court concludes that the allocation in this case will be a "best guess" proposition within the exercise of its discretion. The court will, of course, make every effort to carefully consider all relevant factors in assessing responsibility. Ultimately, however, that assessment will be limited by the nature of what must be considered. And, as has been said many times before, the allocation arrived at here should not be applied to other factual scenarios in other cases.
Both parties in this case have presented their suggested methods of allocating response costs. In support of their respective positions, they have submitted testimony and reports from allocation experts. In turn, the experts have rendered allocation opinions that are based on percentages attributable to the various classes (owners, operators, generators and transporters) and then percentages within each of the classes. Additionally, the experts take into consideration various equitable factors, each giving different factors varying amounts of weight in arriving at their final conclusions.
While the court appreciates the efforts of the parties and their experts, ultimately the equitable allocation of response costs belongs to the court. As discussed previously, this is a task immune to precision. Although dollars are at issue, and, hence, numerical divisions are inevitably called for, any numerical assessment will be illusory at best.
That being said, there are several propositions that the court will definitively apply in allocating costs in this case. First, the court does not find volume alone to be an adequate measure of allocation. Such an approach ignores many other relevant factors, the most important of which is the conduct of the parties. Second, although defendants' cost allocation approach is much more expansive in its application, the court cannot agree with defendants' emphasis on toxicity. While the knowing placement of toxic substances in the landfill reflects relevant conduct of the parties, any effort at quantifying toxicity as it relates to the ultimate problems at the landfill is nearly impossible under the disputed testimony of the experts in this area. Finally, while both parties' experts' approaches have some redeeming qualities and take into consideration some relevant conduct, they are, in their efforts to identify waste streams and establish a nexus between those streams and the ultimate clean-up costs, somewhat wanting. After considering the experts' testimony and reports, the court is convinced that there are significant limits as to the qualitative and quantitative conclusions that can be reached in this case.
The court finds that the truest measure to assess equitably the liability in this case is to consider the conduct of the parties as it relates to their respective categories of owner, operator, generator and transporter. In other words, liability should be based on a percentage of fault rather than a percentage of volume or a percentage based on a particular waste stream. Such factors that bear on fault include: (1) how much waste was contributed; (2) the type and nature of the waste; (3) compliance with regulatory schemes; (4) operation of the landfill, including closure and post-closure activities; and (5) cooperation and involvement in cleaning up the site. The court will consider each of these factors and others as it applies to the relevant conduct of the parties. This will *779 provide an evidentiary basis for the allocation. Once that task is accomplished, the court will then assess a percentage of liability to each of the parties based on their relevant conduct as it relates to the condition of the landfill and the related response costs.
It is first necessary to make an inter-class allocation between the four statutory groups: owners, operators, transporters and generators. The court will assess a percentage of liability to each of these groups.[22] Once that is accomplished the court will determine the percentage of liability on an intra-class basis.
The first group the court will consider are the transporters. The court considers the transporters to have the most tenuous connection to the site.[23] They merely hauled waste to the site. They, with the exception of BFI and AAA, had no involvement in how the site was operated or whether the site operators complied with applicable regulations. On the other hand, they were necessary players in the creation of a massive garbage pile. The court finds, based on their relative contribution to the site in terms of bringing the waste there, that the transporters should be assessed a ten percent share of the present and future clean-up costs.
Turning to the generators, they were responsible for the waste in the first place. The waste, without which there could be no landfill, was the by-product of the generators' various operations, whether private or governmental. While they had no involvement with the operations of the landfill, they cannot avoid significant liability based on the sheer volume of the waste they created and contracted to have taken to the site. The court finds the volume of waste of the generators is the best method under the facts to determine fault of the generators. Accordingly, the court allocates forty percent of the present and future clean-up costs to the generator class.
That leaves the owners and operators. While the court will allocate a separate percentage of the entire liability to each of these groups, the court emphasizes that the owners group is, next to the operators, the most intimately related to the site in this case. The site was located on the farm where they resided and conducted other business operations. They were present at or near the site from time to time and were in a position to observe operations. Further, they received copies of various correspondence between the operators and state regulatory agencies concerning operations at the site and compliance with regulations. They also held regular meetings with the Ter Maats as to the status of the site and negotiated payment terms based on the volume of the waste going into the site. Over the entire period of the landfill operation they received payments of over one million dollars. Based on these circumstances, the court allocates a share of five percent of the present and future clean-up costs to the owners.
What remains is a forty-five percent share of the present and future costs to be allocated to the operators. The court finds this to be an appropriate share based on the extensive involvement of the operators in creating and managing the landfill. It was the operators who held the lion's share of responsibility for what went into the site, how it went in, where it went in and what happened to it after it went it. The operators also had primary responsibility for ensuring compliance with state and federal regulatory schemes. A forty-five percent allocation is an entirely appropriate assessment of liability to the operators.
There remains, of course, the issue of intra-class allocation as between BFI and MIG/AAA as operators and transporters. The court will first address the operator allocation issue. This allocation, which will be based on a whole percentage of the forty-five percent operator class share,[24] will reflect *780 consideration of the five aforementioned factors relevant to the fault of each. Once the relevant factors are discussed as to each, the court will arrive at a percentage for each.
As to the volume of waste, it is evident that the largest amount of waste was placed in the site during the MIG/AAA period of operations. Roughly 83 percent of the total volume of waste in the landfill was placed there during the MIG/AAA operation. Approximately 17 percent went in under the BFI era.[25]
Of course, these figures do not account for the approximately 3.4 million pounds of solvent-bearing waste brought to the site by BFI during its operating period. There is no evidence to quantify how the 3.4 million pounds of solvent waste computes into volume. Nonetheless, while the court will not strain to adjust the estimated percentages of volume, the court considers the additional Chrysler waste to have a volumetric impact significant to its assessment of this factor. In other words, BFI's liability will be based in part on the additional volume of waste it contributed to the site via the Chrysler solvent waste.
The next factor is the type and nature of the waste. For the most part, this factor is a wash as the waste going into the site during the BFI and MIG/AAA periods was a homogeneous stream of residential, commercial and industrial garbage. This factor would have little effect on the allocation equation except for the Chrysler solvent waste attributable to BFI. This waste was highly toxic and contributes to the groundwater contamination at the site. That is not to say, however, that the VOCs and SVOCs at the site all came from Chrysler waste. Some surely came from the other waste placed there. But it is undeniable the toxicity of the Chrysler waste had a significant impact at the site.
The Chrysler waste was also in liquid and semi-liquid form which would have accelerated its trip to the groundwater. The liquidity of the Chrysler waste would also have added to the mobility of other contaminates at the site. It did little good to place cover over the site to keep liquid out when liquid was being placed into the site. The court finds this factor to weigh heavily in its assessment of liability to BFI.[26]
The third relevant factor is the parties' compliance with applicable regulatory schemes. The court will first point out that it gives virtually no weight to the evidence of the IEPA's reports of non-compliance of MIG/AAA based on blowing litter at the site. This case is clearly not about blowing litter.
There is also evidence that MIG/AAA pumped leachate from the retention pond back over the landfill and that this was in violation of applicable regulations. While this fact will have more significance when the court discusses how the landfill was operated, it causes less weight under this factor as the evidence shows the IEPA was aware of the practice and allowed it to go on.
The fact that BFI placed Chrysler solvent waste into the site without obtaining the proper permits weighs heavily against BFI. It is one thing to allow litter to blow around, it is entirely another to dispose of over 3 million pounds of solvent waste knowing that the regulatory agencies were unwilling to allow such disposal.
Finally, as for the issue of BFI's failure to remove the waste deposited in the Kennedy/Mollendorf area prior to 1971, such non-compliance with their operating permit is minimized somewhat by the IEPA's knowledge of their non-compliance and its apparent willingness to allow it. While such non-compliance is relevant, it is not particularly weighty.
That brings the court to the issue of how BFI and MIG/AAA operated the site, including closure and post-closure conduct. As for BFI, its most significant downfall was the placement of 3.4 million pounds of liquid and semi-liquid solvent waste at the site. Without a doubt, this contributed substantially to *781 contamination at the site. Exactly how much, no one will ever know. But as discussed earlier, exactness is neither obtainable nor necessary in this case.
BFI also failed to excavate the Kennedy/Mollendorf waste which was located in what was once a gravel pit. While there was evidence on both sides of the issue, the court finds that the Kennedy/Mollendorf area was, to some degree, exposed to the groundwater, at least during the spring when water levels were higher. This finding is reinforced by the IEPA's requirement contained in BFI's operating permit that the waste in the Kennedy/Mollendorf area be excavated and moved to another part of the site. This failure to excavate the waste allowed leachate from the waste a much more efficient access to the groundwater. While it is not established from the evidence where this groundwater moved within or adjacent to the site, it is clear that it contributed to the overall contamination of the site.
As for MIG/AAA, their big downfall was the state in which they left the site upon their abandonment in June 1988. The court has already assessed a good measure of liability to MIG/AAA for the emergency removal and IRM costs based on this factor. However, the court also finds that failure to properly close the site contributed to contamination at the site that will need to be addressed independent of the emergency removal and IRM costs. Although such contamination is arguably minimal as compared to the site as a whole, its relevance cannot be ignored.
The last factor the court will consider is the level of cooperation and involvement in clean-up of the site. This factor clearly inures to the benefit of BFI and the significant detriment of MIG/AAA. BFI has been a lead performer in the site clean-up while MIG/AAA abandoned the site and refused to cooperate with, or contribute to, the clean-up effort. The sooner and more thoroughly a site can be cleaned up, the less severe its impact will be on the environment. MIG/ AAA's recalcitrance is entirely antithetical to the spirit and purpose of CERCLA and other regulatory statutes. The failure of MIG/ AAA to provide relevant site information also hindered the clean-up process. The court finds MIG/AAA's lack of cooperation and involvement in the clean-up to weigh heavily in favor of allocating them a greater share of costs.
Having considered these various factors carefully, the court must now arrive at a percentage of fault attributable to BFI and MIG/AAA as operators. As emphasized earlier in this order, such task escapes any degree of precision. It is, at best, a matter of "Kentucky windage," grounded on the relevant conduct of the parties. Keeping in mind its discussion of the foregoing factors, the court allocates forty percent of the remaining 44.63 percent of the overall costs to BFI and sixty percent of the remaining 44.63 percent to MIG/AAA.[27] When the orphan shares are distributed using Hengemihle's methodology, this equates to 18.21 percent of the overall costs to BFI and 27.14 percent of the overall costs to MIG/AAA.[28]
Turning to BFI and AAA as transporters, the court allocates sixty percent of the 7.77 percent share to AAA and forty percent to BFI.[29] The court bases this allocation on the volume attributable to BFI and AAA as transporters, including the additional Chrysler waste this court has found BFI liable for. Additionally, the court considers not only the added volume of the Chrysler waste but also its toxicity. In doing so, the court recognizes, as it did in allocating the operator share between BFI and MIG/AAA, that it is impossible to quantify with precision the precise impact of the Chrysler waste on either the volume at, or the condition of, the landfill. When the orphan shares are distributed using Hengemihle's methodology, *782 this equates to 4.74 percent of the overall costs to AAA and 4.21 percent of the overall costs to plaintiffs.
The total past IRM costs through December 31, 1997 with prejudgment interest are $2,754,549.62. Eighty-five percent of this total is $2,341,367.18 to be split evenly between MIG and AAA. The total past non-IRM costs through December 31, 1997 with prejudgment interest are $6,615,026.56. MIG is also responsible for 13.57 percent of this amount, or $897,659.10. AAA is also responsible for 18.31 percent (4.74 percent as a transporter and 13.57 percent as an operator) of this amount, or $1,211,211.36. Consequently, MIG's total share of past response costs incurred by plaintiffs through December 31, 1997 (with interest) is $2,068,342.70, while AAA's total share is $2,381,894.95. MIG is responsible for 42.50 percent of all IRM costs and 13.57 percent of all other site costs incurred after December 31, 1997 which are consistent with the NCP. AAA is responsible for 42.50 percent of all IRM costs and 18.31 percent of all other site costs incurred after December 31, 1997 which are consistent with the NCP.
Judgment is therefore entered for plaintiffs and against MIG Investments, Inc. for $2,068,342.70 in site costs incurred through December 31, 1997, and for 42.50 percent of all IRM costs and 13.57 percent of all other site costs incurred after December 31, 1997 which are consistent with the NCP. Judgment is further entered for plaintiffs and against AAA Disposal Systems, Inc. for $2,381,894.95 in site costs incurred through December 31, 1997, and for 42.50 percent of all IRM costs and 18.31 percent of all other site costs incurred after December 31, 1997 which are consistent with the NCP.
NOTES
[1] The court compliments the attorneys from both sides for the exemplary manner in which they tried this case and their extensive efforts in preparing the post-trial briefs.
[2] Leachate may be described as the end result of water leaching through a substance and collecting soluble compounds in the process.
[3] The original lease was to Rockford Disposal Service, Inc., the predecessor to BFI. The court will simply refer to the entities as BFI.
[4] Cover is a prescribed level of soil to be placed over the waste to prevent its movement by the wind and to retard the amount of rainwater reaching the waste.
[5] When the court refers to defendants, it means MIG, Inc., AAA Disposal, Inc. and Richard Ter Maat.
[6] The purpose of an RI/FS is to collect data, evaluate releases of hazardous substances and to conduct engineering evaluations sufficient to allow federal and state agencies to select remedies.
[7] Defendants have never been involved with, or contributed to, the clean-up of the landfill despite their notification of potential liability by the USEPA and IEPA.
[8] As of the time of trial, plaintiffs suggested the ROD would be issued in February or March 1998. As of the date of this order, plaintiffs have not advised the court of the ROD's issuance.
[9] All parties stipulate that MIG was an operator at the site.
[10] This case was decided after the parties submitted their post-trial briefs. Plaintiff filed a motion to supplement its authority, citing Bestfoods, which defendants opposed. The court being aware of the Bestfoods decision independent of plaintiffs' motion, denied the motion as moot. Also, because of the Bestfoods decision, several of the joint issues need not be directly addressed.
[11] The court recognizes that the two corporate defendants here, MIG and AAA, did not have a parent-subsidiary relationship. Nonetheless, because of their common ownership and directorship, they are sufficiently analogous to a parent-subsidiary (sister corporations seems an appropriate description) to make applicable the tenets of Bestfoods.
[12] Again, while the corporations in this case are not parent-subsidiary, they do share officers and directors. As such, the court finds the language of Bestfoods equally applicable here.
[13] In considering the evidence on this issue, the court disregards the evidence related to AAA's control of MIG. Such evidence is clearly not pertinent to an analysis of direct liability as an operator under CERCLA. See Bestfoods, at 1886 ("The question is not whether the parent operates the subsidiary, but rather whether it operates the site....").
[14] Of course, plaintiffs need only pierce the corporate veil of either MIG or AAA to achieve their goal of attributing liability to Richard Ter Maat.
[15] The evidence shows that for a short time in 1975 he hauled Chrysler waste to the Pagel Pit in Rockford, Illinois. That was between the time BFI relinquished control over the site and when it opened its new operation at Davis Junction.
[16] This conclusion is based on the assumption that BFI dumped all the Chrysler waste during the relevant period at the site. In its prior discussion, the court has already found such assumption to be supported by the evidence. The court, therefore, finds that about 3,430,000 pounds of solvents are attributable to BFI's hauling of Chrysler waste to the site.
[17] Ammann attributed the remaining nine percent to MIG based on the amount and nature of municipal and industrial trash hauled by MIG during its operating period as per records.
[18] See Maryland Casualty Co. v. Peppers, 64 Ill. 2d 187, 355 N.E.2d 24 (1976) (Insured entitled to independent counsel where potential conflict of interest exists under insurance policy.)
[19] Even if the court were to follow the Rohm decision, the oversight costs related to the RI/FS activities would still be recoverable.
[17] The court has already decided that Richard Ter Maat has no individual liability as an operator under either CERCLA or state veil-piercing law.
[18] While the parties could not bargain away their legal obligations, the fact that defendants had the sole responsibility for closure under the agreement further reflects their poor judgment in abandoning the site without effective closure.
[19] Plaintiffs contend all three parties, MIG, AAA and Richard Ter Maat should be treated as one. This court has held in a separate part of this order, however, that Richard Ter Maat cannot be held individually liable as operator either directly or derivatively.
[20] Such facts as the owners' recalcitrance and defendants' legitimate attempts to close, if any, will be considered in allocating costs.
[21] This circumstance epitomizes the overall problem with assessing liability in a CERCLA case such as this. The "science" of landfilling has changed, and continues to change, dramatically in twenty plus years. Back in the mid-1970's and into the 1980's the state and federal agencies were in their fledgling stages of development. Additionally, the laws governing landfill operation were just coming into bloom. Now, of course, the court must assess in hindsight the actions of the operators through a present day lense. Imposing today's standards on yesterday's conduct is an inartful task at best.
[22] Plaintiffs' and defendants' allocation experts, Hengemihle and Wise, agree that fifty percent of the liability based on volume should be allocated to the generator/transporter class. Taking this into consideration, the court, along with all the other evidence of fault, makes its independent allocation as to these two classes.
[23] The exception, of course, is BFI and AAA who were also operators of the site.
[24] This is exclusive of the orphan share attributable to the operator class.
[25] The court recognizes that about one percent was placed there during the brief period that Kennedy/Mollendorf operated the site pre-1971. This amount is of no import to the present allocation.
[26] The expert testimony does not clearly establish the impact of the nature and toxicity of Chrysler waste at the site.
[27] The non-orphan share attributable to the operators is 44.63 percent.
[28] Because the court can find no discernable difference in the conduct of MIG and AAA as operators, the court allocates 13.57 percent (½ of 27.14) to MIG and 13.57 percent to AAA.
[29] Of the ten percent attributable to the transporter class as a whole, 1.02 percent represents the transporters who settled with plaintiffs and 1.21 percent represents the orphan transporter share. Therefore, the allocation is based on the remaining 7.77 percent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2311493/ | 38 F.Supp.2d 372 (1999)
James C. PERMENTER, Plaintiff,
v.
CROWN CORK & SEAL CO., INC., Defendant.
No. Civ.A. 98-3937.
United States District Court, E.D. Pennsylvania.
February 26, 1999.
*373 *374 *375 Arnold Y. Steinberg, Pittsburgh, PA, for plaintiff.
Vernon L. Francis, Dechert, Price & Rhoads, Philadelphia, PA, for defendant.
MEMORANDUM & ORDER
KATZ, Senior District Judge.
Before the court is the defendant's motion for summary judgment and plaintiff's cross-motion for partial summary judgment. Because there is no genuine issue of material fact regarding plaintiff's claims of breach of contract, fraudulent inducement, or invasion of privacy, the complaint must be dismissed.
I. Factual Background
The basis of this suit is an employment relationship between plaintiff James Permenter and defendant Crown Cork & Seal (Crown). After being referred to Crown by a headhunter, see Ex. A at 18 (Dep. of James Permenter),[1] Mr. Permenter met with Carl Armand and Ed Richter, two individuals at Crown's Alsip, Illinois facility, to discuss two employment positions, one of which was in South Africa. See id. at 19-20.[2] After other interviews, see id. at 23-27, Mr. Permenter was hired by Crown as a project manager with the duty of supervising a plant start-up operation in South Africa. See Ex. B (assignment letter).[3] Although he remained a United States employee of Crown, he was considered "on loan" to Crown Cork Company S.A. Ltd., a joint venture between Crown and a South African company. See id.; see also Ex. D at 9 (Dep. of James Sadler).
Mr. Permenter began his work in South Africa in 1995 when he performed an audit of a Crown manufacturing plant. After returning to the United States in the late fall, see Ex. A at 40-41, 45, Mr. Permenter moved to South Africa with his family in January 1996. See id.; see also Ex. H ¶ 12 (response to interrogatory). Prior to this move to South Africa, Mr. Permenter sold his home in the United States, and his wife quit her job. See Ex. H ¶ 16-17, 15(d)-(e), (k); Compl. ¶ 28(g), (k). Many disagreements eventually sprung up between Mr. Permenter and the South African managers. In particular, Mr. Permenter and a manager named Roger Morgan clashed.[4] In mid-October 1996, Mr. Morgan called Mr. Permenter into his office and informed him that he was no longer needed in South Africa. See Ex. A at 80. Following discussion with his superior, Jim Sadler, Mr. Permenter agreed to leave South Africa, believing that he was to be reassigned in the United States. Upon Mr. Permenter's return to the United States, Mr. Sadler attempted to find another position for Mr. Permenter but was unable to do so. See Ex. D at 17, 20, 56, 66-67.
II. Discussion[5]
A. Defendant's Motion for Summary Judgment
Mr. Permenter's lawsuit alleges that 1) Crown breached the employment contract *376 it made with him, 2) Crown fraudulently induced him to take the position in South Africa and thereby damaged him, and 3) Crown, through its employee Roger Morgan, defamed him and painted him in a false light. The defendant requests summary judgment on each of these claims.
1. Choice of Law
Mr. Permenter is a citizen of Florida and was a citizen of Florida at the time of all events in the complaint. The corporate defendant is a citizen of Pennsylvania. The contract of employment was negotiated and finalized in Alsip, Illinois, and the employees of Crown whose actions are most relevant to this case worked at Crown's Illinois facility. Plaintiff, however, contends that he took the job with Crown's Philadelphia office. See Resp. to Mot. for Summ. J. at 25. Based on these facts, the defendant believes that the court should apply the law of Illinois; plaintiff believes that the court should apply the law of Pennsylvania.
In a diversity action, the court should look to the conflicts regime of the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); LeJeune v. Bliss-Salem, Inc., 85 F.3d 1069, 1071 (3d Cir. 1996). Under Pennsylvania's choice of law rules, the court must first look to see whether a true conflict exists. If there is no true conflict, and the law of either state may be applied without impairing the interests of the other, the court should generally apply the law of the forum state. See Austin v. Dionne, 909 F.Supp. 271, 274 (E.D.Pa.1995). Only if a true conflict is present should the court continue to consider the appropriate choice of law by combining elements of both the governmental interest approach and the significant contacts test. See Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964).
In the present case, the court will apply Pennsylvania law because there is no true conflict on any of the relevant issues. The law applied by Pennsylvania and Illinois regarding the at-will status of employment contracts is virtually identical, and neither state's interests would be impaired by applying that of the other. Pennsylvania and Illinois law regarding the elements of fraudulent inducement are also almost indistinguishable. Finally, the determination of the invasion of privacy claim is unaffected by the choice of law issues. Under all plaintiff's causes of actions, the states have displayed an attention to the same policy goals and have utilized similar legal structures to accomplish these aims. Consequently, the default choice of law is that of the forum state.[6]
*377 2. Breach of Contract
Pennsylvania law presumes that all employment is at-will unless the employee is able to prove otherwise by showing with "clarity and specificity that the parties contracted for a definite period." See Maier v. Police and Fire Fed. Credit Union, 813 F.Supp. 326, 332 (E.D.Pa. 1993), quoting DiBonaventura v. Consolidated Rail Corp., 372 Pa.Super. 420, 539 A.2d 865, 867 (1988); see also Raines v. Haverford College, 849 F.Supp. 1009, 1011 (E.D.Pa.1994) (same). An at-will employee can be discharged for any or no reason. See Raines, 849 F.Supp. at 1011. The presumption will not be overcome absent either an express contract between the parties or an implied in-fact contract plus additional consideration passing from the employee to the employer "from which the court can infer the parties intended to overcome the at-will presumption." Id. at 1012 (citations omitted). In the present case, Mr. Permenter cannot demonstrate that he was anything but an at-will employee because he cannot use his employer's estimates of the time he would be needed to overcome the presumption.
Two documents are crucial in this determination. First, the application for employment filled out by Mr. Permenter includes a place for the applicant to sign underneath an "Applicant Statement." That statement includes the following:
I understand that neither this application, nor any offer of employment from Crown Cork & Seal Company, Inc. constitute an employment contract, unless a specific document to that effect is executed in writing by both an officer of the Company and the employee.
I understand that my at will employment is for no specified period of time, and may be ended by either myself or the Company at any time with or without notice.
Ex. F. Mr. Permenter's signature is immediately below this disclaimer, see id.,[7] and Mr. Permenter does not dispute its authenticity. See Ex. A at 38.
The second document is Mr. Permenter's international assignment letter detailing his salary, various allowances, benefits, and duties. See Ex. C. The first sentence of this letter states that "[t]his is not a contract of employment." Id. On the fourth page, under the heading "Termination of International Assignment," the letter states:
In the event of your re-assignment, your voluntary resignation, or the company's termination of your service with or without cause, this International Assignment will be considered terminated and the compensation package as outlined above will cease to apply.
If you should resign voluntarily, the Company is not obligated to pay your transfer expenses back to the U.S. Otherwise the Company will pay the following expenses to transfer you back to Brandon, Florida.
Id. at 4 (emphasis added). The next section says that "nor does the fact that you are recorded as an employee of CSA in Alrode, South Africa affect your continued status as an at will Company employee." Id. Mr. Permenter's signature of acknowledgment is also on this document. See id. at 5. Mr. Permenter agrees that the signature is his, although he suggests that he did not thoroughly read the document, pointing out at least one factual error it contained. See Ex. A at 32-34.
These disclaimers are not hidden or obscured, and they were presented to and signed by Mr. Permenter very early in the employment process. While the plaintiff suggests that the assignment letter *378 as a whole led him to believe that he was being hired for at least two years, see, e.g., id. at 29, 30-31; Resp. to Mot. for Summ. J. at 6, this claim is untenable as a matter of law. An employee handbook or analogous document will not change the employee's status unless it contains a "clear indication that the employer intends to overcome the at-will presumption." Raines, 849 F.Supp. at 1012; see also Ruzicki v. Catholic Cemeteries Ass'n, 416 Pa.Super. 37, 610 A.2d 495, 497 (1992) (same). A handbook is only enforceable as a contract if a reasonable person in the same position as the employee would interpret its provisions as evidencing an intent by the employer to overcome the presumption. If a handbook or manual contains disclaimers or specifically states that there was no employment contract, the presumption will not be defeated. A plaintiff may not claim ignorance of such provisions in an attempt to downplay their significance. See Raines, 849 F.Supp. at 1012, Ruzicki, 610 A.2d at 496, 498; Maier, 813 F.Supp. at 332. Consequently, the plaintiff cannot maintain that a reasonable person would have viewed the letter as offering anything but at-will employment.[8]
Mr. Permenter raises other objections to this conclusion. First, the plaintiff argues that the oral representations of Crown employees led him to believe that he would be hired for at least two years. Second, plaintiff relies on various documents for the same purposes. Finally, plaintiff suggests that he falls within certain exceptions or qualifications to the at-will doctrine. The court will address each argument in turn.
Mr. Permenter strenuously argues that the oral representations of individuals at Crown led him to believe that he would be hired for two years with an extension of two more years. See, e.g., Ex. A at 22 (stating that Mr. Richter told him that the position "would be two years plus a two-year extension"); Ex. H ¶ 11 (stating that oral representations were basis for belief). When pressed as to the specificity of any representation, Mr. Permenter was unable to say that he had been guaranteed or promised a position with a particular duration. See, e.g., Ex. A at 23-27, 107 (describing conversations with various individuals at Crown Cork & Seal). Under Pennsylvania law, oral representations as to the predicted length of time of employment do not modify the at-will presumption. See, e.g ., Marsh v. Boyle, 366 Pa.Super. 1, 530 A.2d 491, 494 (1987) (stating that "the employer's assurances that Appellant would be working as publisher `for at least two years' was not sufficiently definite to take the agreement out of the at-will employment presumption")[9]; Engstrom v. John Nuveen & Co., Inc., 668 F.Supp. 953, 959 (E.D.Pa.1987) ("The contractual provision necessary to overcome the at-will presumption must be for a specific and definite term, not vague or conclusory"); Braun v. Kelsey-Hayes Co., 635 F.Supp. 75, 77 (E.D.Pa.1986) (holding that verbal representations that plaintiff would be employed so long as he performed his job satisfactorily did not modify at-will status); Rogers v. Merck & Co., Inc., Civ. A. No. 86-2199, 1987 WL 7201 (E.D.Pa. Feb. 26, 1987) (rejecting argument that verbal representations that employee would be employed until retirement constituted modification of at-will status).[10] While *379 there are circumstances in which oral representations of an employer could create contractual duties, the plaintiff has simply not come forward with any record evidence that would permit the court to take the matter to a jury.
Mr. Permenter also relies on certain documents in addition to the assignment letter discussed previously. First, in the complaint itself, he cites to two letters from Crown to the South African Consulate General regarding the work visa for Mr. Permenter and his family. While the first letter initially says that Mr. Permenter's assignment would be for two years, in the very next sentence, it states that that time period is an estimate. See Compl. Ex. 1. The second letter states that "Mr. Permenter's services will be required for approximately two years and then he will be replaced by a South African national and will return to the United States." Compl. Ex. 2. Neither of these documents shows that Mr. Permenter was guaranteed a two year position: Crown clearly represents the two-year period as an estimate or an approximation. Mr. Permenter also refers to copy of a contract with long-term employment that he admits he never signed, see Ex. A at 27, as well as to a copy of the company's long-term benefits package and policy statements. See id. at 27-28. As neither of these documents were included in the record, the court cannot and does not consider them.
Finally, the plaintiff attempts to avail himself of three "exceptions" to the at-will doctrine. First, he claims that he provided additional consideration to his employer. Second, he argues that Mr. Morgan's specific intent to harm him removes his employment from at-will status. Finally, he hints that the public policy exception to at-will employment applies to him.
The presumption of at-will employment may be overcome by a showing that the employee provided additional consideration to the employer and that termination of employment would result in great hardship or loss to the party known to both employer and employee when the contract was made. See Darlington v. General Elec., 350 Pa.Super. 183, 504 A.2d 306, 314 (1986), overruled on other grounds Clay v. Advanced Computer Applications, Inc., 522 Pa. 86, 559 A.2d 917 (1989). One type of consideration often discussed is the relocation of an employee, particularly when accompanied by relocation of a family. See Shaffer v. BNP/Cooper Neff, Inc., Civ.A. No. 98-71, 1998 WL 575135, *4 (E.D.Pa. Sept.4, 1998) (collecting cases). Other relevant factors include abandonment of other job opportunities and the sale of a home. See Marsh, 530 A.2d at 494. Ordinarily, the determination of whether such factors constitute sufficient consideration to overcome the at-will presumption is a jury question. However, the court may rule on the issue when the "evidence is so clear that no reasonable [person] would determine the issue before the court in any way but one[.]" Shaffer, 1998 WL 575135, at *7, quoting Darlington, 504 A.2d at 312; see also Martin v. Safeguard Scientifics, 17 F.Supp.2d 357, 369 (E.D.Pa.1998) (same).
The present case is a close one, but several factors persuade the court that the issue should not go to the jury. On the one hand, Mr. Permenter terminated his own consulting business, he sold his home and many of his possessions, his wife quit her job, and they relocated to South Africa on the belief that he would be working there for at least two years. Weighing against these factors, however, is plaintiff's *380 acknowledgment, discussed previously, that his employers never guaranteed him a position for two years but rather estimated that two years would be its duration. Moreover, Mr. Permenter signed two documents that prominently stated that he was an at-will employee and that his assignment letter did not constitute a contract of employment. Even if the court were to find additional consideration, the disclaimers require the court to interpret this as an at-will contract. See Sharp v. BW/IP Int'l, Inc., 991 F.Supp. 451, 458 (E.D.Pa.1998); Darlington, 504 A.2d at 314 ("[I]f the parties specifically agreed that the employment would be at-will, even though additional consideration were present, we would expect a court to construe the contract according to the parties' stated intention and hold it to be at-will"). The significance of the move and his wife's relocation is also undercut. Mr. Permenter was entitled to a housing allowance in South Africa, moving expenses both to and from South Africa, costs for the forced sale of a vehicle, as well as various other benefits. See Ex. C. These provisions make it clear that Mr. Permenter was not gratuitously providing the company with his services in South Africa. Also, Mr. Permenter apparently would have had no quarrel with Crown had it found him a new position in the United States, a situation that would have still required him to move to and from South Africa and relocate his family.
Plaintiff also suggests that he provided additional consideration by agreeing to his early reassignment from Project Rhino to the Alrode plant managing position. It is not clear that Mr. Permenter was promised one specific job, as the proof presented by plaintiff on this point consists solely of a cryptic document that does not clearly state that Mr. Permenter was only to work on Project Rhino. See Resp. to Mot. for Summ.J., Ex. 1. In contrast, the assignment letter includes a clause that covers the possibility of reassignment. See Ex. C at 3. Even assuming, however, that the court was to consider the change in assignment as consideration, the reassignment is insufficient as a matter of law to overcome the at-will presumption. Mr. Permenter does not detail or provide proof of any hardship he might have suffered unique to the reassignment; i .e., he does not connect it to such events as relocating his family. As he has stated numerous times, when he accepted the job, he believed that it was for two years, and he cannot now maintain that he did not plan to be in South Africa for the full time period.
Mr. Permenter next argues that his discharge by Mr. Morgan was motivated by a specific intent to harm him and that this creates an exception to the at-will doctrine. The difficulty with this position is that both Pennsylvania state courts and federal courts ruling on Pennsylvania law have held that this exception no longer exists, if indeed it ever did; rather, the only exception to the at-will doctrine is the public policy exception to be discussed subsequently. See Krajsa v. Keypunch, Inc., 424 Pa.Super. 230, 622 A.2d 355, 360 (1993) (rejecting existence of specific intent exception); Mulgrew v. Sears Roebuck & Co., 868 F.Supp. 98, 100-03 (E.D.Pa.1994) (discussing Pennsylvania case law extensively and rejecting existence of exception). Although the cases relied upon by plaintiff, such as Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974), and Tourville v. Inter-Ocean Ins. Co., 353 Pa.Super. 53, 508 A.2d 1263 (1986), do suggest that such a claim is viable, later decisions by the Pennsylvania lower courts have discredited those opinions. See Mulgrew, 868 F.Supp. at 101. This court agrees with the holding in Mulgrew and believes that Pennsylvania courts would not recognize this cause of action.
This brings the court to plaintiff's last argument on this subject. Retaliatory discharge violating a clear public policy is an exception to the at-will doctrine, see Braun, 635 F.Supp. at 79, and plaintiff attempts to utilize this exception by arguing that Mr. Morgan fired him for revealing problems with the plant in *381 South Africa. This exception is very narrowly construed, and Pennsylvania courts have generally held that for it to apply, the plaintiff must demonstrate that a statute or constitutional provisions applied to his case and that the discharge resulted from his duty to act in accordance with applicable law. See Krajsa, 622 A.2d at 359. Even if an important public policy is at issue, a discharge is permissible if the employer has "separate, plausible, and legitimate reasons for doing so." Betts v. Stroehmann Bros., 355 Pa.Super. 195, 512 A.2d 1280, 1281 (1986); see also Marsh, 530 A.2d at 495 (noting high burden of an employee to challenge a termination under this theory). Mr. Permenter does not present any theory whatsoever as to what public policy is harmed by permitting his termination. His position could be construed as a version of a whistle-blower exception, but it is largely unexplained, and the law on the subject does not support such an argument. See, e.g., Holewinski v. Children's Hosp. of Pittsburgh, 437 Pa.Super. 174, 649 A.2d 712, 715 (rejecting application of public policy exception to similar whistle-blower). Plaintiff also ignores the fact that Mr. Morgan did not fire him: Mr. Morgan simply told plaintiff to return to the United States, and Mr. Sadler ultimately terminated him because there were no jobs available in the United States. See Ex. D at 17, 56, 66-67. Even if Mr. Permenter could point to a public policy issue, the exception is not implicated by reassignment from South Africa to the United States.
In sum, there is no evidence that would tend to create a genuine issue of material fact that the presumption against at-will employment was overcome. There was thus no breach of contract.[11]
3. Fraudulent Inducement
Mr. Permenter's second claim is for fraudulent inducement, and his allegations as to this count largely mirror those of the breach of contract claim: Mr. Permenter claims that Crown fraudulently induced him to sell his home, reject various business opportunities, and relocate to South Africa.
To state a cause of action for fraud, Pennsylvania law requires the showing *382 of 1) a misrepresentation; 2) a fraudulent utterance thereof; 3) an intention by the maker that the recipient will thereby be induced to act; 4) justifiable reliance by the recipient upon the misrepresentation; and 5) damage to the recipient as the proximate result. See Delahanty v. First Penn. Bank, 318 Pa.Super. 90, 464 A.2d 1243, 1252 (1983); New York State Elec. & Gas v. Westinghouse, 387 Pa.Super. 537, 564 A.2d 919, 927 (1989). The burden on the plaintiff when pleading fraud is high: the proof must be "clear, precise, and convincing." Delahanty, 464 A.2d at 1252-53 (citations omitted); Engstrom, 668 F.Supp. at 964. Accordingly, a plaintiff must point to a specific statement that caused a particular harm. See, e.g., Sun Co. v. Badger Design & Constructors, 939 F.Supp. 365, 369 (E.D.Pa.1996). "Plaintiff may not simply point to a bad result and allege fraud. Rather, plaintiff must ... inject precision and some measure of substantiation into [the] allegations [of fraud]." Id. at 369 (citations omitted). The mere nonperformance of an agreement is not in itself evidence of fraud. See id. at 370; Mellon Bank v. First Union, 750 F.Supp. 711, 715 (W.D.Pa.1990) (noting that Pennsylvania courts hold that a broken promise to do something in the future is not fraud so as to permit admission of parol testimony to vary terms of written agreement); Stout v. Peugeot Motors of Amer., 662 F.Supp. 1016, 1018 (E.D.Pa.1986) (stressing that cause of action for breach of contract may not be automatically transformed into tort claim).
Mr. Permenter has not pointed out, either in pleadings or in his response to the motion for summary judgment, any particular misrepresentation, made knowingly or recklessly, on which he relied. Error or lack of knowledge on the part of Crown is not, in the circumstances, sufficient for a showing of such misrepresentation. See New York State Elec. & Gas, 564 A.2d at 927-28 (affirming grant of summary judgment when plaintiff demonstrated only lack of knowledge by defendant rather than fraudulent intent and knowledge). As described more thoroughly in the earlier discussion, Mr. Permenter can only show that the Crown representatives who offered him the job believed that his employment was to last two years; he cannot show that they knew otherwise but deceived him.[12]
4. False Light and Defamation
Pennsylvania's borrowing statute states that the applicable statute of limitations for claims accruing outside of Pennsylvania shall be "either that provided or prescribed by the law of the place where the claim accrued or by the law of this Commonwealth, whichever first bars the claim." 42 Pa.Con.Stat. § 5521. Both Pennsylvania and Illinois have a one-year statute of limitations for invasion of privacy claims. See 42 Pa.Con.Stat. § 5523(1); *383 735 Ill.Comp.Stat. 5/13-201. Mr. Permenter's claims are accordingly barred. According to the complaint and Mr. Permenter's testimony, the statements in question all occurred in October and November of 1996. See Compl. ¶ 43-44; Ex. A at 85-86 (describing allegedly defamatory bulletin and comments by Roger Morgan immediately following Mr. Permenter's return to the United States); id. at 93-94 (describing Mr. Morgan's allegations that Mr. Permenter had been involved in a traffic accident while under the influence of alcohol made immediately upon Mr. Permenter's return to the United States); Ex. H ¶ 18 (recounting same incidents in response to interrogatories). Mr. Permenter is not able to point to any other comments that would be defamatory or cast a false light on him. As this complaint was filed on July 29, 1998, these claims are clearly time-barred.
In response, Mr. Permenter makes the perplexing argument that his false light claim is not an invasion of privacy claim and hence should fall under a different, two year, statute of limitations. See Resp. to Mot. for Summ.J. at 39. Pennsylvania and Illinois law clearly hold that a claim for false light is a claim for invasion of privacy, see, e.g., Seale v. Gramercy Pictures, 949 F.Supp. 331, 338 (E.D.Pa.1996); Bryson v. News Amer. Pub., 174 Ill.2d 77, 220 Ill.Dec. 195, 672 N.E.2d 1207, 1222 (1996), and it is disingenuous to suggest otherwise.
III. Plaintiff's Motion for Partial Summary Judgment
Plaintiff requests summary judgment on a portion of his breach of contract claim that alleges that his taxes were wrongly withheld. The complaint alleges that the defendant breached the contract "[b]y failing to make appropriate tax payments on account of withholding taxes taken from the Plaintiff's gross salary." Compl. ¶ 31(c). In support of this claim, plaintiff recounts deposition testimony in which Mr. Permenter alleges that there is a discrepancy between what Crown withheld and what was paid to the IRS. See Resp. to Mot. for Summ.J. at 24-25. Again, these pages from the deposition are not in the record.
In its own motion for summary judgment, defendant provides several exhibits indicating that Crown offered to pay Price Waterhouse to complete Mr. Permenter's federal tax return in 1996 and that Crown explained to Mr. Permenter that, should he reject this offer, he would be required to forfeit tax equalization. See Exs. J, K, L. The matter was complicated because a personal gift made by Mr. Permenter to his son would have required Mr. Permenter to pay out-of-pocket for that portion of the return. See id.
Mr. Permenter has provided no evidence other than his own assertions that there was a tax irregularity consisting of a breach of contract, and the documents presented by defendant tend to show that any problems stemmed from plaintiff's own decision. Accordingly, summary judgment will be denied to Mr. Permenter and granted in favor of Crown.
IV. Conclusion
The plaintiff cannot demonstrate the existence of a genuine issue of material fact as to any of the claims made in the complaint. At best, Mr. Permenter has demonstrated that both he and the defendant erroneously believed that the position in South Africa would last for a full two years. He has not, however, shown that Crown intended to change his at-will employment status or that a reasonable person could have so believed. The fraudulent inducement claim must fail because the plaintiff cannot make even a weak showing of intent to defraud or mislead, and the invasion of privacy claims are clearly outside of the statute of limitations. Accordingly, this complaint will be dismissed in its entirety.
An appropriate Order follows.
*384 ORDER
AND NOW, this 26th day of February, 1999, upon consideration of Defendant's Motion for Summary Judgment, Plaintiff's Motion for Partial Summary Judgment, and the responses thereto, it is hereby ORDERED that:
1. Defendant's Motion is GRANTED, and
2. Plaintiff's Motion is DENIED.
NOTES
[1] All exhibits are those attached to defendant's motion for summary judgement unless otherwise specified.
[2] Plaintiff's complaint identifies Mr. Armand as the Manager of Recruiting and Training and Mr. Richter as the Manager of Engineering Services. See Compl. ¶¶ 8, 9.
[3] It appears that Mr. Permenter was originally hired to work on "Project Rhino" in Roodekop, South Africa, where he would oversee the construction of a canning plant. Later, he was assigned to be plant manager at Alrode, the position he held when he was ultimately told to return to the United States.
[4] There is factual dispute as to the reasons for the conflicts. The court accepts as true plaintiff's claim that Mr. Morgan wanted Mr. Permenter to leave South Africa because Mr. Permenter had complained vigorously about plant management and operations.
[5] Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When ruling on a summary judgment motion, the court must construe the evidence and any reasonable inferences drawn therefrom in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In other words, if the evidence presented by the parties conflicts, the court must accept as true the allegations of the non-moving party. See id. However, Rule 56 "mandates the entry of summary judgment ... 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." See Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548.
The cross-motions in the present case will be evaluated by the same standards. See Manufacturers Life Ins. Co. v. Dougherty, 986 F.Supp. 928, 930 (E.D.Pa.1997); S Indus., Inc. v. JL Audio, Inc., 29 F.Supp.2d 878, 887 (N.D.Ill.1998).
[6] There is Third Circuit authority that suggests that the court, in such a situation, should avoid the conflict of law question entirely and analyze each issue under the law of each jurisdiction. See Williams v. Stone, 109 F.3d 890, 893 (3d Cir.1997); Lucker Mfg. v. Home Ins. Co., 23 F.3d 808, 813 (3d Cir. 1994). Consequently, the court will include discussion of Illinois law.
[7] As the copy of this document provided to the court is extremely blurry, the court takes the above quotation from an included blank application form. See Ex. G. The plaintiff's included deposition testimony makes no clear claim that he was unable to read the copy that he signed. At best, plaintiff suggests that he does not remember reading the document. See Def.'s Reply Brief, Ex. 1 at 37-40, 137.
[8] Plaintiff suggests in the response to the motion for summary judgment that he was terminated in violation of employee policies on which he relied. See Resp. to Mot. for Summ. J. at 17. However, the record does not include such a document, and the court can make no ruling on it.
[9] The court in Marsh did rule that summary judgment was inappropriate as to other matters: specifically, the significance of plaintiff's resignation from his previous position, his move to a new city, and his act of placing his home on the market were held to be jury questions. See id. at 494. The court will discuss these factors with respect to Mr. Permenter below.
[10] In his response to the motion for summary judgment, plaintiff invokes the doctrine of equitable estoppel to support his claim regarding an oral promise. This doctrine applies only to enforce a promise when there has been no consideration; when, as here, there is no proof of a promise, it clearly cannot apply. See, e.g., Holewinski v. Children's Hosp. of Pittsburgh, 437 Pa.Super. 174, 649 A.2d 712, 714 (1994). Perhaps more importantly, Pennsylvania law does not recognize promissory estoppel as an exception to the at-will doctrine. See, e.g., Geiger v. AT & T Corp., 962 F.Supp. 637, 648 (E.D.Pa.1997); Stumpp v. Stroudsburg Mun. Auth., 540 Pa. 391, 658 A.2d 333, 335-36 (1995); Paul v. Lankenau Hosp., 524 Pa. 90, 569 A.2d 346, 348 (1990).
[11] The result would be no different under Illinois law. In Illinois, an employment contract is presumed to be at-will and terminable by either party with or without cause. See McInerney v. Charter Golf, Inc., 176 Ill.2d 482, 223 Ill.Dec. 911, 680 N.E.2d 1347, 1349 (1997); Evans v. Gurnee Inns, Inc., 268 Ill. App.3d 1098, 206 Ill.Dec. 551, 645 N.E.2d 556, 559 (1995). "The at-will rule is a rule of construction only, however, creating a mere rebuttable presumption that a hiring without a fixed term is at will." Evans, 206 Ill.Dec. 551, 645 N.E.2d at 559; see also Duldulao v. Saint Mary of Nazareth Hospital Ctr., 115 Ill.2d 482, 106 Ill.Dec. 8, 505 N.E.2d 314, 317 (1987). The presumption can be overcome by demonstrating that the parties contracted otherwise. See Evans, 206 Ill.Dec. 551, 645 N.E.2d at 559; Habighurst v. Edlong Corp., 209 Ill.App.3d 426, 154 Ill.Dec. 226, 568 N.E.2d 226, 228 (1991). However, "[d]isclaimers of any contractual intention are inconsistent with the traditional requirements of contract formation[.]" Hawthorne v. St. Joseph's Carondelet Child Ctr., 982 F.Supp. 586, 595 (N.D.Ill.1997); see also Davis v. Times Mirror Mags., Inc., 297 Ill.App.3d 488, 231 Ill.Dec. 826, 697 N.E.2d 380, 388 (1998) (noting same).
As in Pennsylvania, an employee handbook or other analogous policy statement may create enforceable, contractual rights, but such a contract is created only if all of the traditional elements of contract formation are present. See Doe v. First Nat'l Bank of Chicago, 865 F.2d 864, 872 (7th Cir.1989); Duldulao, 106 Ill.Dec. 8, 505 N.E.2d at 314. Explicit disclaimers are effective when made in the context of a handbook or policy. See Davis, 231 Ill.Dec. 826, 697 N.E.2d at 388; Svigos v. Petry Television, Inc., No. 95-c-5899, 1996 WL 388416, *3-4 n. 5 (N.D.Ill. July 9, 1996) (rejecting claim of contract based on employee handbook because the disclaimer's "plain text prevents an employee from reasonably believing that the handbook language could `constitute a contract between the Company and any on or all of its employees'").
Illinois also applies strict standards to the use of the public policy exception. See, e.g., Davis, 231 Ill.Dec. 826, 697 N.E.2d at 386; Hinthorn v. Roland's of Bloomington, Inc., 119 Ill.2d 526, 116 Ill.Dec. 694, 519 N.E.2d 909, 911-13 (1988).
[12] The result would be no different under Illinois law. The elements of fraud in Illinois are 1) a false statement of material fact; 2) known or believed to be false by the party making it; 3) intent to induce the other party to act; 4) action by the other party in justifiable reliance on the truth of the statement, and 5) damage resulting from reliance. See Roadside Auto Body, Inc. v. Miller, 285 Ill. App.3d 105, 220 Ill.Dec. 724, 673 N.E.2d 1145, 1150 (1996); Industrial Specialty Chem., Inc. v. Cummins Engine Co., 902 F.Supp. 805, 813 (N.D.Ill.1995). As in Pennsylvania, a "claim of fraud for an alleged misrepresentation of future conduct cannot be grounded solely on the broken promise itself[.]" Industrial Specialty Chem., Inc., 902 F.Supp. at 813; see also Bower v. Jones, 978 F.2d 1004, 1012 (7th Cir.1992) (a broken promise does not constitute fraud without a showing of that promisor never intended to keep his or her word); Price v. Highland Comm. Bank, 722 F.Supp. 454, 459-60 (N.D.Ill.1989) (noting that, while a change of mind can constitute breach of contract, it is not automatically fraud without a showing of the elements of that tort); Resource Dealer Group, Inc. v. Executive Servs., Ltd., No. 97-c-4343, 1997 WL 790737, *2 (N.D.Ill.1997) ("It is important to keep in mind that both fraud and contracts involve promises, but one thing distinguishes the two is intent to deceive"). It is the plaintiff's burden to point to "specific, objective manifestations of fraudulent intent." Id. at *3. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2311511/ | 38 F.Supp.2d 1102 (1998)
Michael F. DeROCHE, Plaintiff,
v.
ALL AMERICAN BOTTLING CORPORATION, a Delaware Corporation, Defendant.
Civ. No. 98-675 (JRT/RLE).
United States District Court, D. Minnesota.
November 5, 1998.
*1103 *1104 Mark Leslie Knutson, Lisa Danelle Wilson, Bye Angnew Dryer & Storaasli, Duluth, MN, for plaintiff.
Kathleen Mary Mahoney, David M. Wilk, Oppenheimer Wolff & Donnelly, St. Paul, MN, William Crawford Blanton, Jr., Ranelle Leier, Oppenheimer Wolff & Donnelly, Minneapolis, MN, for defendant.
MEMORANDUM ORDER
ERICKSON, United States Magistrate Judge.
I. Introduction
This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A), upon the Motion of the Plaintiff, Michael F. DeRoche ("DeRoche"), to Amend his Complaint so as to assert a claim for punitive damages, and in order to add a claim under the Minnesota Labor Relations Act, Minnesota Statutes Sections 179.12 ("MLRA").
A Hearing on the Motions was conducted on July 28, 1998, at which time DeRoche appeared by Mark L. Knutson, Esq., and the Defendant, All American Bottling Corporation ("All American"), appeared by William C. Blanton, Esq.
For reasons which follow, De Roche's Motion to Amend is denied.
II. Factual and Procedural Background
This is an action arising out of events which followed the sale of Twin Ports 7-Up ("Twin Ports"), a soft drink distributorship located in Duluth, Minnesota, by Pepsico Corporation to All American, in February of 1994. According to DeRoche, as a part of that transfer of ownership, All American considered those employees, who had previously worked at Twin Ports, for continued employment with All American. The hiring process included an interview with each of the existing employees of Twin Ports in order to determine if they would be employed by All American.
DeRoche, who was fifty-six years of age at the time of the sale, had worked for Twin Ports for 24 years. During his employment, DeRoche worked as a sales route driver. As a result of his having submitted a written application for employment, on or about February 18, 1994, DeRoche was interviewed for employment by an agent of All American. It is not clear, given the Record presented to us, who was present at DeRoche's employment interview, but we are informed that the interview lasted approximately fifteen minutes. During the interview, DeRoche was asked about All American's planned use of a "pre-selling" system to distribute its product.
Under the system employed by All American's predecessor, sales were accomplished by the route drivers loading onto their trucks the amount of product that they expected would satisfy the needs of the customers on their route. Upon arriving at the customer's retail outlet, the driver would negotiate, with the customer, the actual amount of product that would be sold. According to DeRoche, All American was proposing to use a system in which its product would be pre-sold to its customers. Under this approach, the customer would be contacted, by telephone, prior to the delivery date, and an order would then be taken for a specific quantity of All American's product, and the route drivers would then load the ordered product onto their trucks for delivery. Once at the customer's place of business, the driver would restock, and would arrange, the product for resale.
DeRoche contends that he was receptive to the pre-selling plan, and that he expressed that view during his interview. As related by DeRoche, he had worked under a variety of sales systems during his tenure at Twin Ports, and he was not averse to the approach being proposed by All American. DeRoche also asserts that, at all times during his employment with Twin Ports, he had an excellent relationship with the customers he serviced, and *1105 that he had been relied upon to train new employees.
When All American announced who would be a part of its newly established workforce, DeRoche was not included. According to DeRoche, All American did hire some previous Twin Ports employees, but none of those hired were older than forty years of age, and none of the sales route drivers, who were then hired, were older than the age of thirty. Thereafter, DeRoche filed a claim of age discrimination with the Minnesota Department of Human Rights.
Following the announcement of All American's new hires, DeRoche asked All American to explain the reasons for its rejection of his employment application. In response, DeRoche was told that he was refused employment because All American had concluded that he was resistant to change, and could not adapt to All American's new "system." DeRoche takes strong exception to that explanation, as he recalls that, during his employment interview, he expressed a positive, and supportive, attitude toward the proposed pre-sale distribution plan which, by DeRoche's reckoning, was the only substantive marketing change that was being proposed by All American. Assuming, as he does, that the interview was the only basis upon which All American relied for its decision not to hire him, DeRoche contends that the reasons given for his rejection were merely a pretext for All American's true, discriminatory intent to deny him employment because of his age, and his union affiliation.
In support of his claim of discrimination, DeRoche offers an account of a conversation that he had with Steve Steele ("Steele"), who had been employed at Twin Ports for approximately eighteen months prior to its acquisition by All American. He was then hired by All American as a sales route driver. DeRoche notes that Steele was "about 30" at the time he was hired by All American, and he recounts that, during their conversation, Steele told him that a manager employed by All American advised that the true reason for DeRoche's employment rejection was different than what All American had explained. Steele allegedly stated that the unidentified manager explained that DeRoche was not hired because of his age, and his status as a union member.
DeRoche commenced this action, in Minnesota District Court, in January of 1998. In his Complaint, DeRoche alleges that the Defendant illegally denied him employment because of his age, in violation of Minnesota Statutes Sections 363.01 et seq., and 181.81, and he claims damages in excess of fifty thousand dollars. Relying upon the parties' diversity of citizenship as a jurisdictional predicate,[1] on February 11, 1998, All American timely removed the action to this Court. See, 28 U.S.C. § 1441. In his current Motion, DeRoche requests leave to amend his Complaint so as to include a claim for punitive damages, under Minnesota Statutes Section 181.81, and to incorporate a claim under the MLRA. Notably, no Federal questions are presented in the claims that DeRoche has pleaded, or that he has requested leave to plead. Against this backdrop, we consider the DeRoche's Motion to Amend his Complaint.
III. Discussion
A. Standard of Review. Where, as here, a plaintiff seeks to amend his *1106 Complaint, Rule 15(a), Federal Rules of Civil Procedure, dictates that leave to amend shall be "freely given when justice so requires." The Supreme Court has explained the purposes of Rule 15(a) as follows:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of such an apparent or declared reason such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. the leave sought should, as the rules require, be "freely given."
Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); see also, ARE Sikeston v. Weslock National, Inc., 120 F.3d 820, 832 (8th Cir.1997); Thompson-El v. Jones, 876 F.2d 66, 67 (8th Cir. 1989).
Although we begin with a presumption of liberality, an amendment to a pleading can be successfully challenged on grounds of futility if the claims created by the amendment would not withstand a Motion to Dismiss for failure to state a claim upon which relief can be granted. See, Humphreys v. Roche Biomedical Laboratories, Inc., 990 F.2d 1078, 1082 (8th Cir.1993); Weimer v. Amen, 870 F.2d 1400, 1407 (8th Cir.1989); Holloway v. Dobbs, 715 F.2d 390, 392-93 (8th Cir.1983); Norbeck v. Davenport Community Sch. Dist., 545 F.2d 63 (8th Cir.1976), cert. denied, 431 U.S. 917, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977); but cf., Karl's Inc. v. Sunrise Computers, Inc., 901 F.2d 657, 660 (8th Cir. 1990) ("colorable showing" sufficient to withstand application of clearly frivolous rule).
B. Legal Analysis. As noted, DeRoche seeks leave to amend his Complaint in order to assert a claim for punitive damages, and to invoke any remedies under the MLRA. Since the proposed amendments involve different considerations, we address them separately.
1. DeRoche's Motion to Amend his Complaint to Include Punitive Damages Under Minnesota Statutes Section 181.81.
As a threshold issue, we are obligated to determine whether Minnesota Statutes Section 181.81 permits a recovery for the punitive damages. If the Statute does not, then we need not consider whether DeRoche has satisfied his burden, under the laws of Minnesota, to present prima facie evidence that the Defendant acted with a deliberate disregard to his entitlement, if any there be, to employment with All American. See, Minnesota Statutes Sections 549.191 and 549.20.
All American argues that Minnesota Statutes Section 181.81 does not envision an award of punitive damages, because the provisions of that Statute specifically enumerate the remedies that the Minnesota Legislature intended.[2] As a result, All American argues that any claim, by DeRoche, for punitive damages under Section 181.81, would not withstand a Motion to Dismiss because "[o]n its face, the statute does not allow [the] Plaintiff to recover punitive damages." See, Defendant's Memorandum in Opposition to Plaintiff's Motion to Amend at 2. Given the plain language of Section 181.81, and the pertinent case law, we agree.
Section 181.81 allows a person, who has been refused employment, or who is terminated, or demoted, on account of his or her age, to commence an action to *1107 remedy the purportedly discriminatory conduct. See, Minnesota Statutes Section 181.81, Subdivisions 1(a), 2(b); Lecy v. Sage Co., 460 N.W.2d 102, 105 (Minn.App. 1990). The remedies, that are available under Section 181.81, are clear and unequivocal, since the Act provides only the two following forms of relief:
If a violation is found the court in granting relief may enjoin further violations and may include in its award reinstatement or compensation for any period of unemployment resulting from the violation together with actual and reasonable attorneys fees, and other cost incurred by the plaintiff.
Minnesota Statute Section 181.81, Subdivision 2(b).
In contrast, however, DeRoche argues that the Statute, despite its express enumeration of specific remedies, should be read to permit an award of punitive damages, so long as a plaintiff satisfies the preconditions of Minnesota Statutes Sections 549.191,[3] and 549.20, which detail the basis upon which a Court may allow a claim for punitive damages to proceed. In addition, DeRoche argues that a specific recitation, of an entitlement to seek punitive damages, is not a prerequisite to the Court's grant of such leave. According to DeRoche, the Minnesota Legislature envisioned the inclusion of punitive damage claims even though the Legislature failed to express that intent in the terms of Section 181.81 itself. He premises this argument on the language of Section 549.20 which flatly states that "[p]unitive damages shall be allowed in a civil action." Minnesota Statute Section 549.20, Subdivision 1 (emphasis added). In response, All America underscores that Section 549.20 does not authorize an award of punitive damages for any given claim, but requires, instead, that the cause of action itself, whether statutory or at common law, empower the Court to impose punitive relief, and Section 181.81 contains no such empowerment.
DeRoche cites the Minnesota Supreme Court's decision in Wirig v. Kinney Shoe, 461 N.W.2d 374 (Minn.1990), which allowed for damages under both Sections 181.81 and 363, as supportive of his entitlement to seek punitive relief. We are not so persuaded. Although Wirig does allow parallel claims for damages to proceed under both statutes, the damages awarded, in Wirig, as to the Section 181.91 claim, were solely compensatory in nature. Punitive damages were only allowed on the plaintiff's claims under Section 363. Indeed, none of the cases offered by DeRoche, in support of paralleling punitive damages under Sections 181.81 and 363, sustain that contention.[4] Quite simply, it is not sufficient *1108 to argue, as DeRoche does here, that claims under Sections 181.81 and 363 are "independent," and not "dependent" on each other. See, Lecy v. Sage Co., supra at 105. What is at issue here is whether the independent Section 181.81 action may successfully shoulder a punitive damage claim. As the Court reasoned, in Lecy:
We also note that the two statutes are administered by different agencies and provide substantially different relief. The remedies provided by section 181.81, back pay or reinstatement, are considerably less than those provided by chapter 363, which include punitive damages, treble damages, civil damages, and compensation for emotional distress. There is, therefore, a significant disadvantage to failing to meet the procedural requirements in chapter 363. By bringing a claim under section 181.81, a person does not circumvent the procedural requirements in chapter 363.
Lecy v. Sage Co., supra at 105 (citations omitted); see, Minnesota Statutes Sections 181.81, Subdivision 2(b), and 363, et seq... We find this analysis persuasive. The interrelationship of Chapters 363 and 181.81 make sense only in the context of the Minnesota Legislature's attempt to create two separate and distinct avenues of relief for one aggrieved of age discrimination. One avenue, Section 363, has significant procedural requirements, and provides additional forms of relief, including punitive damages. The other, Section 181.81, has fewer procedural limits on a recovery and, correspondingly, provides a more limited spectrum of relief.
Given this perspective of legislative purpose, we find implausible DeRoche's contention, that Minnesota Statutes Section 181.81, in conjunction with Section 549.20, allows for a punitive recovery. As recognized in Lecy, if the full measure of damages, which are permitted under Section 363, were also available under Section 181.81, then a complaining party would be easily able to sidestep the Legislature's insistence that punitive damages, along with the other remedial relief, which is available under Section 363, only be accessible if the procedural requirements of Section 363 are first satisfied. Here, DeRoche proposes to seek punitive damages under Section 363, and we see no legitimacy to his claim that he is entitled to the same punitive relief under Section 181.81.
Our conclusion is bolstered by the well recognized rule of construction which requires two statutes, which relate to the same subject matter, to be read so as to harmonize their respective provisions. See, People for Environmental Enlightenment and Responsibility, Inc. v. Minnesota Environmental Quality Council, 266 N.W.2d 858, 866 (Minn.1978), citing Lenz v. Coon Creek Watershed District, 278 Minn. 1, 153 N.W.2d 209, 217 (1967); State ex rel. Carlton v. Weed, 208 Minn. 342, 294 N.W. 370, 371 (1940). Of course, "[w]e also presume that, in enacting a statute, the Legislature acted with full *1109 knowledge of prior legislation on the same subject." Erickson v. Sunset Memorial Park Assn., 259 Minn. 532, 108 N.W.2d 434, 441 (1961); Minneapolis Eastern Railway Co. v. City of Minneapolis, 247 Minn. 413, 77 N.W.2d 425, 428 (1956). Here, unmistakably, the Minnesota Legislature intended that Sections 181.81 and 363 operate in harmony with each other, and to allow Section 181.81 to subsume the remedies of Section 363, without compliance with procedural requirements of Section 363, would render Section 363 a nullity. As but one example, punitive damages under Section 363 are limited to $8,500 but, accepting DeRoche's argument, that punitive damages are available under Section 181.81, we would, nonetheless, find no similar limitation on a punitive recovery thereby inducing, by judicial fiat, claimants to seek a recovery under Section 181.81, inclusive of exemplary damages, by a cause of action which would be unencumbered by the procedural requisites of Section 363. See, Minnesota Statutes Section 363.071, Subdivision 2. If there is merit to such a drastic reformulation of Section 181.81, we are confident that the virtues of such legislative reform will not escape the Minnesota Legislature.
In sum, we conclude that punitive damages may not be sought under Section 181.81, and DeRoche's attempt to plead such a claim is futile. As a result, his Motion to Amend is denied in this respect.[5]
2. DeRoche's Motion to Amend his Complaint to Incorporate a Claim under the MLRA.
While DeRoche seeks to amend his Complaint in order to include a claimed violation of the MLRA, see, Minnesota Statutes Section 179.12, he does not request the relief that is expressly afforded by that Statute namely, an Injunction or a Restraining Order. Instead, he seeks compensatory damages under Minnesota Statutes Section 8.31, Subdivision 3a, which permits private civil actions to recover damages arising from violations of those laws which are identified in Subdivision 1 of that Section.[6] See, Minnesota Statutes Sections 179.14, and 8.31, Subdivisions 1, 3a. Since the listing in Subdivision 1 does not purport to be exclusive, DeRoche argues that an MLRA claim *1110 should also allow the pursuit of compensatory damages, rather than being limited to equitable relief.
In response, All American points to the limitation of private actions under Section 8.31, Subdivision 3a, and particularly emphasizes that the MLRA is not among those claims referenced in Subdivision 1. The issue presented namely, whether an MLRA claim should be allowed to bear a demand for compensatory damages is an intriguing one, but is not a question we are now required to reach. All American urges, we think correctly, that any purported claim for compensatory damages, under the MLRA, would be preempted by the National Labor Relation Act ("MLRA"). See, Title 29 U.S.C. § 158(a)(3).[7] Beginning in 1935, the Federal government enacted a series of laws which regulated labor-management disputes, and which assured workers, and their employers, of certain rights. Since that time, the Supreme Court has formulated the following test for determining whether these Federal laws preempt a State law that is potentially applicable to labor disputes:
When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by S[ection] 7 of the National Labor Relations Act, or constitute an unfair labor practice under S[ection] 8, due regard for the federal enactment requires that state jurisdiction must yield.
San Diego Building Trades Council v. Garmon, 359 U.S. 236, 244, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959).
The NLRA, however, contains no express preemption provision. See, Building and Construction Trades Council of the Metropolitan District v. Associated Builders and Contractors of Massachusetts/Rhode Island, Inc., 507 U.S. 218, 224, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993); United Steelworkers of America, AFL CIO CLC v. St. Gabriel's Hosp. 871 F.Supp. 335, 339 (D.Minn.1994); 29 U.S.C. § 158. Therefore, in accordance with settled principles, preemption will not be found "unless [the State law] conflicts with federal law or would frustrate the federal scheme, or unless [the Court] discern[s] from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States." Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 747-748, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). Understandably, Courts are reluctant to infer preemption, see Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947), for, "[c]onsideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law." Maryland v. Louisiana, 451 U.S. 725, 746, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981); Boyle v. Anderson, 68 F.3d 1093, 1098 (8th Cir.1995); Parten v. Consolidated Freightways Corp. of Delaware, 923 F.2d 580, 582 (8th Cir.1991).
Notwithstanding the hesitation to find preemption, the Supreme Court has, nonetheless, identified "two distinct NLRA preemption principles." Building and Construction Trades Council of the Metropolitan District v. Associated Builders and Contractors of Massachusetts/Rhode Island, Inc., supra at 224, 113 S.Ct. 1190; Metropolitan Life Ins. Co. v. Massachusetts, supra at 747, 105 S.Ct. 2380. The first and the one applicable here is referred to as the Garmon preemption, which forbids the State and local *1111 regulation of activities that are "protected by Section 7 of the [NLRA], or constitute an unfair labor practice under Section 8."[8] See, San Diego Building Trades Council v. Garmon, supra at 244, 79 S.Ct. 773; BE&K Construction Co. v. United Brotherhood of Carpenters and Joiners of America, AFLCIO, 90 F.3d 1318, 1327 (8th Cir.1996); 29 U.S.C. §§ 157, 158(a)(1), (3); see also, Garner v. Teamsters, 346 U.S. 485, 498-499, 74 S.Ct. 161, 98 L.Ed. 228 (1953) ("[W]hen two separate remedies are brought to bear on the same activity, a conflict is imminent"). The Garmon preemption even prohibits the regulation of activities that the NLRA only arguably protects, or prohibits. See, Wisconsin Dept. of Industry v. Gould Inc., 475 U.S. 282, 286, 106 S.Ct. 1057, 89 L.Ed.2d 223 (1986); Employers Assoc., Inc. v. United Steelworkers of America, AFLCIO CLC, 32 F.3d 1297, 1300-01 (8th Cir.1994); Brennan v. Chestnut, 973 F.2d 644, 646 (8th Cir.1992). In effect, this rule of preemption is designed to prevent a conflict between State and local regulation, on the one hand, and Congress' "integrated scheme of regulation," on the other, Employers Assoc., Inc. v. United Steelworkers AFLCIOCLC, supra at 1300, which is embodies in Sections 7 and 8 of the NLRA, and which includes the choice of the NLRB, rather than State or Federal Courts, as the appropriate body to implement the Act. See, Building and Construction Trades Council of the Metropolitan District v. Associated Builders and Contractors of Massachusetts/Rhode Island, Inc., supra at 224, 113 S.Ct. 1190, citing Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 748-49, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985); United Paperworkers Int'l. Union, AFLCIO, Local 274 v. Champion Int'l. Corp., 81 F.3d 798, 802 (8th Cir.1996).
In Garmon, the Supreme Court held that a State Court was precluded from awarding damages to employers for economic injuries, which had resulted from peaceful picketing by labor unions that had not been selected by a majority of the employees as their bargaining agent. See, San Diego Building Trades Council v. Garmon, supra at 246, 79 S.Ct. 773; White Motor Corp. v. Malone, 412 F.Supp. 372, 378 (D.Minn.1976), rev'd. on other grounds, 545 F.2d 599 (8th Cir.1976). In so holding, the Garmon Court explained: "Our concern is with delimiting areas of conduct which must be free from state regulation if national policy is to be left unhampered." Id. Later, in Gould, the Supreme Court concluded that the NLRA preempts a statute which disqualifies entities from doing business with the State when those entities had violated the NLRA three times within a 5-year period. See, Wisconsin Department of Industry, Labor and Human Relations v. Gould Inc., supra at 291, 106 S.Ct. 1057. As the Court explained, "the Garmon rule prevents States not only from setting forth standards of conduct inconsistent with the substantive requirements of the NLRA, but also from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act." Id. at 286, 106 S.Ct. 1057, citing San Diego Building Trades Council v. Garmon, supra at 247, 79 S.Ct. 773.
Given the Record before us, we conclude that, if DeRoche were allowed to *1112 bring a claim for compensatory damages under the MLRA, then his action would impermissibly contravene the purposes of the Garmon preemption. Here, All American's assertedly discriminatory denial of employment to DeRoche is, arguably, encompassed within Section 7, or is prohibited by Section 8, of the NLRA, and, as an unavoidable result, the Garmon presumption of preemption attaches. See, Caldwell v. American Basketball Association, Inc., 66 F.3d 523, 526-27 (2nd Cir.1995) (finding that a failure to hire, which is based upon a potential employee's previous union affiliation, was arguably within the purview of the NLRA and, therefore, was preempted), cert. denied, 518 U.S. 1033, 116 S.Ct. 2579, 135 L.Ed.2d 1094 (1996); Rew v. International Organization, Masters, Mates and Pilots of America, Inc., 349 F.Supp. 542, 545 (E.D.Pa.1972) (preempting State law claim for damages, which arose out of a union's interference, under the NLRA, with an employer's hiring of an employee); cf., R.M. Perlman Inc. v. New York Coat, Suit, Dresses, Rainwear & Allied Workers' Union Local 89-22-1, I.L.G.W.U., 789 F.Supp. 127 (S.D.N.Y.1992) (holding that, while a State law claim for harm, which arises out of a union's picketing of a business, was within the scope of the NLRA, preemption was not applicable because the claim was not pled to include compensatory damages).
Of course, like most everything else, Garmon preemption is not without exception. As our Court of Appeals recently explained:
Garmon's broad preemption rule is subject to an exception when the arguably protected or prohibited activities "touch interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act." Garmon, 359 U.S. at 243-44, 79 S.Ct. at 778-79. Under this exception, the Supreme Court has declined to preempt a variety of state law claims even though they arose in a labor law context. See, e.g., Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 436 U.S. 180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978) (trespass by peaceful picketing); Farmer v. United Bhd. of Carpenters and Joiners, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977) (intentional infliction of emotional distress); Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966) (defamation).
* * * * * *
If the challenged conduct occurs in the context of a labor dispute, so that an unfair labor practice charge could have been filed, but the deeply rooted local interest in regulating that conduct is strong, the critical inquiry for Garmon preemption purposes is "whether the controversy presented to the state court is identical to ... that which could have been, but was not, presented to the Labor Board." Sears, Roebuck, 436 U.S. at 197, 98 S.Ct. at 1757.
Platt v. Jack Cooper Transport, Co., Inc., 959 F.2d 91, 94-95 (8th Cir.1992).
In Platt, the plaintiff was discharged from employment for reasons assertedly related to his reporting of safety complaints in the workplace. While recognizing that local governments have a deeply seated interest in protecting job-safety complainants from adverse employment actions, our Court of Appeals concluded that plaintiff "could have brought to the NLRB the specific claim asserted in [his] lawsuit that he was fired for making job safety complaints" and, therefore, the Court would be simply functioning as "an alternative forum for obtaining relief that the Board can provide." Id. In view of the Record before us,[9] and the nature of DeRoche's *1113 requested relief, the circumstances presented by Platt are "precisely the situation here," and we find that the "deeply rooted local interest" exception to the Garmon doctrine has no application here. Id.
Accordingly, DeRoche's Motion to Amend his Complaint, so as to plead a claim for damages under MRLA, must be denied. The conduct he alleges is "arguably" an unfair labor practice, and is subject to the exclusive jurisdiction of the National Labor Relations Board ("NLRB"). Were DeRoche's MRLA claim allowed to proceed, we would be required to find the operative facts, determine whether the applicable State law was consistent with the substantive provisions of the NLRA, and fashion a remedy to redress any proven violation. However, each of these same functions is within the exclusive province of the NLRB. See, Caldwell v. The American Basketball Association, Inc., supra at 527. As a consequence, were we to find that a private suit for compensatory damages was countenanced by Minnesota Statutes Section 8.31, for a violations of the MRLA a decision we do not here reach such a claim would be barred under the NLRA, as construed in Garmon, and would, therefore, be futile. For these reasons, we recommend that this portion of DeRoche's Motion to Amend also be denied.
NOW, THEREFORE, It is
ORDERED:
That the Plaintiff's Motion to Amend his Complaint to Include a Claim for Punitive Damages, and to Add a Claim Under Minnesota Statutes Section 179.12 [Docket No. 6] is denied.
NOTES
[1] DeRoche's Complaint claims damages in excess of $50,000 while, in removing the action, All American represented as follows:
The damages Plaintiff claims to sustain include the lost wages, lost fringe benefits, lost job opportunities, emotional anguish and loss of personal and professional reputation. Plaintiff also seeks attorney's fees, costs and disbursements incurred in this action. * * * Plaintiff's Complaint claims he earned at least $23,666 per year, not including benefits. It is clear that if Plaintiff succeeds on his claims and is awarded past and future earnings, the $75,000 jurisdictional threshold of this Court will be exceeded.
DeRoche does not challenge removal, and we are unable to say, on the Record before us, that removal was improper or improvident.
[2] Minnesota Statutes Section 181.81, in pertinent part, states as follows:
If a violation is found the court in granting relief may enjoin further violations and may include in its award reinstatement or compensation for any period of unemployment resulting from the violation together with actual and reasonable attorneys fees, and other costs incurred by the plaintiff.
[3] In pertinent part, Section 549.191 provides as follows:
After filing the suit a party may make a motion to amend the pleadings to claim punitive damages. The motion must allege the applicable legal basis under section 549.20 or other law for awarding punitive damages in the action and must be accompanied by one or more affidavits showing a factual basis for the claim. At the hearing on the motion, if the court finds prima facie evidence in support of the motion, the court shall grant the moving party permission to amend the pleadings to claim punitive damages.
[4] The Plaintiff proffers Rosenbloom v. Flygare, 501 N.W.2d 597 (Minn. 1993), for the proposition that paralleling claims, including claims for punitive damages, are permissible under Section 363. Rosenbloom, however, merely states that a claim for punitive damages, under Section 363, may be pursued in conjunction with a claim for compensatory damages under Section 181.81. As such, Rosenbloom does not speak to the question before this Court, and its holding is unavailing to DeRoche's claimed entitlement to plead for punitive relief. Likewise, DeRoche's reliance on Vaughn v. Northwest Airlines, Inc., 558 N.W.2d 736 (Minn.1997), and Bruss v. Toro Co., 427 N.W.2d 17 (Minn.App.1988), is misplaced. In both cases, the Court did no more than allow claims, which arose out of the same set of operative facts as supported a Section 181.81 action, to undergird a Section 363 action. Again, these decisions lend no light to the question before us, and All American concedes, as it must, that paralleling claims, under Sections 181.81 and 363, are permissible. These cases do not so much as intimate, however, that punitive damages, under Section 181.81, are allowable.
Finally, the Plaintiff contends that the decision in Bucko v. First Minnesota Sav. Bank, 471 N.W.2d 95 (Minn.1991), supports his assertion that punitive damages, pursuant to Minnesota Statutes Section 549.20, can be awarded for a violation of statutes which do not `specifically authorize punitive relief, so long as the prima facie showings, as required by Section 549.20, are satisfied. Bucko, however, is readily distinguishable, for Minnesota Statutes Section 181.75, Subdivision 4 unlike Section 181.81, which limits any recovery to compensation and reinstatement provides for recovery of "any and all damages recoverable at law." Minnesota Statutes Section 181.75, Subdivision 4. In addition, as we note in the text of this Order, Sections 181.81 and 363 are closely related in their statutory purpose namely, to provide a uniform approach to address incidents of age discrimination the allowance of punitive damages, under Section 181.75, Subdivision 4, which relates to the employment of polygraphs, does not argue in favor of the same relief in a nonpolygraph case. Had the Minnesota Legislature intended to allow "any and all damages recoverable at law," in a Section 181.81 case, they certainly had the opportunity of expressing that intent in the provisions of that Section. The Legislature did not so specify, and we should not presume to legislate such matters which are well outside of our judicial role.
[5] in his original Complaint, DeRoche alleged a claim for punitive damages under Section 363. As we have recently reiterated:
[W]e have held, consistent with precedent within this District, that a specific punitive damage provision in the Minnesota Human Rights Act ("MHRA"), displaces the requirements of Minnesota Statutes Section 549.191.
Backlund v. City of Duluth, 176 F.R.D. 316, 322 (D.Minn.1997), citing Ulrich v. City of Crosby, 848 F.Supp. 861, 876 (D.Minn.1994); Daines v. City of Mankato, 754 F.Supp. 681, 704 (D.Minn.1990); Engele v. Independent School District No. 91, 846 F.Supp. 760, 768 (D.Minn.1994).
As a consequence of our ruling, that punitive damages are unavailable under Section 181.81, we have no occasion to consider whether DeRoche's showings suffice to present a prima facie entitlement to plead exemplary damages. Further, since Section 363 displaces such a prima facie showing under Section 549.191, we need not, and do not reach the sufficiency of DeRoche's prima facie entitlement or plead a punitive damage claim.
[6] Minnesota Statutes Section 8.31, Subdivision 1, lists the following claims as permitting the commencement of a private cause of action for damages:
The attorney general shall investigate violations of the laws of this state respecting unfair, discriminatory, and other unlawful practices in business, commerce, or trade, and specifically, but not exclusively, the non-profit corporation act (sections 317A.001 to 317A.909), the act against unfair discrimination and competition (sections 325D.01 to 325D.07), the unlawful trade practices act (sections 325D.09 to 325D.16), the antitrust act (sections 325D.49 to 325D.66), section 325F.67 and other laws against false or fraudulent advertising, the antidiscrimination acts contained in section 325D.67, the act against monopolization of food products (section 325D.68), the act regulating telephone advertising services (section 325E.39), the prevention of consumer fraud act (sections 325F.69 to 325F.70), and chapter 53A regulating currency exchanges and assist in the enforcement of those laws as in this section provided.
[7] In relevant part, Title 29 U.S.C. § 158 provides as follows:
(a) Unfair labor practices by employer It shall be an unfair labor practice for an employer
* * * * * *
(3) by discrimination in regard to hire or tenure of employment *** to encourage or discourage membership in any labor organization.
[8] A second preemption principle the Machinists preemption prohibits the State and municipal regulation of areas that have been left "to be controlled by the free play of economic forces.'" Building and Construction Trades Council of the Metropolitan District v. Associated Builders and Contractors of Massachusetts/Rhode Island, Inc., 507 U.S. 218, 224, 113 S.Ct. 1190, 122 L.Ed.2d 565 (1993), quoting Lodge 76, Intern. Ass'n of Machinists v. Wisconsin Employment Relations Comm'n., 427 U.S. 132, 140, 147, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976); see also, Golden State Transit Corp. v. City of Los Angeles ("Golden State I"), 475 U.S. 608, 614, 106 S.Ct. 1395, 89 L.Ed.2d 616 (1986); Golden State Transit Corp. v. Los Angeles ("Golden State II"), 493 U.S. 103, 111, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989) Machinists preemption preserves Congress' "intentional balance between the uncontrolled power of management and labor to further their respective interests." Golden State I, supra at 614, 106 S.Ct. 1395 (citations omitted).
[9] For these purposes, we assume, arguendo, that a "deeply rooted local interest" apart from the deference to be extended to union membership, under both Federal and State law has been shown to exist. While we find no such showing, either in DeRoche's Complaint, or in his arguments to this Court, our analysis of any exception to Garmon preemption presumes the existence of such a local interest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2311520/ | 38 F.Supp.2d 18 (1999)
Amy GLEKLEN, Plaintiff,
v.
DEMOCRATIC CONGRESSIONAL CAMPAIGN COMMITTEE, INC., et al., Defendants.
No. Civ.A. 98-0072 (JR).
United States District Court, District of Columbia.
February 22, 1999.
Roy W. Krieger, Paleos & Krieger, P.C., Washington, DC, for plaintiff.
Barry J. Reingold, Cynthia Hawkins, Perkins Coie, Washington, DC, for defendants.
MEMORANDUM
ROBERTSON, District Judge.
Plaintiff sues her former employer and several individuals under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), the District of Columbia Human Rights Act, D.C.Code § 1-2505(b), and the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq., asserting that she was fired because she was pregnant. Defendants move for summary judgment. Because no reasonable juror could find that defendants' stated legitimate, non-discriminatory reason for firing plaintiff was a pretext, or that defendants fired her in order to deprive her of maternity leave, the motion must be granted.
Facts
Plaintiff was hired as the Deputy Director of the Harriman Communications Center (HCC) in November 1993. The HCC is part of the Democratic Congressional Campaign Committee (DCCC), which exists to help elect and reelect Democrats to the U.S. House of Representatives. Plaintiff was a full-time employee *19 from November 1993 through the November 1994 elections. She took paid maternity leave from mid-November 1994 to mid-February 1995, after the birth of her second child. She then worked three days a week until May 1996, when she returned to a full-time schedule during the intensive period before the November 1996 elections. She resumed her three-day-a-week schedule after the elections and was a part-time employee when, in January 1997, she informed her supervisor, Dennis Hayden, that she was pregnant and that her baby was due in late July or early August.
On February 21, Hayden asked plaintiff to consider returning to work full-time. The DCCC had just launched "the most ambitious off-year program" in the DCCC's history (Def.Ex.7). Five new employees were hired to work on the Member Services Program, two of them specifically assigned to the HCC. On March 3, Hayden again asked plaintiff to return to work full-time. Plaintiff refused these requests, explaining that she had commitments to her children and to a graduate course at Johns Hopkins University. Hayden persisted, offering to cover for her on the one afternoon per week when she would have to leave early to attend her course, but plaintiff did not accept that offer. Instead, on March 5 and March 7, she discussed the situation with Hayden's supervisor, Matt Angle, the DCCC Executive Director. Angle told her that she would be terminated if she did not agree to work full-time and that a part-time "job share" arrangement was not an option. Plaintiff nevertheless continued to decline full-time employment. She was then given written notice of her termination, effective April 1, 1997. It is undisputed that plaintiff had no medical condition that prevented her from resuming a full-time work schedule.
Plaintiff was replaced on April 1 by Susan Maiers. Maiers was a full-time employee of DCCC who had previously worked in the fundraising office of DCCC. On April 1, she was also doing the work of HCC business manager. She continued to perform those business manager duties for some four months until a permanent business manager was hired in August 1997. The search for a replacement business manager began two weeks after Ms. Maiers took over plaintiff's job.
Plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC) in June 1997, alleging that DCCC's decision to require her to resume full-time work violated the Pregnancy Discrimination Act. On October 14, 1997, EEOC issued a "no reason to believe" letter, concluding, "The evidence shows that [plaintiff] [was] discharged because [she] refused to work full-time when Respondent changed [her] position from part-time to full-time duty." (Def.Ex. 20). It is undisputed that no DCCC employee nor any member of Congressman Frost's personal staff has ever been denied maternity or paternity leave.
Analysis
To establish a prima facie case of discrimination under the Pregnancy Discrimination Act[1], a plaintiff must show that: (1) she was pregnant and/or subject to a pregnancy-related condition; (2) she was qualified for the position; (3) she was affected by an adverse employment action; and (4) the employment action "occurred under circumstances that give rise to an inference of discrimination." Milliner v. District of Columbia, 932 F.Supp. 345, 350 (D.D.C.1996) (citation omitted). It is undisputed that plaintiff was pregnant, qualified, and fired. The facts arguably (but only arguably, as discussed below) permit the inference that she was fired in April because her employer knew that she would be asking for maternity leave in August. This inference would successfully establish *20 a prima facie case of discrimination. Defendants, for their part, have adduced evidence that plaintiff was terminated because she refused to work on a full-time schedule when her full-time attention to the job was needed and when she was not disabled in any way by her pregnancy. That evidence satisfies the defendants' burden of producing a non-discriminatory reason for their action.
The recent en banc opinion of the Court of Appeals in Aka v. Washington Hospital Center, 156 F.3d 1284 (D.C.Cir.1998), provides the framework for analyzing the record in this case.
"Assuming ... that the employer has met its burden of producing a non-discriminatory reason for its actions, the focus of proceedings at trial (and at summary judgment) will be on whether the jury could infer discrimination from the combination of (1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of the employer) or any contrary evidence that may be available to the employer (such as evidence of a strong track record in equal opportunity employment)." Id. at 1289.
The first Aka factor is plaintiff's prima facie case. Plaintiff's theory is that defendants insisted on plaintiff's working full-time knowing that she would refuse, so that they could fire her, so they could avoid granting her maternity leave several months later. But: defendants had accommodated the plaintiff in the past; they were launching an important new program; she was deputy director and was deemed an important player; and she refused full-time work in part because of her own agenda at Johns Hopkins, declining even her supervisor's offer to cover for her one afternoon per week. To infer that defendants were motivated in April by their desire to avoid giving plaintiff her maternity leave in August requires an improbable leap of logic over all of those facts. If plaintiff has presented a prima facie case at all, it is an extremely weak one.
The second Aka factor is plaintiff's attack on defendants' stated rationale. Here, plaintiff's claim is even weaker. She asserts in support of her claim that defendant did not really need her services full-time and that her replacement, Ms. Maiers, did not work full-time at the job either. But there is no dispute that Ms. Maiers assumed the duties of deputy director on the day plaintiff was fired, or that Ms. Maiers was a full-time employee. The fact that Ms. Maiers was apparently able to handle the extra work of HCC business manager may prove that she was an efficient worker. It does not tend to prove that the defendants intended to replace plaintiff with another part-time worker. Indeed, there is no dispute that defendant promptly began searching for someone who would take over Ms. Maiers' previous job. Plaintiff has neither alleged nor shown that defendants dallied over the hiring of Ms. Maiers' replacement. No reasonable juror could infer from the facts of record that defendants' stated rationale was a sham.
As for further evidence of discrimination, the third Aka factor, plaintiff points to none. Defendants, on the other hand, are able to point to evidence of their "strong record in equal opportunity employment." It is undisputed that no DCCC employee, including plaintiff, has ever been denied maternity or paternity leave. When plaintiff took maternity leave in late 1994, defendants expressed no opposition. After plaintiff returned to work in February 1995, defendants did not punish her, but rather agreed to let her work three days a week so that she could spend more time with her family.
The Family and Medical Leave Act requires employers to allow employees up to twelve weeks of leave per year if the leave *21 is requested for one of the purposes set forth in the statute, including the birth of a child to the employee. 29 U.S.C. § 2612(a)(1)(D). Plaintiff's claim is that defendants interfered with her exercise of FMLA rights by terminating her in April 1997, thereby effectively denying her the FMLA leave request she would have made in August 1997. It is undisputed that no DCCC employee nor any employee of Congressman Frost's personal staff has ever been denied maternity or paternity leave. Plaintiff herself freely took maternity leave from DCCC in late 1994. The undisputed evidence shows that work schedules at DCCC are driven by workload, not the maternity or paternity status of its employees. There is no evidence from which a jury could reasonably find a causal link between defendants' April 1997 request that plaintiff resume a full-time schedule and the impending birth of her child in August 1997.
Summary judgment will be granted for the defendants.
NOTES
[1] The provisions of the D.C. Human Rights Act prohibiting discrimination on the basis of pregnancy are construed in a manner consistent with the federal statute. Mulhern v. Bureau of National Affairs, Inc., No. CIV.A.86-761, 1986 WL 449, at *4 n. 2 (D.D.C. Sept.30, 1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2311522/ | 38 F.Supp.2d 892 (1999)
Genaro GARAY and Eva Garay, parents and heirs of Nicholas Garay, deceased, and Ann Case, personal representative and administrator of the estate of Nicholas Garay, Plaintiffs,
v.
MISSOURI PACIFIC RAILROAD COMPANY, a corporation, Union Pacific Railroad Company, a corporation, and Trinity Industries, Inc., individually and as successor to Pullman-Standard, Inc., and John Doe, Corporation, Inc., unknown manufacturers, Defendants.
Civil Action No. 96-1127-WEB.
United States District Court, D. Kansas.
February 13, 1999.
*893 *894 Pedro L. Irigonegaray, Irigonegaray & Associates, Topeka, KS, Robert L. Pottroff, Myers, Pottroff & Ball, Manhattan, KS, Bradley W. Maudlin, Garden City, KS, for Genaro Garay, Eva Garay, Ann Case.
James M. Yeretsky, Gregory F. Maher, Michael J. Smith, Yeretsky & Maher, Kansas City, MO, for Missouri Pacific Railroad, Union Pacific Railroad Co.
Kenneth L. Weltz, Klenda, Mitchell, Austerman & Zuercher, L.L.C., Wichita, KS, Brad W. Schacht, Hugh Q. Gottschalk, Todd A. Fredrickson, Otten, Johnson, Robinson, Neff & Ragonetti, P.C., Denver, CO, for FMC Corp.
Memorandum and Order
WESLEY E. BROWN, Senior District Judge.
This is a product liability action brought under Kansas law. Plaintiffs allege that the decedent, Nicholas Garay, was killed in an accident involving a defective rail car. The matter is before the court on motions for summary judgment filed by defendant FMC Corporation ("FMC") (Doc. 73) and by defendants Union Pacific Railroad Company and Missouri Pacific Railroad Company ("the railroads") (Doc. 75). The court has reviewed the parties' submissions and the relevant law and is prepared to rule.
I. Facts.
The following facts are undisputed or stated in the light most favorable to the plaintiffs.[1]
A. Background.
The defendant FMC manufactured rail-car MP715966 in August of 1967. This was the hopper car in which the decedent, Nicholas Garay ("Garay"), died. At the time of Garay's death, the hopper car was owned by defendant Missouri Pacific. Union Pacific owned the rail siding in Sharon Springs, Kansas, where the hopper car was located at the time of Garay's death.
At the time of his death, Garay was an employee of Bean Acres, Inc. He had been hired the week of March 21, 1994. Bean Acres operates a facility that processes pinto beans. It receives shipments of beans by truck, processes them, and ships them out. Garay's primary responsibility during the three weeks he worked at Bean Acres was loading sacks of beans onto boxcars.
Garay was nineteen years old at the time of his death. He was described as a quiet person and a good worker who did as he was told. He had a sixth-grade education. Garay did not speak or read English; he spoke only Spanish.
During Garay's first week working at Bean Acres, he and co-worker Eliseo Perez were helping to load beans into a hopper car. Pl.Resp., Exh. 1 at 33, 39. Garay was inside the car spreading beans to the *895 sides of each compartment as beans were being poured into the top of the hopper car. Id. at 39. Garay and Perez were told by Jesse Montoya, another co-worker, that they had to do this in order to fit more beans into the car. Perez told Montoya he didn't want to do this because it was kind of dangerous. Id. According to Perez, he told Garay (in Spanish): "I said, as soon as you get to the pile, I said you can get in there and you can start spreading them around, if you get your feet buried about halfway, I said, you are gone. I said, You are going to be knocked down, you can fall down and a whole bunch of beans is going to come and cover you up." Railroad Mem., Exh. 9 at 14-15. Garay just smiled and said it wasn't dangerous at all. Id. at 40, 78. Montoya then told them he just wanted to put more beans in the car and that they didn't have to do it, and Garay got out of the car.
When Garay called his mother to tell her he had gotten the job with Bean Acres, he said he was going to be running sacks through a machine that would sew them, and that on occasion they would be sending him to check boxcars. FMC. Mem., Exh. H at 25-26. When she asked whether it was a dangerous place to work in, he answered that the most dangerous part of the job was when he had to get on top of the boxcars. Id. at 27. Garay also talked to his brother and mentioned that sometimes beans got moist and would stick to the walls of a hopper car and that he would have to get up on the edge of the car and work with a shovel, and that if anybody fell inside a car there was nothing there they could grab on to, to pull themselves out. Id., Exh. F at 16-17.
B. Unloading the Hopper Car.
Sometime before April 6, 1994, Bean Acres had processed a cargo of beans for shipment on Union Pacific to California. Upon arrival, however, the shipment was rejected due to moisture contamination. Union Pacific returned the shipment to Bean Acres, hired Bean Acres to reprocess the beans and, subsequently, sold the beans to Bean Acres for an agreed-upon price. In order to reprocess the beans, Bean Acres had to unload them. It was a relatively rare occurrence for Bean Acres to unload a hopper car. April 6, 1994, was the first time Garay had ever participated in the unloading of a hopper car.
A hopper car is unloaded by opening hatches at the bottom and on top of the car, which permits the cargo to flow out of the bottom. At Bean Acres, employees placed a small conveyor belt under the car, so when the hatches were opened, the belt would take the cargo from under the car to a larger conveyor belt which, in turn, carried the cargo to a waiting truck. Because of the size and speed of the small belt, the hatch at the bottom of the hopper car could not be opened more than five or six inches.
On the morning of April 6, 1994, Garay and three other Bean Acres employees, upon instruction from their supervisor, entered the hopper car through the top hatch to remove by hand a layer of beans, described as a "crust", which had formed on top of the product due to excess moisture. The employees picked up chunks of beans and placed them in buckets for removal from the hopper car. They prepared the truck for unloading and then took their lunch break.
After the conveyor belts were in place, one of the employees opened the bottom hatch. There is evidence in the record that the men encountered some difficulty in getting beans to flow out of the car due to moisture. See Pl.Resp. to Railroads, Exh. 1 at 73. Rick Carson, a supervisor at bean Acres, testified that when they first started unloading, wet beans at the bottom clogged the hatch and they had to get a claw hammer to claw the beans loose and get them flowing. Pl.Resp. to Railroads, Exh. 6 at 25-27. Eliseo Perez testified that the beans were coming out slow. Id., Exh. 1 at 73. At some point, Garay entered the hopper car, although it is not entirely unclear when or why. One reasonable inference *896 from the record is that he did so to facilitate the flowing of beans or to make sure they were flowing. Eliseo Perez testified that he and Pondo climbed to the top of the hopper car "to see how the beans was running." FMC Mem., Exh. C at 20. Perez testified that Pondo and Garay were sitting down on the beans inside of the compartment. Id. at 20-21; Pl.Resp. to Railroads, Exh. 1 at 72. They were talking. Id. Perez asked them if everything was running okay; they said yes. Id. at 21. Garay pointed out a little funnel the beans were making as they ran out and asked Perez if he thought it was very fast. Perez said yes. Jesse Montoya then called to Perez to come down and help move the truck. Perez climbed down and was followed by Pondo. Nicholas didn't come down; he was still inside the car. Id.
The next anyone knew of Garay was a short time later when a co-worker noticed Garay's tennis shoe sticking out of the opening at the bottom of the hopper car. The co-worker testified that the beans had been draining at a very slow pace, and that at the moment he saw the tennis shoe the beans drained in great quantities. Id., Exh. 3 at 27-28. Garay had been completely buried in the beans. The co-worker found the supervisor, who called emergency services. Rescue and revival efforts, however, were unsuccessful.
Garay died of suffocation. Included in plaintiffs' evidence is the expert opinion of Dr. Jill Gould, M.D. Railroads' Mem., Exh. 14. In Dr. Gould's opinion, plaintiff died of asphyxia caused by "1) occlusion of the airways with beans and debris, 2) mechanical compression of the chest by weight of the beans, and 3) lack of available oxygen for breathing in the confined space." She stated further that Garay "was alive at the time of being entrapped and was actively inhaling foreign material into his respiratory tract." She did not express an opinion as to what caused Garay to be in the hopper car (i.e., whether or not he fell).
Plaintiffs have retained an expert witness, consulting engineer John Sevart, who contends the hopper car was defective in a number of respects. In Sevart's opinion, the hopper car should have been equipped with lanyard (safety line) attachment points, notices calling attention to the attachment points, and grates over its top hatches with access points for entry into the car. Sevart contends the hopper car should have had a written warning identifying the hazard of suffocation. According to Sevart, the railroads should have instructed users of the hopper car (1) not to enter the car and why, (2) about use of lanyards (what type of lanyard to use, how to attach them and the reason for their use), and (3) on means of accelerating unloading without having someone enter the hopper car. Sevart does not contend that these warnings should have been given in Spanish.
II. Summary Judgment Standards.
The standards governing the consideration of a motion for summary judgment are well established. The Federal Rules of Civil Procedure provide that summary judgment is appropriate when the documentary evidence filed with the motion "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A principal purpose "of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court's inquiry is to determine "whether there is the need for a trial whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The court must enter summary judgment "against a party who fails to make a *897 showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact on its claim(s). Rule 56, however, imposes no requirement on the moving party to "support its motion with affidavits or other similar materials negating the opponent's claim." Id. at 323, 106 S.Ct. 2548 (emphasis in original). Once the moving party has properly supported its motion for summary judgment, the nonmoving party may not rest upon mere allegations or denials, but must set forth specific facts showing a genuine issue for trial, relying upon the types of evidentiary materials contemplated by Rule 56. Fed. R.Civ.P. 56(e). Each party must demonstrate to the court the existence of contested facts on each claim it will have to prove at trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The court reviews the evidence on summary judgment under the substantive law and based on the evidentiary burden the party will face at trial on the particular claim. Anderson, 477 U.S. at 254, 106 S.Ct. 2505.
III. Discussion.
Plaintiffs contend the defendants are liable under the Kansas Product Liability Act for design defects and warning defects. Plaintiffs also bring a negligence claim against the railroads, contending they were negligent in failing to provide a reasonably safe railcar to Bean Acres, as their shipper and consignee.
A. Preemption.
Defendants first contend that all of plaintiffs' claims are preempted by the Federal Safety Appliance Act ("FSAA"), 49 U.S.C. §§ 20301, et seq. The act provides that railcars may be used only if they have certain listed safety features, including automatic couplers, secure sill steps and hand brakes, grab irons and handholds and drawbars at specified heights. § 20302. It is undisputed that the FSAA does not require the safety features or warnings which plaintiffs' expert witness contends should have been included in this hopper car.
The question of preemption is basically one of congressional intent. Barnett Bank v. Nelson, 517 U.S. 25, 116 S.Ct. 1103, 134 L.Ed.2d 237 (1996). If, in enacting a federal statute, Congress intends to set aside state law, then the Supremacy Clause requires courts to disregard the state law. See id. Preemption can occur in three ways. First, Congress sometimes puts an express preemption provision in a statute. Id. Second, even if there is no such explicit language, state law is nevertheless preempted if the federal statute creates a scheme of regulation "so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it." Id. (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). And third, state law is preempted if it is in "irreconcilable conflict" with federal law. Id.
In this case, the defendants argue both express and pervasive scheme preemption. Both arguments focus on the FSAA and regulations promulgated thereunder. Defendants argue (1) that the statute and regulations pervasively occupy the field of safety equipment on rail cars and (2) that because of the existence of the Railroad Safety Appliance Standards, state law is expressly preempted under 49 U.S.C. § 20106, which states in relevant part:
A State may adopt or continue in force a law, regulation, or order related to railroad safety until the Secretary of Transportation prescribes a regulation or issues an order covering the subject matter of the State requirement.
The word "covering" is a restrictive term that means substantially subsuming the subject matter. CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The defendant *898 correctly notes that the Supreme Court has, on more than one occasion, stated that the FSAA does preempt state law. Gilvary v. Cuyahoga Valley Ry. Co., 292 U.S. 57, 60-61, 54 S.Ct. 573, 78 L.Ed. 1123 (1934) ("So far as the safety equipment of such vehicles is concerned, these acts operate to exclude state regulation whether consistent, complementary, additional, or otherwise."); Pennsylvania R. Co. v. Public Service Comm'n of Commonwealth of Pennsylvania, 250 U.S. 566, 569, 40 S.Ct. 36, 63 L.Ed. 1142 (1919) ("[R]egulation by the paramount authority has gone so far that the statute of Pennsylvania cannot impose the additional obligation in issue here.").
However, these cases, and other cases holding preemption applicable, involved state regulations of safety equipment actually mentioned in federal regulations. Gilvary, 292 U.S. at 58, 54 S.Ct. 573 (automatic couplers); Pennsylvania R. Co., 250 U.S. at 567, 40 S.Ct. 36 (platforms on end cars). See also Ouellette v. Union Tank Car Co., 902 F.Supp. 5, 10 (D.Mass.1995) (placement of handholds held to be a matter substantially subsumed by the FSAA). In other cases, the Supreme Court has suggested that the preemptive effect of the Safety Appliance Act extends only to the types of equipment listed in the statute. In Atlantic Coast Line Railroad Co. v. State of Georgia, 234 U.S. 280, 34 S.Ct. 829, 58 L.Ed. 1312 (1914), the Court held that a Georgia statute requiring headlights on locomotives was not preempted by the FSAA because the act did not "provide regulations for locomotive headlights." Id. at 293, 34 S.Ct. 829. See also Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 611, 47 S.Ct. 207, 71 L.Ed. 432 (1926) ("Does the legislation of Congress manifest the intention to occupy the entire field of regulating locomotive equipment? Obviously it did not do so by the Safety Appliance Act, since its requirements are specific.").
The FSAA and its regulations do not provide a definition of "safety appliance," but rather contain "a strikingly specific laundry list" of required equipment for each type of rail car. Jordan v. Southern Ry. Co., 970 F.2d 1350, 1352 (4th Cir.1992). Although the Act applies to these specific types of equipment, "[n]o other device, however necessary for safety, falls within its reach." Id. at 1353. The court thus concludes that the FSAA does not subsume the entire field of devices which could be deemed safety equipment, but only the subject of those devices which are listed in the statute. Because the FSAA does not list devices such as lanyard attachment points or grates on hopper cars, the plaintiffs' defect and negligence claims in this case are not preempted. Similarly, plaintiffs' warning claims are not preempted by 49 C.F.R. §§ 301 and 303. The stenciling required under those sections merely identifies the car by owner, number, built date, and the letter "R" to signify a restricted car. 49 C.F.R. §§ 301 & 303. The regulations do not require or address whether any warnings must appear on the car. Therefore, it does not subsume the subject of warnings, and the plaintiffs' claim is not preempted.
B. Issues Under the Kansas Product Liability Act.
Defendants next contend there is no evidence that any act or omission on their part caused or contributed to Garay's death. They correctly point out that the mere fact that Garay died while using the hopper car is insufficient to establish causation. The railroads argue "[t]here is no evidence as to how Nicholas came to be inside the hopper car nor whether he exited the hopper car after Pondo saw him and then re-entered the hopper car." Railroads' Mem. at 15. And, "[i]t is unknown whether Nicholas voluntarily entered the hopper car, fell into the hopper car, was forced into the hopper car by a third party, etc." Id. In sum, they contend no one knows whether some act of the defendants caused or contributed to Garay's death.
*899 Normally, causation is a question of fact for the jury to decide. McCleary v. Boss, 24 Kan.App.2d 791, 792, 955 P.2d 127, 128 (1997). It may only be resolved on summary judgment where the facts of the case will support only one conclusion and reasonable minds could not differ as to that conclusion. Id. Although there is no direct evidence in this case as to the manner in which Garay became entrapped in the hopper car, there is circumstantial evidence from which a jury could reasonably infer facts to support a finding of causation. See Mays v. Ciba-Geigy Corp., 233 Kan. 38, 661 P.2d 348, 360 (1983) (elements of a claim, including causation, may be proven inferentially, by either direct or circumstantial evidence). For example, a jury could find on this record that the employees were having difficulty getting beans to flow out of the car, that Garay was in the car to facilitate or to check on the flow, and that Garay became entrapped when a section or pile of beans collapsed from under him. If such facts are found, a reasonable jury could likewise conclude that the defendants' failure to have lanyard attachment points and adequate warnings and instructions on the car caused or contributed to Garay's death. Cf. Patton v. TIC United Corp., 77 F.3d 1235 (10th Cir.), cert. denied, 518 U.S. 1005, 116 S.Ct. 2525, 135 L.Ed.2d 1049 (1996) (Under Kansas law, manufacturer's failure to provide adequate warning creates a rebuttable presumption of causation). Accordingly, defendants are not entitled to summary judgment on this argument.
The railroads also argue that evidence of causation is lacking under a strict liability theory because none of the design alternatives proposed by plaintiff's expert would have prevented Garay's death. They argue that the evidence suggests Garay did not fall into the hopper car but entered it voluntarily. Because the grate covering design suggested by plaintiff's expert includes access points that allow a person to enter a car, defendants argue that such a covering would not have prevented this accident. They further contend that the lanyard attachment points suggested by the expert would not have prevented the accident because Garay could have removed any lanyard to which he was attached. Moreover, they point out that Bean Acres did not own a lanyard at the time of Garay's death.
These arguments are insufficient to demonstrate an entitlement summary judgment. As the court noted above, causation is ordinarily a question of fact for the jury to decide. Plaintiffs have offered circumstantial evidence as to how Garay became entrapped in the beans, and the issue thus presents a genuine question of fact for the jury to determine from all the evidence. The related questions of whether a grate covering or use of a lanyard would have prevented the accident are likewise genuine issues of fact. The argument that a grate would not have prevented the death presumes that Garay did not fall into the car, but that is a question of fact for the jury to determine. The argument that the failure to have a lanyard attachment could not have caused the accident because Garay "could have removed any lanyard" is similarly unavailing; to obtain summary judgment defendant would have to show beyond dispute that Garay would have removed a safety line. Finally, the fact that Bean Acres did not own a lanyard at the time of the accident is not sufficient. A reasonable jury could find that if lanyard attachments and warnings and instructions had been present on the car, those instructions and warnings would likely have been followed by users of the car. Cf. Arnold v. Riddell, Inc., 882 F.Supp. 979, 996 (D.Kan.1995) (citing Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 410, 681 P.2d 1038 (1984)) (there is a presumption under Kansas law that an adequate warning will be read and heeded).
Defendants make two final arguments with regard to warnings and causation. First, they argue that they had no *900 duty to warn Garay and that a lack of warnings did not cause his death, because Garay had previously been warned about the dangers of being in the hopper car, including the danger of suffocation. See K.S.A. § 60-3305 (no duty to warn with regard to knowledge that a reasonable user of the product did, should, or was required to possess). Viewed in the light most favorable to the plaintiffs, however, the evidence shows that Garay had been warned of a risk of being buried in beans while the car was being loaded, but was not informed and may not have been fully aware of the risk of being sucked under while beans were being unloaded from the bottom of the car.[2] A reasonable jury could conclude there is a significant distinction between these two hazards. The hazard of being knocked over and covered by beans being poured into the top of the hopper car was relatively obvious, and the deposition of Eliseo Perez indicates he warned Garay of that danger on a prior occasion.[3] The hazard to a worker in the car during unloading, however, was not nearly as obvious. In the latter situation, a latent hazard could form underneath the surface of the cargo, unbeknownst to a worker on top. Perez testified that nobody said anything to Garay about it being dangerous to be in there while the car was unloading and it never crossed his mind to do so despite the fact that he had previously warned Garay about the danger from loading. See Pl.Resp. to Railroads, Exh 1 at 80. This accident occurred only shortly after the workers were instructed by their supervisor to enter the hopper car in order to clean out wet beans. And, there is testimony that during unloading Garay was seen in the car by at least two other co-workers and that neither of them warned him of the danger or told him to get out of the car. A reasonable jury could find on this record that Garay did not and should not necessarily have been expected to have knowledge of the risk from being in the hopper car during unloading. Under these circumstances, the court cannot say as a matter of law that the defendants had no duty to warn.
Second, the defendants contend that any warning on the car would have been printed in English and would not have been heeded by Garay, a Spanish speaker who did not read or speak English. It is no great stretch to infer, however, that a warning in English would, more likely than not, have been read by a co-worker or supervisor and would have been transmitted to the plaintiff. As noted above, there is a presumption under Kansas law that an adequate warning will be read and heeded. Arnold v. Riddell, Inc., supra. Under the circumstances, there is a genuine issue of fact as to whether a failure to warn caused or contributed to plaintiff's death.
C. Negligence Per Se.
Plaintiffs bring a claim of negligence per se, alleging that the defendants failed to comply with OSHA standards. The defendant railroads argue that plaintiffs cannot base a negligence per se claim on OSHA violations. The court agrees.
Section 653(b)(4) of Title 29 of the U.S.Code provides:
*901 Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.
Leaving aside the question of whether the defendants, who were not Garay's employers, had any duty to him under OSHA, the court concludes that § 653(b)(4) precludes a negligence per se cause of action based on OSHA violations. In so concluding, the court agrees with Judge Marten of this court, Williams v. KOPCO, Inc., No. 94-1451, 1998 WL 159516 (D.Kan.1998), and the reasoning of Judge Van Bebber in Martin v. MAPCO Ammonia Pipeline, Inc., 866 F.Supp. 1304, 1306 (D.Kan.1994) (discussing admissibility of Pipeline Safety Act, 49 U.S.C. §§ 60101 et seq., which has a provision analogous to § 653(b)(4)). See also McHargue v. Stokes Div. of Pennwalt Corp., 912 F.2d 394, 396 (10th Cir.1990) (in Colorado product liability case, holding that evidence on OSHA standards in general, not admitted for liability or standard of care, was admissible); Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 856 P.2d 906 (1993) (upholding admission of OSHA standard as evidence of foreseeability). Therefore, the court grants summary judgment to the defendants on plaintiffs' negligence per se claim. The court expresses no opinion at this time as to whether evidence of OSHA standards might be admissible at trial for some purpose other than to establish negligence per se.
D. Survival Claim.
Finally, the defendants contend that plaintiffs have not put forth evidence to support a survival action under K.S.A. § 60-1801 because there is no evidence that the decedent experienced conscious pain and suffering before his death. See St. Clair v. Denny, 245 Kan. 414, 422, 781 P.2d 1043 (1989). Defendants point out that Dr. Jill Gould did not give an opinion in her report that Garay experienced conscious pain and suffering.
Plaintiffs rely on the report of Dr. Gould, who did not examine Garay's body but who did interpret the medical and other evidence already available. According to Dr. Gould, Garay died of asphyxia. In her opinion, Garay "was alive at the time of being entrapped and was actively inhaling foreign material into his respiratory tract." The court concludes that this evidence, combined with testimony that plaintiff was conscious while in the hopper car at some time while the car was being unloaded, and the lack of any evidence that plaintiff was unconscious at any time before his breathing became restricted, see Mozier v. Parsons, 852 F.Supp. 925, 932 (D.Kan.1994), is sufficient to create a jury question as to conscious pain and suffering.
The court notes that in other cases where the courts have found insufficient evidence to go forward with a survival claim, the decedents had died from injuries sustained in automobile accidents. E.g., St. Clair, 245 Kan. at 415, 781 P.2d 1043; Cochrane v. Schneider Nat'l Carriers, Inc., 968 F.Supp. 613, 614 (D.Kan.1997). In such cases, there is a traumatic impact which can reasonably be expected to cause loss of consciousness at the time of the impact, before any suffering occurs. Therefore, it is impossible to determine without speculation, at what time the decedent lost consciousness. In the case of suffocation, or drowning as involved in Mozier, 852 F.Supp. at 927, there typically is no such traumatic impact. Unless the victim has fainted or has been knocked unconscious first, the victim typically loses consciousness only after a period, however brief, of struggling to breathe. In this case, according to Dr. Gould, Garay was actively inhaling foreign material into his respiratory tract. She found no evidence, and there is none elsewhere in the record, *902 of any trauma or medical problem which would have caused Garay to lose consciousness before his struggle to breathe. It would be reasonable to infer in this case, then, without resorting so speculation, that Garay experienced some degree of conscious pain and suffering before he died. Summary judgment is therefore denied as to this issue.
IV. Conclusion.
Defendant FMC's motion for summary judgment (Doc. 73) is hereby granted in part and denied in part as set forth above.
Defendant Union Pacific Railroad Company and Missouri Pacific Railroad Company's motion for summary judgment (Doc. 75) is hereby granted in part and denied in part as set forth above.
NOTES
[1] The court notes there are some conflicts in the deposition testimony of Garay's co-workers concerning the sequence of events. In view of the standards governing a motion for summary judgment, the court resolves any such conflicts, as well as any reasonable inferences arising from the evidence, in favor of the plaintiff.
[2] The defendants, relying on Jesus Pondo's deposition testimony, assert that Pondo specifically told Garay "not to be on top of the hopper car because it was dangerous and that he could possibly suffocate and that nobody had any business getting up there." FMC Mem., Exh. F at 81-82. In light of Eliseo Perez' testimony that he saw Garay and Pondo sitting inside the hopper car talking while it was unloading, however, a reasonable jury could conclude that Mr. Pondo did not give Garay any such warning.
[3] Defendants also contend that Garay was aware of the dangers involved because he was allegedly told a story by Perez about a kid dying in a grain elevator. Railroads' Mem. at 6 (citing Exh. 9 at 16). In addition to being immaterial, defendants have not shown that this alleged fact is uncontroverted. Perez testified that he couldn't remember if Garay was there when he told the story. Id. at 16. Nor does the deposition testimony of Montoya, which is also cited by the railroads to support the assertion, show beyond dispute that Garay heard the story. Id., Exh. 8 at 47-48. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334259/ | 443 S.E.2d 354 (1994)
114 N.C. App. 766
Roscoe BLEVINS and wife, Ethel Blevins; James Farrington and wife, Ruby Farrington; Lloyd Graham and wife, Linda Graham; Eura Hart, Widow; Jean B. Key, Single; Robert L. Lewis and wife, Shirley Lewis; Hettie Sapp, Widow; Vaughn Welch and wife, Minnie Welch; and Wayne Williams, Single, Plaintiffs-Appellees,
v.
Alvin "Junior" DENNY; Reggie Testerman; Dana Brown; Sharon Cowan; and Linda Graham, Members of the Board of Aldermen of the Town of Lansing, and The Town of Lansing, Defendants-Appellants.
No. 9323DC629.
Court of Appeals of North Carolina.
May 17, 1994.
Kilby, Hodges & Hurley, by John T. Kilby, and Vannoy & Reeves, by Jimmy D. Reeves, West Jefferson, for plaintiffs-appellees.
Johnston and Johnston, by John C. Johnston, Jefferson, for defendants-appellants.
JOHNSON, Judge.
The Town of Lansing in Ashe County, North Carolina (hereafter, Town) conducted a bond referendum on 17 June 1986 in order to construct a water and sewer system. A week prior to the vote on the bond referendum, by letter dated 9 June 1986 to the town's residents, the Town Clerk/Finance Officer urged support of the bond referendum, stating that the Town had no intention of requiring mandatory water hook-ups to the proposed water and sewer system. The bond referendum passed by an overwhelming majority.
Following the construction of the Town's water and sewer system, the Town Clerk/Finance Officer informed the citizens of the Town that because of the few resident taxpayers located within the Town and the large amount of money necessary to complete the project, mandatory hook-ups were the *355 Town's only option, unless taxes were raised to a prohibitive amount.
On 17 August 1989, the Town passed an ordinance requiring every person owning improved property within the corporate limits to connect to the Town's water and sewer system. An amendment to the ordinance followed, pursuant to North Carolina General Statutes § 160A-175 (Cum.Supp.1993), establishing fines and penalties for violation of the ordinance.
In a separate action to which they counterclaimed, Roscoe and Ethel Blevins were named defendants in an action brought by the Town, requiring that they connect to the Town's water and sewer system or be subject to fines and penalties. The Blevins then joined with other residents who have refused to comply with the Town's ordinance in the lawsuit sub judice against the Town and Town officials. Plaintiff residents in this case asked the court to grant a writ of mandamus requiring defendants to operate the water and sewer system without requiring plaintiff residents to connect to said system; for a permanent injunction preventing defendants from requiring said hook-up; for compensation for plaintiff residents' private wells and septic systems of which they claim they will be deprived; for a survey of the corporate limit; and for damages on the theory of unjust enrichment. Defendants answered, claiming defenses of laches and the statute of limitations among others, and counterclaiming against plaintiff residents for their noncompliance with the Town's ordinance. Plaintiff residents filed a reply to defendants' counterclaim. With plaintiff residents' consent, defendants amended their reply to include the defense of sovereign immunity. Defendant Town made a motion for summary judgment which was denied on 18 May 1993, and defendant Town gave notice of appeal to this Court.
The issue in both this case and a companion case filed simultaneously, Town of Lansing v. Key, No. 9323DC640 (N.C.App. filed 17 May 1994), is the same: did the trial court properly deny defendant Town's motion for summary judgment as a matter of law?
We note that at the trial level, the Town argued their right to appeal this interlocutory order pursuant to Corum v. University of North Carolina, 97 N.C.App. 527, 389 S.E.2d 596, stay allowed, 326 N.C. 595, 394 S.E.2d 453, disc. review and writ allowed and dismissal denied, 327 N.C. 137, 394 S.E.2d 170 (1990), aff'd in part; rev'd in part on other grounds, 330 N.C. 761, 413 S.E.2d 276 (1992). The motion for summary judgment in Corum was based on immunity defenses to a section 1983 claim. In Corum, we stated:
Generally, the denial of summary judgment does not affect a substantial right and is not appealable. (Citations omitted.) In the instant case, however, we hold that the denial of summary judgment affected a substantial right and is subject to review. We reach this conclusion in light of the holding of the United States Supreme Court in Mitchell v. Forsyth, 472 U.S. 511 [105 S. Ct. 2806], 86 L. Ed. 2d 411 (1985), a case in which the defendant federal official's summary judgment motions, on the grounds of absolute and qualified immunity, had been denied in District Court. In Mitchell, the Supreme Court held that "denial of a substantial claim of absolute immunity is an order appealable before final judgment, for the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action." 472 U.S. at 525 [105 S.Ct. at 2815], 86 L.Ed.2d at 424 (citations omitted). Similarly, the Court concluded that denial of a public official's claim of qualified immunity from suit, to the extent that it turns on the legal questions of whether the conduct complained of violated "clearly established law" ... is also appealable as a "final decision" within the meaning of 28 U.S.C. sec. 1291.
Corum, 97 N.C.App. at 531, 389 S.E.2d at 598. In Mitchell, the United States Supreme Court went on to explain that
entitlement [to qualified immunity] is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial....
An appealable interlocutory decision must satisfy two additional criteria: it *356 must "conclusively determine the disputed question," Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 [2458] (1978), and that question must involve a "clai[m] of right separable from, and collateral to, rights asserted in the action," [Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 93 L. Ed. 1528, 69 S. Ct. 1221, 1225-26 (1949).] The denial of a defendant's motion for dismissal or summary judgment on the ground of qualified immunity easily meets these requirements.
Corum, 97 N.C.App. at 531-32, 389 S.E.2d at 598, quoting Mitchell, 472 U.S. at 526-27, 105 S.Ct. at 2816, 86 L.Ed.2d at 425-26. (Emphasis retained.) We find the denial of the Town's summary judgment motion in the instant case immediately appealable.
Upon examination of the evidence in this case, we find that defendant Town was performing a governmental function when it passed the ordinance mandating connection to the water and sewer system, and that therefore, the Town is immune from tort liability. (See Rhyne v. Mount Holly, 251 N.C. 521, 112 S.E.2d 40 (1960) for a list of situations in which municipalities have been held immune by reason of being engaged in governmental functions.) In support of our holding, we cite McNeill v. Harnett County, 327 N.C. 552, 572, 398 S.E.2d 475, 486 (1990), where the North Carolina Environmental Management Commission found unsanitary conditions and gave the Buies Creek-Coats Water and Sewer District permission to proceed to construct a sewer system to serve the district, and our Supreme Court held that "the ordinances mandating connection to the county-operated sewer system, and the payment of connection charges and monthly user fees for the sewer service are valid exercises of the police power[.]" See North Carolina General Statutes § 160A-317 (1993), entitled "Power to require connections to water or sewer service and the use of solid waste collection services," which authorizes municipalities to require citizens to either connect to a water or sewer line, or, to avoid hardship, to pay a periodic availability charge. (See also McCombs v. City of Asheboro, 6 N.C.App. 234, 240, 170 S.E.2d 169, 173 (1969), where our Court said "construction of a sewerage system is a governmental function[.]")
A reading of the letter sent by the Town Clerk/Finance Officer to the citizens of Lansing indicates that "50% of the homes or businesses surveyed [by the Ashe County Health Department in 1985] had illegal discharge of sewage, [and that] 10% of existing septic tanks were not functioning[.]" The letter continues:
The study clearly indicates that the sewage disposal problems in Lansing are widespread and serious and are posing a definite threat to our health and well-being....
The officials of the Ashe County Health Department are coming under increased pressure from Raleigh and elsewhere to do something about Lansing's violators of State health laws.
The letter further indicates the efforts made by the Lansing town officials to secure grant monies and a FmHA loan to go toward the costs of the new water and sewer system. Although there was no evidence to indicate that the purchase of the new water and sewer system at the time of the bond referendum was mandatory, it appears it was inevitable. Therefore, we find the ordinance mandating connection to the water and sewer system a valid exercise of the Town's police power and find that the Town cannot be estopped from requiring said connection.
Additionally, we note that actions asserting a "taking" are to be "initiated within 24 months of the date of the taking of the affected property or the completion of the project involving the taking, whichever shall occur later." North Carolina General Statutes § 40A-51(a)(1984).
Reversed and remanded for judgment to be entered in favor of defendant Town.
GREENE and JOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334297/ | 260 S.E.2d 456 (1979)
Daniel Eugene MAY
v.
Timothy Charles LEACH.
Record No. 780124.
Supreme Court of Virginia.
November 21, 1979.
Robert R. Hatten, Newport News (Patten & Wornom, Newport News, on brief), for appellant.
M. Stuart Bateman (Bateman, Downing, Redding & Conway, P. C., Newport News, on brief), for appellee.
Before CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
PER CURIAM.
In this personal injury case, the jury returned a verdict in favor of the plaintiff, Daniel Eugene May, against the defendant, Timothy Charles Leach, in the sum of $1323.76. Contending that the verdict is inadequate, the plaintiff seeks reversal and a new trial on the issue of damages.
On February 1, 1977, an automobile operated by the plaintiff and a vehicle driven by the defendant collided at the intersection of Mercury Boulevard and Orcutt Avenue in the city of Hampton. At the scene, the plaintiff made no complaint of injury. Later in the day, however, he experienced pain in his lower back. When the pain continued the next day, he visited a physician. Upon examination, the doctor found "muscle spasm over [the plaintiff's] lower spine and . . . some stiffness" and "tenderness." The doctor prescribed a muscle relaxant, medication for sleep, and the wearing of an elastic back support.
The doctor saw the plaintiff a total of eleven times and discharged him on March 7, 1977. During this period of treatment, the plaintiff remained away from work. After returning to work, he had occasional "flare-ups" with his back. The doctor testified that these "flare-ups" could "last as long as a year or even as much as 18 months." The plaintiff was never hospitalized and, although he changed jobs because of his back trouble, he earned more money in his new assignment.
The plaintiff proved special damages as follows:
$ 217.34 medical expenses
716.72 loss of earnings
390.00 property damage
________
$1324.06 total.
The plaintiff correctly points out that the amount of the verdict, $1323.76, is thirty cents less than the total of the special damages he proved. Therefore, the plaintiff asserts, the jury failed to award any compensation for pain and suffering and the other items of damages it was instructed to consider. The jury's action shows misconduct on its part, the plaintiff says, and establishes inadequacy as a matter of law, thus entitling him to a new trial limited to the issue of damages.
The plaintiff relies upon our decision in Rome v. Kelly Springfield, 217 Va. 943, 234 *457 S.E.2d 277 (1977). There, in a breach of warranty action for personal injuries, the jury returned a verdict in favor of the plaintiff for $79,918.52, the exact amount of his lost earnings and medical expenses as shown by the uncontroverted evidence. The trial court set aside the verdict. We reversed and ordered a new trial on all issues. On the question of damages, we said that the verdict was inadequate and invalid as a matter of law because in light of the undisputed evidence as to special damages and the substantial evidence of the plaintiff's injuries, the verdict demonstrated that the jury had failed to take into consideration all the proper elements of damages to which the plaintiff was entitled.
The present case differs distinctly from Rome because this record not only lacks substantial evidence of the plaintiff's injuries but it also raises serious questions concerning the time lost from work and the amount spent for medical expenses. In our opinion, Brown v. Huddleston, 213 Va. 146, 191 S.E.2d 234 (1972), is more directly on point. There, the plaintiff, injured in an automobile accident, complained of pain in her shoulder, neck, chest, back, and right hip and leg. Her physician saw her three times, prescribed medicine for pain, and then referred her to another doctor. The second physician saw the plaintiff 33 times. He prescribed muscle relaxants, pills for pain, and the wearing of neck and back supports. He predicted that his patient's difficulty would continue for another two or three years.
The plaintiff in Brown claimed special damages of $6420. The jury returned a verdict for the plaintiff in the sum of $1500. She sought a new trial on the ground that the verdict was inadequate. Affirming the trial court's approval of the verdict, we said:
"From the evidence, the jury was entitled to find that the plaintiff had not been injured as seriously as she claimed. The jury was also justified in believing that only a portion of the special damages was reasonably related to the accident. This being so, the verdict cannot be disturbed on the ground that it was inadequate." 213 Va. at 147, 191 S.E.2d at 235.
This same rationale applies with equal force here. Accordingly, the judgment of the trial court will be affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334281/ | 443 S.E.2d 784 (1994)
APPLIANCE SALES & SERVICE, INC., Plaintiff,
v.
COMMAND ELECTRONICS CORPORATION and Issac Shephard Funderburk, III and All Other Officers, Directors and Stockholders of Command Electronics Corporation, Defendants.
No. 939SC551.
Court of Appeals of North Carolina.
June 7, 1994.
*788 Zollicoffer & Long by John H. Zollicoffer, Jr., Henderson, for plaintiff-appellee.
Bobby W. Rogers, Henderson, for defendants-appellants.
EAGLES, Judge.
Defendants argue that the trial court erred in denying their motion to dismiss "pursuant to the forum selection clause of the contract." We disagree.
I.
In Perkins v. CCH Computax, Inc., 333 N.C. 140, 141, 423 S.E.2d 780, 781 (1992), our Supreme Court upheld the validity of a forum selection clause contained in a commercial contract to purchase software entered into between a North Carolina certified public accountant and a California-based software company. In Perkins, our Supreme Court stated:
Recognizing the validity and enforceability of forum selection clauses in North Carolina is consistent with the North Carolina rule that recognizes the validity and enforceability of choice of law and consent to jurisdiction provisions. Johnston County v. R.N. Rouse & Co., 331 N.C. 88, 414 S.E.2d 30. For the foregoing reasons, we embrace the modern view and hold that forum selection clauses are valid in North Carolina. A plaintiff who executes a contract that designates a particular forum for the resolution of disputes and then files suit in another forum seeking to avoid enforcement of a forum selection clause carries a heavy burden and must demonstrate that the clause was the product of fraud or unequal bargaining power or that enforcement of the clause would be unfair or unreasonable. The dissent argues that this Court's decision in this case "place[s] tens of thousands of our citizens at the mercy of those who will take advantage of them by the use of forum selection clauses." We disagree. Under our decision, the trial court retains the authority to hear the case when it determines that the forum selection clause was the product of fraud or unequal bargaining power or that the clause would be unfair or unreasonable.
333 N.C. at 146, 423 S.E.2d at 784. After Perkins, in Bell Atlantic Tricon Leasing Corp. v. Johnnie's Garbage Serv., 113 N.C.App. 476, 439 S.E.2d 221 (1994), this Court analyzed a consent to jurisdiction clause in a standardized lease agreement purporting to bind a North Carolina corporation to litigate in a New Jersey trial court. Id. at 479, 439 S.E.2d at 224. There, in determining whether the agreement was unfair or unreasonable, this Court examined the "circumstances surrounding the defendant's signing of the lease agreement" and stated:
When he [the North Carolina corporation's president] signed the lease agreement, defendant was a 79-year-old man who ran a small family business. There was no bargaining *789 over the terms of the contract between the parties, who were far from equal in bargaining power. The lease agreement itself was a one page pre-printed form with type on the front and back. The forum selection and consent to jurisdiction provisions were on the back side of the paper, where there was no place for defendant to sign or initial. The provisions were in fine print under a paragraph labeled "Miscellaneous," and were never called to defendant's attention or explained to him. Plaintiff made no showing whatsoever that defendant was actually aware or made aware of the significance of the consent to jurisdiction clause.
Considering all of these factors, we find that defendant did not knowingly and intelligently consent to the jurisdiction of the New Jersey courts. Therefore, enforcement of this provision would be both unfair and unreasonable.
Id. at 480-81, 439 S.E.2d at 224-25.
Here, the trial court, after reviewing "the totality of the circumstances reflected in the court files," found that the enforcement of the forum selection clause "would be unfair and unreasonable." Neither Perkins, nor any subsequent reported decision of the North Carolina appellate courts that we have discovered, has explicitly stated the standard of appellate review for orders assessing the enforceability of forum selection clauses. We note that the federal circuits are divided between the abuse of discretion standard, see Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 280 n. 4 (9th Cir.1984); Sun World Lines, Ltd. v. March Shipping Corp., 801 F.2d 1066, 1068 n. 3 (8th Cir.1986); and the de novo standard of review, see Hugel v. Corporation of Lloyd's, 999 F.2d 206, 207 (7th Cir.1993); Lambert v. Kysar, 983 F.2d 1110, 1112 (1st Cir.1993); Riley v. Kingsley Underwriting Agencies, Ltd., 969 F.2d 953, 956 (10th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 658, 121 L. Ed. 2d 584 (1992); Instrumentation Assocs., Inc. v. Madsen Electronics (Canada) Ltd., 859 F.2d 4, 5 (3d Cir.1988). Given that the disposition of each case is highly fact-specific, we conclude that the abuse of discretion standard is the more appropriate standard. See State v. Locklear, 331 N.C. 239, 248, 415 S.E.2d 726, 732 (1992) ("The abuse of discretion standard of review is applied to situations, such as this, which require the exercise of judgment on the part of the trial court. The test for abuse of discretion requires the reviewing court to determine whether a decision `is manifestly unsupported by reason,' or `so arbitrary that it could not have been the result of a reasoned decision.' Little v. Penn Ventilator, Inc., 317 N.C. 206, 218, 345 S.E.2d 204, 212 (1986)"); Greenwood v. Tillamook Country Smoker, Inc., 857 S.W.2d 654, 656 (Tex.App.1993); Personalized Marketing Service, Inc. v. Stotler & Co., 447 N.W.2d 447, 450 (Minn.App. 1989), review denied (12 January 1990). Cf. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 7, 92 S. Ct. 1907, 1911-1912, 32 L. Ed. 2d 513, 519 (1972) (abuse of discretion standard applicable to forum non conveniens determination). However, we note that the trial court's order here would also be affirmed under the de novo standard of review.
II.
We now address whether the trial court abused its discretion by declining to enforce the contract's forum selection clause which provided:
9. Place of Execution: The parties hereto agree that this Agreement shall be deemed to have been executed in the State of South Carolina, and that the laws of said State shall govern any interpretation or construction of this Agreement. In the event of a disagreement between the parties, the Courts in Charleston County, South Carolina shall have exclusive jurisdiction and venue and the Company shall be entitled to reasonable attorney fees and collection costs.
In Johnston County v. R.N. Rouse & Co., 331 N.C. 88, 92-93, 414 S.E.2d 30, 33 (1992), our Supreme Court stated:
Historically, parties have endeavored to avoid potential litigation concerning judicial jurisdiction and the governing law by including in their contracts provisions concerning these matters. Although the language used may differ from one contract to another, one or more of three types of *790 provisions (choice of law, consent to jurisdiction, and forum selection), which have very distinct purposes, may often be found in the boilerplate language of a contract. The first type, the choice of law provision, names a particular state and provides that the substantive laws of that jurisdiction will be used to determine the validity and construction of the contract, regardless of any conflicts between the laws of the named state and the state in which the case is litigated. The second type, the consent to jurisdiction provision, concerns the submission of a party or parties to a named court or state for the exercise of personal jurisdiction over the party or parties consenting thereto. By consenting to the jurisdiction of a particular court or state, the contracting party authorizes that court or state to act against him. A third type, a true forum selection provision, goes one step further than a consent to jurisdiction provision. A forum selection provision designates a particular state or court as the jurisdiction in which the parties will litigate disputes arising out of the contract and their contractual relationship....
Due to the varying language used by parties drafting these clauses and the tendency to combine such clauses in one contractual provision, the courts have often confused the different types of clauses. One commentator recognizing this confusion has offered the following guidance:
A typical forum-selection clause might read: "[B]oth parties agree that only the New York Courts shall have jurisdiction over this contract and any controversies arising out of this contract." ...
A ... "consent to jurisdiction" clause[] merely specifies a court empowered to hear the litigation, in effect waiving any objection to personal jurisdiction or venue. Such a clause might provide: "[T]he parties submit to the jurisdiction of the courts of New York." Such a clause is "permissive" since it allows the parties to air any dispute in that court, without requiring them to do so.
... A typical choice-of-law provision provides: "This agreement shall be governed by, and construed in accordance with, the law of the State of New York."
(Citations omitted.)
Reviewing the contractual provisions at issue here, the language, "[t]he parties hereto agree that this Agreement shall be deemed to have been executed in the State of South Carolina, and that the laws of said State shall govern any interpretation or construction of this Agreement," is a choice of law provision. Id. The second sentence, "[i]n the event of a disagreement between the parties, the Courts in Charleston County, South Carolina shall have exclusive jurisdiction and venue ..." is a forum selection clause. Id.
III.
Here, we cannot say that the trial court's refusal to enforce the forum selection clause is without a rational basis in the facts. The evidence shows that defendants made at least two prior representations to the effect that if plaintiff sought a remedy, plaintiff could sue defendants in the courts of North Carolina. In response to plaintiff's second set of interrogatories, defendants admitted that a "complaint or accusation" had been made against them to the North Carolina Attorney General. One representation was made to the Office of the Attorney General, as noted in John H. Zollicoffer, Jr.'s (plaintiff's counsel's) uncontradicted affidavit which provides in pertinent part as follows:
That the matters raised in the complaint were brought to the attention of the Consumer Protection Division of the Office of the Attorney General of the State of North Carolina. That in its attempt to keep the Attorney General of the State of North Carolina from taking any action on the same, [defendant] Shep Funderburk (Issac Shephard Funderburk, III) wrote a letter on behalf of Command Electronics Corporation dated July 9, 1991 to John H. Zollicoffer, Jr., Attorney for Plaintiff, and further wrote another letter dated July 9, 1991 to the Office of the Attorney General, Consumer Protection Division.
That in the letter to John H. Zollicoffer, Jr., Shep Funderburk stated that:
*791 ".... indeed you have available a civil court system in the great [S]tate of North Carolina to your client if indeed your client feels that they were injured in their dealings with Command Electronics Corporation."
In the letter to the North Carolina Attorney General on the same day, Shep Funderburk stated on behalf of Command Electronics Corporation:
"If Appliance Sales & Service and Command Electronics Corporation can't work out their differences, then their attorney has the civil court of North Carolina available to him to file suit."
(Emphasis in original.) Given defendants' prior inconsistent conduct in their communications with plaintiff and the Attorney General, we conclude that the trial court could have found inter alia that defendants are estopped from asserting the forum selection clause as a defense to the filing of the action in North Carolina. We conclude that plaintiff has met its "heavy burden." Perkins, 333 N.C. at 146, 423 S.E.2d at 784. From the record, it is clear that the trial court did not abuse its discretion in refusing to enforce the terms of the forum selection clause.
IV.
For the reasons stated, the trial court's 8 February 1993 order is affirmed.
Affirmed.
MARTIN and McCRODDEN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334350/ | 273 S.C. 780 (1979)
260 S.E.2d 177
In the Matter of John Wilkins NORWOOD, III, Respondent.
21078
Supreme Court of South Carolina.
November 7, 1979.
Attorney Gen., Daniel R. McLeod and Asst. Atty. Gen., Richard B. Kale, Jr., Columbia, for complainant.
Robert N. Daniel, Jr., Greenville, for respondent.
November 7, 1979.
Per Curiam:
This disciplinary action against respondent Norwood resulted from his wilful act in violation of an order of the Family Court in a divorce proceeding brought by his wife. We agree with the Panel & Executive Committee that respondent is guilty of misconduct adversely reflecting on his fitness to practice law and we adopt the Executive Committee's unanimous recommendation of a public reprimand.
Respondent was ordered by the Family Court to make certain payments and refrain from removing certain personal property from the marital residence. We need not consider respondent's failure to make the payments as it is established he removed furnishings and other property from the residence.
A decree was entered adjudging respondent in contempt of court. Rather than attempt to either comply with or purge himself of the contempt decree, respondent fled the State.
*781 The decision In re Mixson, 258 S.C. 408, 189 S.E. (2d) 12 (1972), is distinguishable. Mixson was charged only with failing to pay alimony and attorneys' fees. Respondent, on the other hand, went beyond that and actively removed property from a marital residence in violation of the court order.
We regard as most serious respondent's wilful and unprofessional behavior in defying the order of the Family Court. It is required that all members of the bar adhere to the ethical standards of the Code of Professional Responsibility. As an officer of the court, no lawyer may disregard a court order. DR7-106 (A); In re Clostermann, 276 Or. 261, 554 P. (2d) 467 (1976); Joyce v. Dell, 348 U.S. 883, 75 S. Ct. 124, 99 L. Ed. 694 (1954). Respondent has been found to have violated these directives, and is hereby publicly reprimanded for his misconduct.
GREGORY, J., concurs and dissents.
GREGORY, Justice (concurring in part and dissenting in part):
Respondent's behavior as a defendant in a contested divorce action prompted this disciplinary proceeding.
I agree with the majority opinion that removal of furnishing from the marital residence in violation of a court order and the subsequent failure to purge himself of this contempt evidences and supports a finding of misconduct.
Since respondent was not actively engaged in the practice of law,[1] plus the personal involvement in the divorce proceedings, I differ with the sanction ordered by the majority opinion.
In my view a private reprimand would suffice and is the more appropriate disciplinary sanction to be imposed against the respondent.
NOTES
[1] Respondent had been employed as agent for a title insurance company. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334358/ | 260 S.E.2d 850 (1979)
STATE ex rel. Darrell L. LEMLEY
v.
Virginia L. ROBERTS, Commissioner, etc.
No. 14295.
Supreme Court of Appeals of West Virginia.
December 18, 1979.
*851 William L. Jacobs, Parkersburg, for appellant.
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Charleston, for appellee.
PER CURIAM:
This appeal was docketed on October 2, 1978 and came on for final argument on November 20, 1979. It is an appeal from a final judgment of the Circuit Court of Kanawha County which dismissed appellant's petition for a writ of mandamus. The petition sought a rule compelling the Commissioner of Motor Vehicles to show cause why appellant's operator's license, which had been revoked under the provisions of W.Va. Code, 17C-5-2(c), should not be reinstated. Without taking evidence the circuit court dismissed the petition with prejudice. We conclude the circuit court acted incorrectly.
On December 8, 1977, the Commissioner of Motor Vehicles revoked the appellant's operator's license for a period of ten years. The revocation was based on the provisions of W.Va. Code, 17C-5-2(c) which require the Commissioner to revoke a license if the records disclose two convictions within five years for driving under the influence of intoxicating liquor. The Motor Vehicle Department's records indicated the appellant was convicted of driving while under the influence of intoxicating liquor on March 6, 1973 in Cooper City, Florida, and on November 22, 1977 in Jackson County, West Virginia.
In his petition for a writ of mandamus appellant alleged the Cooper City conviction was void by reason of the fact that he was not represented by counsel, not informed of *852 his right to counsel, and did not waive that right. Therefore, he asserted the Jackson County offense was a first offense, the six-month revocation period for one offense had expired, and he was entitled to have his operator's license reinstated.
In denying the relief prayed for the circuit court stated in a letter of opinion that the petition was being dismissed because appellant had another adequate remedy; i. e. to proceed under the provisions of W.Va. Code, 17B-3-6 which provide that a party whose license is revoked may request a hearing before the Commissioner of Motor Vehicles.
The trial court's dismissal was improper in light of our prior case of State ex rel. Vance v. Arthur, 142 W.Va. 737, 98 S.E.2d 418 (1957) in which we held under substantially similar circumstances that the Commissioner of Motor Vehicles is an administrative official not capable of performing the judicial function of determining the validity of judgments and therefore can take no action to set aside the revocation of a license until the judgment complained of has been judicially declared void in a proceeding to which the Commissioner is a party. Arthur makes it clear that W.Va. Code, 17B-3-6 provides no adequate remedy for the appellant, and accordingly the trial court was incorrect in dismissing the petition for this reason.
"Though the writ of mandamus will be denied where another and sufficient remedy exists, if such other remedy is not equally as beneficial, convenient and effective, mandamus will lie." Syl. pt. 5, Arthur, supra.
Arthur was an original mandamus proceeding before this Court in which the petitioner sought to compel the Commissioner of Motor Vehicles to reinstate his operator's license which had been revoked for two convictions for driving under the influence of intoxicating liquor. He contended the convictions were void because they had been initiated in a justice of the peace court without warrants. In granting the relief sought, this Court went on to reiterate two well established rules of law:
"A void judgment, being a nullity, may be attacked, collaterally or directly, at any time and in any court whenever any claim or right is asserted under such judgment." Syl. pt. 3, Arthur, supra.
"A void judgment is subject to collateral attack in a proceeding in mandamus." Syl. pt. 4, Arthur, supra.
Because the sanctions which may be imposed by the Department of Motor Vehicles on a person convicted of driving while under the influence of intoxicating liquor are increased if he has a prior conviction within the statutorily specified time a collateral attack may be made on the prior or subsequent conviction on constitutional grounds. Gonzales v. Municipal Court, 32 Cal. App. 3d 706, 108 Cal. Rptr. 612 (1973); Thomas v. Department of Motor Vehicles, 3 Cal. 3d 335, 90 Cal. Rptr. 586, 475 P.2d 858 (1970). This principle applies even if the prior conviction was in another state. Cf. DeRasmo v. Smith, 15 Cal. App. 3d 601, 93 Cal. Rptr. 289 (1971).
For the foregoing reasons, we reverse the final judgment entered below and remand the case with directions that the appellant be given the opportunity to prove his allegations relative to the voidness of the Cooper City, Florida conviction.
Reversed and remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334355/ | 260 S.E.2d 844 (1979)
Virgil ZINN
v.
Della W. ZINN.
No. 14186.
Supreme Court of Appeals of West Virginia.
December 18, 1979.
*845 Lucien R. Sammons, Jr., West Union, for appellant.
David G. Hanlon, Harrisville, Leo Catsonis, Charleston, for appellee.
PER CURIAM:
Della W. Zinn, the appellant in this appeal from a final decree entered in a divorce proceeding, contends that the trial court erred in failing to award her alimony. We agree.
On April 28, 1975, Virgil Zinn sued the appellant, his wife, for divorce. The appellant answered and counterclaimed. In her counterclaim she prayed that the court order the plaintiff to pay her temporary and permanent alimony for her support and maintenance.
An extensive hearing was held in the matter on October 16, 1975. At that hearing the appellant introduced evidence tending to show that her husband had become involved in an adulterous relationship with another woman. At the time of the hearing the appellant was fifty-four years old; she had been married to her husband for twenty years. Prior to the hearing she had been employed in a garment factory in Pennsboro where she earned $2.10 per hour. Other than a one-half undivided interest in the couple's farm, the appellant owned no estate capable of producing income independent of her labor. Prior to the hearing she had experienced a reduction in income because of a part-time lay-off at the garment factor. At the time of the hearing, she was suffering from high blood pressure and skin cancer.
The appellant's husband, Virgil Zinn, was a farmer who worked part time for the Ritchie County Board of Education as a bus driver. He also worked at a Pure Oil Station, and he earned additional money by serving as a lay veterinarian in his community. He owned a house which he rented for $55.00 per month, and he received small sums in the form of oil and gas royalties. Although the record is not clear as to exactly how much Virgil Zinn earned per year, it does indicate that he had approximately $7,700 per year, non-farm income.
*846 On December 31, 1976, the Judge of the Circuit Court of Ritchie County entered an order in the case. In that order the court, having found that Virgil Zinn was guilty of adultery, awarded the appellant a divorce. The court also awarded the appellant custody of the couple's seventeen-year-old child and directed that Virgil Zinn pay $75.00 per month child support until the child reached eighteen. With regard to alimony, the court said ". . . the Defendant is able to work and therefore the Court will not make any award for alimony to the Defendant for that reason."
In early cases we held that the marriage contract imposes upon the husband the obligation to support and maintain his wife and the offspring of the marriage. See, e. g. Norman v. Norman, 88 W.Va. 640, 107 S.E. 407 (1921); Kittle V. Kittle, 86 W.Va. 46, 102 S.E. 799 (1920). In Norman we said:
"The fact that the wife has a small amount of property in no way affects her right to compel her husband to support and maintain her and their infant child given to her custody. She is not compelled to make good his obligation out of her estate, but is entitled to receive from him sufficient sums to support and maintain her . . . in the station in life to which they belong, considering, of course, the capacity of the husband to earn money, and the income which he has from any property he may own." Norman v. Norman, 88 W.Va. 640, 645, 107 S.E. 407, 410 (1921)
Judge Haymond in State ex rel. Cecil v. Knapp, 143 W.Va. 896, 105 S.E.2d 569, 574-576 (1958) made an extensive survey of the law surrounding the wife's right to receive an award of permanent alimony once she is granted a divorce based on traditional fault grounds. W.Va.Code, 48-2-16 provides certain standards which should be taken into consideration in determining alimony:
"All judges and courts of this State, called upon to fix, ascertain and determine an amount of alimony, . . . to be paid by a spouse . . . shall take into consideration, among other things, the financial needs of the parties, the earnings and earning ability of the husband and wife, the estate, real and personal, and the extent thereof as well as the income derived therefrom of both the husband and wife and shall allow, or deny, alimony or maintenance or modify any former order with relation thereto, in accordance with the principles of justice." W.Va.Code, 48-2-16.
This statute which was enacted in 1933 clarified the fact that in determining the amount of alimony to be awarded to a fault-free wife, consideration could be given to the independent income of both parties. Sutherland v. Sutherland, 120 W.Va. 359, 198 S.E. 140 (1938). However, it cannot be doubted from Kittle, Norman and their progeny that where the wife receives the divorce based on proof of a fault ground against her husband and she has no independent income or only a meager income when compared with her husband she is entitled to some award of alimony.
Although we recognize that while the law vests wide discretion in the trial court to determine the amount of alimony to be paid, Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959), the trial court's discretion in making the legal determination of the right to obtain some amount of alimony by a wife who obtains a divorce against her husband on fault grounds is more narrowly viewed. See, Kittle v. Kittle, supra; Norman v. Norman, supra.
A further factor supporting this rule is the principle set out in Savage v. Savage, W.Va., 203 S.E.2d 151 (1974), that where no award for alimony is made for a wife who obtains a fault-based divorce against her husband, she cannot subsequently have the decree modified to obtain alimony.
Although we do not deem it appropriate to establish detailed standards for a trial court's exercise of discretion in awarding alimony, we note that W.Va.Code, 48-2-16 requires by its terms that a court consider the financial needs of the parties, their incomes and income earning abilities, and their estates and the income produced by their estates in determining whether to allow or deny alimony.
The trial court in the case before us, in an opinion filed on December 21, 1976, found, "that the defendant is able to work" but *847 made no reference to her actual needs, or her prospective earning abilities in view of her health. The trial judge, although he referred to the property of the parties, made no reference to the income produced by that property.
It is clear from the record that the appellant's income at the time of the divorce was considerably less than that of her husband even when she was able to work. She possessed no estate which was self-productive of income. She suffered from diseases which impaired her ability to work. On the other hand, the appellant's husband was in apparent good health and had a moderate income in addition to a small income-producing estate.
Under the circumstances of this case, the wife was legally entitled to some award of alimony and the trial judge abused his discretion in this regard. The amount of alimony should be determined under factors set forth in W.Va.Code, 48-2-16.
The judgment of the Circuit Court of Ritchie County, insofar as it awards the appellant no alimony, is accordingly reversed, and this case is remanded with directions that the circuit court award the appellant the alimony to which she is entitled.
Reversed and remanded with directions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724962/ | 289 So. 2d 875 (1974)
Verley FREEMAN and Tana Mae Freeman, Plaintiffs-Appellants,
v.
LIBERTY MUTUAL INSURANCE COMPANY and Murphy Clophus, Defendants-Appellees.
No. 4436.
Court of Appeal of Louisiana, Third Circuit.
February 5, 1974.
Shelton & Cline by James M. Miller, Jr., Rayne, for plaintiffs-appellants.
Hall, Raggio & Farrar by Reginald W. Farrar, Jr., Lake Charles, for defendants-appellees.
Before FRUGÉ, CULPEPPER, and DOMENGEAUX, JJ.
PER CURIAM.
This is a suit for damages resulting from an automobile collision. Plaintiff, Tana Mae Freeman, has appealed the judgment rendered on June 1, 1973. A devolutive appeal was granted on September 4, 1973. The appeal was conditioned upon the furnishing of bond in the amount of $800. A cash bond was filed on September 7, 1973, with the Clerk of Court for the Parish of Jefferson Davis.
We dismiss the appeal ex proprio motu as we are of the opinion that it has not been properly perfected. The relevant facts of the case at hand show that an amended judgment was granted on June 1, 1973. June 1, 1973, was a Friday, therefore, the three day delay for applying for a new trial did not commence to run until the following Monday and expired on Wednesday, June 6, 1973. The order of appeal was granted on September 4, 1973, the 90th day after the expiration of the delay for applying for a new trial.
Louisiana Code of Civil Procedure Article 2087 provides the delay for taking a devolutive appeal. It provides in pertinent part:
"... an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, within ninety days: ..." (Emphasis ours). As Amended Acts 1962, No. 92, § 1.
Article 2088 of the Louisiana Code of Civil Procedure provides:
"The jurisdiction of the trial court over all matters in the case reviewable under *876 the appeal is divested, and that of the appellate court attaches, on the timely filing of the appeal bond, or if no bond is required, on the granting of the order of appeal." (Emphasis ours). As amended by Acts 1964, No. 4, § 1, Acts 1968, No. 128, § 1.
The cash bond was not filed until September 7, 1973. The failure to timely file the appeal bond is jurisdictional. An appellate court does not acquire jurisdiction unless the bond is filed within the time prescribed. Article 2088, Louisiana Code of Civil Procedure; Pan American Petroleum Corporation v. Cocreham, 251 La. 705, 206 So. 2d 79 (1968) and cases cited therein.
Accordingly, the appeal is dismissed at appellant's costs.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263384/ | 893 A.2d 995 (2006)
2006 ME 25
Carol DEPOT
v.
David DEPOT.
Supreme Judicial Court of Maine.
Argued: June 14, 2005.
Decided: March 29, 2006.
*996 Justin W. Leary (orally), Sharon, Leary & DeTroy, Auburn, for plaintiff.
E. Chris L'Hommedieu (orally), L'Hommedieu Law Office, P.A., Lewiston, for defendant.
Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and LEVY, JJ.[*]
*997 Majority: SAUFLEY, C.J., and CLIFFORD, ALEXANDER, and LEVY, JJ.
Dissenting: DANA, and CALKINS, JJ.
LEVY, J.
[¶ 1] David Depot appeals from a divorce judgment entered in the District Court (Lewiston, Lawrence, J.) contending that the court erred when it awarded Carol Depot marital property to offset a portion of an accountant's estimate of the present value of David's expected Social Security benefits. Because we agree, we vacate the judgment.
I. BACKGROUND
[¶ 2] Carol Depot filed for divorce after thirty-three years of marriage. At the time of the divorce, she was fifty-five years old and David Depot was fifty-seven. The court entered a detailed divorce judgment with extensive findings of fact and legal analysis. In identifying the parties' marital property, the court explicitly included the present value of the parties' expected Social Security benefits[1] and attempted to accomplish an equal division of the parties' retirement related assets in its overall distribution of the marital property:
Carol David
Social Security benefits $116,976 $255,382
Maine State Retirement System
benefits 67,623
Carol's IRA (Auburn Savings
and Loan) 4,047
David's IRA (Fidelity) 85,868 19,132
___________________________________
$274,514 $274,514
====================================
[¶ 3] The court awarded Carol almost eighty-two percent ($85,868) of David's Fidelity IRA account to balance the perceived "present value" of all of their existing retirement assets, including Social Security benefits:
The court is considering the value of the Social Security benefits based upon the Law Court decision in Pongonis v. Pongonis, 606 A.2d 1055 (Me.1992) (held that the deferred distribution value of Social Security benefits is a relevant factor to be considered in this division of marital property). Defendant's Social Security benefits have a value significantly greater than the combined value of Plaintiff's IRA account, Social Security benefits and Maine State Retirement Account and this disparity is directly relevant to the determination of the parties' Fidelity IRA account.
The court also awarded Carol general spousal support in the initial amount of $200 a month, increasing to $400 a month until 2007, and then increasing to $600 per month to continue until she dies or remarries, or until David dies or reaches the age of sixty-six. This appeal followed.
II. DISCUSSION
[¶ 4] David argues that Social Security benefits are not marital property and any consideration of anticipated Social Security benefits that impacts the division of marital property amounts to an offset prohibited by Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979). Carol argues that the court committed no error in the manner in which it considered Social Security benefits. Whether Social Security benefits are marital property and whether a court may offset a perceived prospective disparity in Social Security benefits by awarding one spouse a compensating *998 share of other retirement benefits are questions of law that we review de novo. See Spooner v. Spooner, 2004 ME 69, ¶ 7, 850 A.2d 354, 358.
[¶ 5] We address, in turn: (A) whether Social Security benefits may be treated as "property" pursuant to 19-A M.R.S. § 953 (2005); (B) whether other marital property may be used as an offset to compensate one spouse for the anticipated Social Security benefits to be received by the other spouse; and (C) the extent to which anticipated Social Security benefit payments are a relevant factor in the division of marital property.
A. Social Security Benefits are not Marital Property
[¶ 6] Courts that have considered the issue have universally acknowledged that Social Security benefits are not marital property and are not subject to division in divorce actions.[2] Several reasons support this principle. In the Social Security Act, Congress created an extensive and highly regulated benefit scheme, cf. Helvering v. Davis, 301 U.S. 619, 644-45, 57 S.Ct. 904, 81 L.Ed. 1307 (1937), and reserved to itself "[t]he right to alter, amend or repeal any provision of th[e Act]." 42 U.S.C.A. § 1304 (West 2003). Thus, as opposed to divisible property, Social Security benefits are a "form of social insurance" in which beneficiaries have a "noncontractual interest." Flemming v. Nestor, 363 U.S. 603, 609, 610, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). In § 402 of the Social Security Act, Congress enumerated certain benefits to be received by divorced individuals and the circumstances under which a divorced individual may receive a benefit based on his or her former spouse's benefits. See 42 U.S.C.A. § 402(b), (c) (West Supp.2005).
[¶ 7] Of particular importance to this discussion, in § 407(a) of the Act, Congress prohibited a beneficiary from transferring or assigning Social Security benefits to another, and prohibited the use of legal process to reach those benefits:
The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
42 U.S.C.A. § 407(a) (West 2003). Although the Act creates a narrow exception *999 to this rule by allowing for the collection of child and spousal support, 42 U.S.C.A. § 659(a) (West 2003), Congress has specifically excluded any similar payment obligation arising from "any community property settlement, equitable distribution of property, or other division of property between spouses or former spouses." 42 U.S.C.A. § 659(i)(3)(B)(ii) (West 2003).
[¶ 8] Federal law preempts any state law that otherwise authorizes the distribution of these benefits. See Hisquierdo, 439 U.S. at 575-76, 590, 99 S.Ct. 802 (holding Railroad Retirement Act's anti-alienation provision preempted state community property law); see also McCarty v. McCarty, 453 U.S. 210, 232, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) (holding that military retirement pay was separate property because the federal military retirement scheme preempted state property laws). Although Congress has legislatively countermanded the holdings in Hisquierdo and McCarty by making railroad and military retirement benefits subject to community property law, see 45 U.S.C.A. § 231m(b)(2) (West 1986) and 10 U.S.C.A. § 1408(c)(1) (West 1998), Congress has not passed similar legislation with respect to the division of Social Security benefits.
[¶ 9] As the trial court noted in its judgment, we previously addressed whether a trial court may consider a spouse's anticipated Social Security benefits as a relevant factor in arriving at its division of the parties' pensions and other marital assets in Pongonis, 606 A.2d 1055. In Pongonis, the trial court's division of the parties' retirement assets was based in part on its findings regarding the annual income the wife was expected to receive from her Social Security benefits in the future. Id. at 1057-58. The husband, who was not eligible for Social Security benefits because he participated in the State retirement system, was expected to receive annual retirement payments starting at $7800 and increasing to $15,300. Id. The wife was expected to receive $13,475 annually from a combination of Social Security benefits and her employer-sponsored pension plan. Id. at 1058. The trial court did not attribute a lump sum deferred distribution or present value to the anticipated Social Security benefits, and did not treat the benefits as if they were property. Id. We affirmed the trial court's consideration of the wife's anticipated Social Security benefit payments as a relevant factor, and its decision to award the husband's State retirement benefits to him and the wife's private retirement benefits to her. Id. at 1057-58.
[¶ 10] Pongonis does not stand for the proposition that a divorce court may attribute a lump-sum value to Social Security benefits, based on either deferred distribution or present value formulas, and treat the Social Security benefits as marital property. This is in harmony with § 407(a)'s prohibition on transfers and assignments of Social Security benefits. Thus, a Maine court may not assign a lump sum value to Social Security benefits and either transfer or offset those benefits when exercising its authority to divide marital property pursuant to 19-A M.R.S. § 953.
B. Marital Property May not be Used as an Offset to Compensate One Spouse for the Anticipated Social Security Benefits to be Received by the Other Spouse
[¶ 11] Although the United States Supreme Court has not directly addressed the issue of whether a state court may use marital property to offset anticipated Social Security benefits, in Hisquierdo, the Supreme Court addressed a similar question-pertaining to Railroad Retirement benefits. In that case, the Supreme *1000 Court held that (1) a direct division of Railroad Retirement benefits violated the nonassignment provision of the Railroad Retirement Act; and (2) using other assets to balance or offset one spouse's expected Railroad Retirement benefits was tantamount to anticipating and dividing those benefits in violation of the Act. 439 U.S. at 583, 588-90, 99 S.Ct. 802. The Supreme Court expressly analogized Railroad Retirement Act benefits to Social Security benefits. Id. at 575, 99 S.Ct. 802. Accordingly, other courts have applied the Hisquierdo rationale to Social Security benefits, holding that transferring other assets to balance or offset expected Social Security benefits is not permitted. See, e.g., In re Marriage of Crook, 211 Ill.2d 437, 286 Ill.Dec. 141, 813 N.E.2d 198, 202 (2004); Neville v. Neville, 99 Ohio St.3d 275, 791 N.E.2d 434, 436 (2003). Because we conclude that Congress intended to preempt state law as applied to Social Security benefits, we adopt that holding.
[¶ 12] In this case, the trial court attributed lump sum values to Carol's and David's expected Social Security benefits and divided David's Fidelity IRA in order to offset the greater value it attributed to David's Social Security benefits. Pursuant to Hisquierdo, the court's valuation and allocation of the parties' anticipated Social Security benefits runs afoul of § 407(a)'s prohibition on the transfer or assignment of such benefits because it constitutes an offsetting of those benefits. Accordingly, we vacate the judgment. Because the trial court will be faced on remand with dividing the marital property without an offset for anticipated Social Security benefits, we proceed to address the extent to which the trial court is authorized to consider those benefits in any way as a factor in its equitable distribution of marital property.
C. Social Security Benefits as a "Relevant Factor" Pursuant to 19-A M.R.S. § 953 in Dividing Marital Property
[¶ 13] After Hisquierdo, courts have adopted two broad approaches to the relationship between marital property and Social Security benefits. A minority of jurisdictions have outright prohibited the consideration of Social Security benefits by a divorce court when dividing marital property. See, e.g., In re Crook, 286 Ill. Dec. 141, 813 N.E.2d at 204-05 (finding that any consideration of Social Security benefits amounts to an impermissible offset if it has any effect on the division of marital property); In re Marriage of Swan, 301 Or. 167, 720 P.2d 747, 751 (1986) (finding that the Social Security Act's anti-assignment provisions prohibit a family court from considering Social Security benefits when dividing marital property).
[¶ 14] Most courts, however, have taken a less restrictive approach, allowing consideration of a party's anticipated Social Security benefits as a factor among others, when dividing marital property:
[W]hile the anti-reassignment clause of the Social Security Act precludes a trial court from directly dividing social security income in a divorce action, a trial court may still properly consider a spouse's social security income within the more elastic parameters of the court's power to formulate a just and equitable division of the parties' marital property.
In re Marriage of Zahm, 138 Wash.2d 213, 978 P.2d 498, 502 (1999). See also In re Marriage of Morehouse, 121 P.3d 264, 267 (Colo.Ct.App.2005) (holding that although an offset is not permissible, a court may premise an unequal distribution of marital property on the fact that a party is likely to have greater Social Security benefits); In re Marriage of Brane, 21 Kan.App.2d *1001 778, 908 P.2d 625, 628 (1995) (rejecting the argument that the anti-assignment provision of the Social Security Act prohibits a court from considering Social Security benefits in an equitable distribution jurisdiction); Mahoney v. Mahoney, 425 Mass. 441, 681 N.E.2d 852, 856-57 (1997) (affirming a trial court's decision to consider "Social Security benefits as one factor, among others, in making an equitable distribution of the distributable marital assets"); Neville, 791 N.E.2d at 437 (asserting that a court's "consideration of Social Security benefits in relation to all marital assets is the more reasoned approach").
[¶ 15] Our decision in Pongonis adopted this latter approach, expressly finding that "the provisions of [§ 407(a) do not prohibit] the court's consideration of [a spouse's] anticipated social security retirement benefits in determining a just division of the parties' marital property." 606 A.2d at 1058. Neither the letter nor purpose of § 407(a) of the Social Security Act compel courts to ignore expected annual Social Security benefit payments when undertaking their responsibility to equitably divide marital property. A divorce court's consideration of a spouse's anticipated or actual Social Security benefit payments as a relevant factor pursuant to 19-A M.R.S. § 953 does not represent a transfer or assignment of "[t]he right of any person to any future payment under [the portion of the Social Security Act that governs old-age, survivors, and disability insurance benefits]" in violation of the Social Security Act's anti-assignment provision. 42 U.S.C.A. § 407(a).
[¶ 16] Such consideration also does not violate § 407(a)'s prohibition against subjecting "the moneys paid or payable or rights existing under this subchapter ... to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law." Id. (emphasis added). Since Hisquierdo was decided, the Supreme Court had occasion to revisit § 407(a), and it adopted a restrictive view of the meaning of "other legal process" as used in that section:
"[O]ther legal process" should be understood to be process much like the processes of execution, levy, attachment, and garnishment, and at a minimum, would seem to require utilization of some judicial or quasi-judicial mechanism, though not necessarily an elaborate one, by which control over property passes from one person to another in order to discharge or secure discharge of an allegedly existing or anticipated liability.
Washington State Dep't of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 385, 123 S.Ct. 1017, 154 L.Ed.2d 972 (2003). A divorce court's treatment of a spouse's anticipated or actual Social Security benefit payments as a factor relevant to the equitable distribution of property is neither a judicial process "much like the processes of execution, levy, attachment and garnishment," nor a mechanism by which control over Social Security benefits "passes from one person to another." Id.[3]
[¶ 17] The approach we approved in Pongonis makes common sense. The *1002 court's role in property division is to accomplish a just division that takes into account "all relevant factors."[4] Just as few married couples engaged in a serious assessment of their retirement resources would ignore the availability of Social Security benefits, courts should not be required to ignore reality and fashion a distributive award of the parties' retirement and other marital assets divorced from the actual "economic circumstances of each spouse at the time the division of property is to become effective." 19-A M.R.S. § 953(1)(C); see also In re Marriage of Boyer, 538 N.W.2d 293, 293-94 (Iowa 1995) (stating that "a state court is not required to pretend to be oblivious of the fact that one party expects benefits that will not be enjoyed by the other"). Failing to consider Social Security benefit payments a spouse can reasonably be expected to receive in the near future may result in a distorted picture of that spouse's financial needs, and, in turn, an inequitable division of the marital property.
[¶ 18] Accordingly, the annual amount of anticipated Social Security benefit payments a spouse is expected to receive may be a "relevant factor" under section 953(1).[5] Although "relevance" necessarily turns on a multiplicity of factors, two stand out: First, whether it is reasonable to expect that one or both spouses will qualify for and receive Social Security retirement benefit payments in the reasonably foreseeable future; and second, whether the anticipated benefit payments are a substantial financial consideration when viewed in relation to the retirement assets and other sources of income that will be available to each spouse following the divorce. If both questions are answered in the affirmative, it is likely that the anticipated benefit payments are relevant to the court's analysis. See Mahoney, 681 N.E.2d at 856-57.
[¶ 19] Here, Carol and David have earned sufficient quarters to qualify for Social Security benefits, both are in their late-fifties and approaching retirement, and it is likely that they will soon rely on their expected Social Security benefits, in addition to their retirement savings, for their separate support. Their anticipated monthly Social Security benefits, therefore, are reasonably certain to affect their respective economic circumstances in an appreciable manner soon after their divorce. The court may, in the exercise of sound discretion, consider evidence of the parties' anticipated monthly Social Security benefit payments when deciding how to equitably divide their marital estate.
The entry is:
Judgment vacated. Remanded to the District Court for further proceedings consistent with this opinion.
DANA, J., with whom CALKINS, J., joins, concurring in part and dissenting in part.
[¶ 20] I agree with the Court's decision insofar as it holds that a trial court may *1003 not assign a dollar value to anticipated Social Security benefits or distribute marital property now to offset one spouse's future Social Security benefits. I respectfully dissent from that portion of the Court's opinion that authorizes trial courts to do the latter anyway.
[¶ 21] The United States Supreme Court, in deciding that using other assets to balance or offset one spouse's expected Railroad Retirement benefits was tantamount to anticipating and dividing those benefits in violation of federal law, wrote:
If, for example, a nonemployee spouse receives offsetting property, and then the employee spouse dies before collecting any benefits, the employee's heirs or beneficiaries suffer to the extent that the offset exceeds the lump-sum death benefits the Act provides. Similarly, if the employee leaves the industry before retirement, and so fails to meet the "current connection with the railroad industry" requirement for certain supplemental benefits, the employee never will fully regain the amount of the offset. A third possibility, of course, is that Congress might alter the terms of the Act.... By barring lump-sum community property settlements based on mere expectations, the prohibition against anticipation prevents such an obvious frustration of congressional purpose. It also preserves congressional freedom to amend the Act, and so serves much the same function as the frequently stated understanding that programs of this nature convey no future rights and so may be changed without taking property in violation of the Fifth Amendment.
Hisquierdo v. Hisquierdo, 439 U.S. 572, 589-90, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) (citations omitted).
[¶ 22] In my view, the only approach that complies with the federal prohibition against anticipating Social Security benefits is to not do it. Any consideration of Social Security benefits that has an impact on the equitable distribution of marital property amounts to an impermissible offset; any such consideration that has no effect on an equitable distribution is of no consequence. See In re Crook, 211 Ill.2d 437, 286 Ill.Dec. 141, 813 N.E.2d 198, 205 (2004).
[¶ 23] Leaving Social Security benefits out of the equation appears to be the only way to avoid the harm that federal law seeks to prevent, namely, adjusting property rights on the basis of an expectation of future Social Security benefits.[6] Encouraging the trial courts to consider future Social Security benefits when dividing marital property, without disclosing the impact of that consideration is, in my view, inappropriate.
NOTES
[*] Justice Paul L. Rudman sat at oral argument, but retired before this opinion was certified.
[1] Carol introduced an accountant's present value estimate of both parties anticipated Social Security benefits and her Maine State Retirement System benefits. The accountant referred to the parties' Social Security statements, with projected monthly benefits commencing at age sixty-six, and assumed future employment until retirement. In estimating the present value of Carol's Maine State Retirement System benefits, the accountant projected her monthly benefits commencing at age sixty.
[2] See In re Marriage of Kelly, 198 Ariz. 307, 9 P.3d 1046, 1047 (2000) (holding that Social Security benefits may not be divided as community property); Skelton v. Skelton, 339 Ark. 227, 5 S.W.3d 2, 4 (1999) (stating that "Congress has excluded from its definition of marital property any benefits from social security"); In re Marriage of Morehouse, 121 P.3d 264, 265 (Colo.Ct.App.2005) (stating "a trial court cannot distribute or divide Social Security benefits as marital property"); Mahoney v. Mahoney, 425 Mass. 441, 681 N.E.2d 852, 855-56 (1997) (holding that Social Security benefits are not marital property because Congress has expressed its intent to preempt this entire area of law by providing for divorced spouses in certain situations); Wolff v. Wolff, 112 Nev. 1355, 929 P.2d 916, 920-21 (1996) (holding that Social Security benefits cannot be divided as community property); Neville v. Neville, 99 Ohio St.3d 275, 791 N.E.2d 434, 436 (2003) (citing Hisquierdo for the proposition that federal law preempts a state law that would authorize the equitable distribution of Social Security benefits in a divorce action); In re Marriage of Swan, 301 Or. 167, 720 P.2d 747, 750 (1986) (stating that "[i]ncluding the value of ... social security benefits ... in a division of marital property... is contrary to the Social Security Act"); In re Marriage of Zahm, 138 Wash.2d 213, 978 P.2d 498, 502 (1999) (concluding "that federal statutes secure social security benefits as the separate indivisible property of the spouse who earned them").
[3] Notably, the Railroad Retirement Act's anti-assignment provision considered in Hisquierdo was more restrictive than the anti-assignment language of § 407(a):
"Notwithstanding any other law of the United States, or of any State, territory, or the District of Columbia, no annuity or supplemental annuity shall be assignable or be subject to any tax or to garnishment, attachment, or other legal process under any circumstances whatsoever, nor shall the payment thereof be anticipated...."
Hisquierdo, 439 U.S. at 576, 99 S.Ct. 802 (quoting 45 U.S.C. § 231m) (emphasis added). Section 407(a) does not contain language that corresponds to the highlighted portion quoted above.
[4] Title 19-A M.R.S. § 953(1) (2005) directs that a court "shall divide the marital property in proportions the court considers just after considering all relevant factors."
[5] The Pongonis decision contains a citation to former 19 M.R.S.A. § 722-A (1981 & Supp. 1991) with a parenthetical note that "`[t]he value of the property set apart to each spouse' is a relevant factor for the court's consideration in division of marital property." 606 A.2d at 1058. This citation and parenthetical can be read to suggest that Social Security benefits should be treated as non-marital property "set apart to each spouse." Because Social Security benefits are neither marital nor non-marital property, we expressly reject this suggestion.
[6] I note that another option avoids the issue altogether. Instead of having spousal support end when David turns sixty-six, the court could have it continue into retirement. Social Security benefits can be considered as a source of income for the purpose of awarding spousal support, without contravening Hisquierdo. See 42 U.S.C.A. § 659(a) (West 2003) ("Notwithstanding any other provision of law, ... moneys due from, or payable by, the United States ... to any individual ... shall be subject ... to withholding ... to enforce the legal obligation of the individual to provide child support or alimony."). See also Lanier v. Lanier. 278 Ga. 881, 608 S.E.2d 213, 215 n. 2 (2005) (noting tier one Railroad Retirement benefits equivalent to Social Security benefits and illustrating how a court does not violate federal law when it considers expected railroad retirement benefits in assessing alimony). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263388/ | 893 A.2d 1152 (2006)
167 Md. App. 483
Michael James BLASI
v.
STATE of Maryland.
No. 2633, Sept. Term, 2004.
Court of Special Appeals of Maryland.
March 2, 2006.
*1154 C. William Michaels, Baltimore, David M. Williams, Chestertown, for appellant.
Brian S. Kleinbord (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.
Panel ADKINS, MEREDITH, WOODWARD, JJ.
WOODWARD, J.
On January 18, 2005, the Circuit Court for Harford County convicted appellant, Michael James Blasi, of driving under the *1155 influence of alcohol, in violation of Maryland Code (1977, 2002 Repl.Vol.), section 21-902(a)(1), of the Transportation Article (hereinafter "Trans. Art., § ____"). On appeal, appellant raises two important issues for our consideration. First, appellant asks us to find that the traffic stop was unlawful, because the police officer did not have probable cause to believe that appellant made an unsafe lane change in violation of Trans. Art., § 21-309(b). Second, appellant requests that we decide, for the first time in Maryland, that the administration of field sobriety tests by a police officer during a valid traffic stop constitutes a "search" within the meaning of the Fourth Amendment to the U.S. Constitution, and consequently, the officer must have probable cause that the driver is under the influence of alcohol before conducting such tests.
For the reasons set forth herein, we hold that: (1) under the facts of this case, the police officer had probable cause to believe that appellant made an unsafe lane change in violation of Trans. Art., § 21-309(b); and (2) the administration of field sobriety tests by a police officer constitutes a "search" within the meaning of the Fourth Amendment, but applying Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the constitutionally mandated prerequisite for conducting such tests is reasonable articulable suspicion, not probable cause, that the driver is under the influence of alcohol. Accordingly, we shall affirm the judgment of the circuit court.
SUPPRESSION HEARING FACTS
Appellant's motion to suppress the vehicle stop and the evidence flowing from that stop came before the circuit court on January 18, 2005. The State called one witness: Trooper Harris of the Maryland State Police. Appellant testified on his own behalf, and called Karen Mitchell, his friend and a passenger in his vehicle during the stop at issue. Because the trial court found Trooper Harris "to be a very credible witness" and "accept[ed] his version of what he observe[d]," we will set forth only those facts of the events in question that appear in the testimony of Trooper Harris.
On the night of March 17, 2004, Trooper Harris was assigned to traffic enforcement in Harford County. At approximately 11:30 p.m., while on secondary patrol in the vicinity of northbound Route 24 at Wheel Road in Bel Air, he observed a medium colored Acura traveling northbound in lane two on Route 24.[1] Trooper Harris, in his marked patrol car, was in lane one, a short distance behind the Acura.[2] There was "medium traffic" on the road at that time.
While following the Acura, Trooper Harris observed two things: (1) the vehicle was unable to drive within its lane, and (2) the vehicle's speed fluctuated about eight to ten miles an hour above and below the posted speed limit of 55 m.p.h. Trooper Harris described the vehicle's movements:
[The Acura was] failing to drive within a single lane. In the slow lane there would be a solid white l[i]ne that would be separating the shoulder and the right lane, and a dotted line would be separating the lane that I was in and the Defendant's lane. I noticed the vehicle would travel over the right shoulder. When I say travel over the right shoulder, the whole vehicle wasn't on the shoulder, *1156 two wheels were over the solid line. The vehicle would come back across the lane that I was traveling in and two wheels would go over the dotted line. At no time was the vehicle completely over the white line or completely over the dotted line.
Trooper Harris observed the Acura leave its lane twice: once over the solid white line separating lane two from the shoulder, and then back the other direction, across the dotted line, and into the lane occupied by Trooper Harris. He noted that "[a]lmost half" of the vehicle swerved over the solid white line and on to the shoulder of Route 24. These movements were in conjunction with the vehicle speeding up to 65 m.p.h., and then down to 45 m.p.h. The vehicle's movements and variations in speed occurred over approximately one quarter of a mile, on a straight and level section of Route 24.[3] Trooper Harris was not aware of any external factor, thing, or other car that might have caused the Acura to leave its lane. Trooper Harris noted, "I never lost sight of the vehicle."
Based on his observations, Trooper Harris activated his emergency equipment and initiated a traffic stop of the Acura. Upon approaching the Acura, Trooper Harris advised appellant, the driver, as to why he was stopped, at which time Trooper Harris detected the odor of alcohol within the vehicle. Trooper Harris asked the driver for his license and registration. He identified the driver as appellant, Michael James Blasi.
Noting that appellant had a passenger in the vehicle, Trooper Harris sought to determine whether the driver or the passenger had been drinking. He asked appellant to get out of the car and step to the rear of the vehicle. As Trooper Harris stood an arm's length away from appellant, he "detect[ed] a strong odor of alcoholic beverage emanating from [appellant's] breath and person." Trooper Harris observed that appellant's "eyes were bloodshot and glassy," and that his speech was "absolutely slurred." Trooper Harris asked appellant if he "had anything to drink," to which appellant replied, "just a few."
Trooper Harris then asked appellant to submit to a battery of field sobriety tests; appellant responded, "no problem."[4] Trooper Harris administered three standardized field sobriety tests: (1) the horizontal gaze nystagmus ("HGN"), (2) the walk-and-turn, and (3) the one-leg-stand. Prior to commencing the tests, Trooper Harris inquired of appellant as to whether he had any mental or physical impairments that would prohibit him from doing the field sobriety tests; appellant replied in the negative.
The field sobriety tests were conducted on the side of Route 24, between appellant's vehicle and the police car. The surface was flat, level, and clear of debris. On the basis of the HGN test, which measures *1157 the involuntary jerking of the eye, Trooper Harris concluded that appellant had alcohol in his system. On the remaining tests, the walk-and-turn and one-leg-stand, appellant was unable to maintain his balance or walk heel to toe without stepping off the line. At the conclusion of the tests, Trooper Harris placed appellant under arrest. At no time did appellant object to performing the field sobriety tests, and at all times appellant was polite and cooperative.
In arguing the motion to suppress, appellant raised two issues: (1) that the initial stop of appellant was unlawful, and (2) that the field sobriety tests were unlawful because appellant was coerced into performing them, and further that the tests require probable cause because they constitute a "search in the person's mind and cogn[i]tive abilities." The State countered that the stop was proper based upon Trooper Harris's observations of appellant's vehicle as it traveled northbound on Route 24, and that "field sobriety tests are not a search."
After hearing the testimony and both parties' arguments, the court stated in relevant part:
In any event, I found the officer to be very credible and I so accept his version of what he observes.
In a quarter to a half a mile the trooper sees the Defendant's car go one half of the way over the shoulder line and back over to the left one half of the way over into another travel lane occupied by the officer's vehicle. This is quite different from the Rowe case, and all of this is on Route 24[,] which is a major highway. This is coupled with speeding up to sixty-five and dropping down to forty-five. All of this gives reasonable articulable suspicion to make the stop.
Upon stopping the vehicle and encountering the driver[,] he smells alcohol. Quite frankly, in fairness to the occupant driver he asks him to go to the rear so as to isolate the Defendant to make sure that the odor is coming from him and is not coming from another source inside of the car; i.e., the second individual. He goes to the back of the car and it is coming or emanating from him, and the Defendant even acknowledges that he has had a few.
Now, the trooper asks him to do some field tests and the Defendant consents. The Court finds absolutely no coercion, no promises, no threats, no subtle threats. The Defendant due to his upbringing feels that he has no choice. The officer did nothing to coerce, et cetera. There is nothing coercive about him requesting him to come to the back of the car, nothing about the questions asked or about taking the tests, and the Court will deny the motion to suppress.
The case immediately went to trial before the circuit court, sitting without a jury. The State proceeded on only one charge, driving under the influence of alcohol in violation of Trans. Art., § 21-902(a)(1). Appellant entered a plea of not guilty, with consent to submission on an agreed statement of facts. Based on that statement, the court found appellant guilty and sentenced him to thirty days incarceration, a partially suspended fine, and three years of supervised probation. Thereafter, appellant noted a timely appeal to this Court.
STATEMENT OF ISSUES
Appellant presents one issue with eight sub-parts for our review, which we have re-phrased as follows:[5]
*1158 I. Whether the trial court erred by determining that the police officer had probable cause of a traffic violation that justified a traffic stop of the motor vehicle operated by appellant.
II. Whether the administration of field sobriety tests by a police officer during a valid traffic stop constitutes a "search" within the meaning of the Fourth Amendment to the U.S. Constitution.
III. If the administration of field sobriety tests constitutes a "search," whether the Fourth Amendment requires that the police officer have probable cause to believe that appellant was driving under the influence of alcohol prior to the administration of the tests.
IV. Whether appellant preserved for appellate review his contention that the administration of field sobriety tests during a valid traffic stop constitutes a custodial interrogation within the meaning of the Fifth Amendment to the U.S. Constitution and Article 22 of the Maryland Declaration of Rights.
STANDARD OF REVIEW
In reviewing the denial of a motion to suppress evidence, we rely solely on the record developed at the suppression hearing. State v. Green, 375 Md. 595, 607, 826 A.2d 486 (2003); Alston v. State, 159 Md.App. 253, 261, 858 A.2d 1100 (2004), cert. granted, 390 Md. 500, 889 A.2d 418 (2006). "[W]e view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion," and accept factual findings made by the motion court that are not clearly erroneous. State v. Rucker, 374 Md. 199, 207, 821 A.2d 439 (2003). Although we extend great deference to the motion court's findings of fact, such as determinations of witness credibility and the weight of the evidence, we make our own independent constitutional appraisal of the law as it applies to the facts of the case. Alston, 159 Md.App. at 261-62, 858 A.2d 1100.
DISCUSSION
The Traffic Stop
The Fourth Amendment to the U.S. Constitution protects against unreasonable government searches and seizures. See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002). A traffic stop involving a motorist is a detention that implicates the Fourth Amendment. See United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); Green, 375 Md. at 609, 826 A.2d 486; Rowe v. State, 363 Md. 424, 432, 769 A.2d 879 (2001); Ferris v. State, 355 Md. 356, 369, 735 A.2d 491 (1999); Edwards v. State, 143 Md.App. 155, 164, 792 A.2d 1197 (2002). Such a stop does not initially violate the U.S. Constitution if a police officer has probable cause to believe that the driver has committed a traffic violation, see Whren v. United States, 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), or where an officer has reasonable articulable suspicion that "criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
While "reasonable suspicion" is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, *1159 the Fourth Amendment requires at least a minimum level of objective justification for making the stop. The officer must be able to articulate more than an "inchoate and unparticularized suspicion or `hunch'" of criminal activity.
Illinois v. Wardlow, 528 U.S. 119, 123-24, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (citations omitted).
Appellant argues that the trial court erred in denying his motion to suppress because Trooper Harris did not have probable cause to believe that appellant had violated any traffic law. The State counters that Trooper Harris made a lawful traffic stop after observing appellant move out of his lane on two separate occasions and drive at erratic speeds over a short distance.[6]
In support of his position that the traffic stop was unlawful, appellant places great emphasis on the opinion of the Court of Appeals in Rowe, 363 Md. 424, 769 A.2d 879. The relevant facts of Rowe are as follows. A Maryland State Trooper observed a van being driven in the slow lane of Interstate 95 at 1:00 a.m. Id. at 427-28, 769 A.2d 879. The trooper followed the van for 1.2 miles. Id. at 427, 769 A.2d 879. Within that distance, he observed the van cross the white edge line on the right shoulder approximately eight inches and touch the rumble strips and then immediately return to the slow lane. Id. at 427-28, 769 A.2d 879. When the officer observed the vehicle touch the white edge line a second time, he initiated a traffic stop for "the benefit of the driver" because "late in the evening ... people fall[] asleep at the wheel." Id. at 428, 769 A.2d 879. The officer acknowledged that late night drivers "could have possibly been intoxicated" when not driving within a single lane. Id. The officer determined that Rowe was not intoxicated, but upon discovering that Rowe was driving a rental vehicle issued to another driver, and that the rental contract had expired, the officer asked to search the vehicle. Id. at 429, 769 A.2d 879. Rowe consented, and the ensuing search of luggage in the vehicle revealed 34,000 grams of marijuana (seventy-seven pounds). Id. Rowe was charged with possession of marijuana, possession with intent to distribute marijuana, and driving a rented vehicle in violation of the rental agreement. Id. He was also issued a warning for failure to drive within a single lane under Trans. Art., § 21-309(b).[7]Id. at 430, 769 A.2d 879.
*1160 The Court of Appeals reversed this Court's affirmance of the trial court's denial of petitioner's motion to suppress the evidence derived from the traffic stop. The Rowe Court acknowledged that the purpose of section 21-309(b) is to promote safety on laned highways, but held:
We conclude that the petitioner's momentary crossing of the edge line of the roadway and the later touching of that line did not amount to an unsafe lane change or unsafe entry onto the roadway, conduct prohibited by § 21-309, and thus, cannot support the traffic stop in this case.
Id. at 441, 769 A.2d 879.
In the instant case, appellant analogizes his situation with that of the petitioner in Rowe. Appellant contends that his acts of crossing onto the shoulder of the road, back over and across the line dividing the northbound lanes, coupled with speed changes from 10 m.p.h. over to 10 m.p.h. under the speed limit, were not sufficient to justify a traffic stop. Rather, he asserts that "swerving, jerking movements, or straying more consistently and for longer periods over lane lines, is necessary for there to be a `violation' that would justify a police stop."
In response, the State argues that the case sub judice is distinguishable from Rowe and points to two more recent opinions issued by this Court, Edwards, 143 Md.App. 155, 792 A.2d 1197, and Dowdy v. State, 144 Md.App. 325, 798 A.2d 1 (2002). First, in Edwards, this Court concluded that the defendant's "crossing [of] the center line of an undivided, two lane road by as much as a foot, on at least one occasion, provided a legally sufficient basis to justify the traffic stop." 143 Md.App. at 171, 792 A.2d 1197. We distinguished Rowe, "which involved a brief crossing of an edge line separating the slow lane from a shoulder area," because of "the danger associated with veering into an opposing lane of traffic, even briefly." Id.
Second, in Dowdy, a Maryland State Trooper observed a vehicle being driven in the slow lane of two westbound lanes of Route 140 at 11:54 p.m. 144 Md.App. at 326-27, 798 A.2d 1. As the trooper followed the vehicle he observed that "it was drifting continuously from side to side," and on two occasions the vehicle moved from the right lane across the broken lane markings. Id. at 327, 798 A.2d 1. Specifically, the trooper observed the left tires of the vehicle cross over the broken lane markings into lane number one for approximately one tenth of a mile, and then one half of a mile later, he observed one quarter of the vehicle cross the same lane markings and travel another tenth of a mile. Id. These movements of the vehicle occurred over a distance of one and one half miles. Id.
We distinguished the facts in Dowdy from those in Rowe. We said that in Rowe there was no lane change, unsafe or otherwise, because the driver only moved eight inches beyond the right edge line of the roadway, returned to the paved road, and later touched the same edge line. See id. at 330, 798 A.2d 1. By contrast, the vehicle in Dowdy "crossed over from the slow lane into the passing lane and remained there for one-tenth of a mile twice," creating a "potential danger to anyone who may have been proceeding lawfully in the passing lane." Id. (emphasis added). Moreover, the vehicle's "swaying back and forth `continuously from side to side' for the entire mile and a half ... was far more egregious than that presented in Rowe." Id. We concluded, inter alia, that the "totality of the circumstances [established] that appellant was in violation of § 21-309(b), which established probable cause for the stop." Id. at 331, 798 A.2d 1.
*1161 We agree with the State that the instant case is factually distinguishable from Rowe, and more analogous to Dowdy. Like Dowdy, appellant's vehicle crossed from the slow lane into the passing lane, with two wheels over the broken line, thereby creating a "potential danger to anyone who may have been proceeding lawfully in the passing lane." Id. at 330, 798 A.2d 1. It is true that appellant's vehicle crossed over the broken line only once, as opposed to twice in Dowdy, and apparently did not travel as far on the road while over the broken line, as in Dowdy. However, appellant's driving in this case was much more erratic than the defendant's driving in Dowdy. In Dowdy, other than crossing the broken line twice, the defendant's vehicle drifted continuously from side to side within the lane for a mile and one half. See id. at 327, 798 A.2d 1. Here, in the span of only one quarter of a mile, appellant went on to the right shoulder of the road, with one half of his vehicle over the solid white line, came back to the left, and crossed over the broken line between lanes one and two, all while speeding up to 65 m.p.h. and then down to 45 m.p.h. These movements occurred on a straight, level road, without any obstructions or other external factors, and would have taken only about sixteen seconds if the vehicle averaged 55 m.p.h.
In sum, appellant made a lane change when part of his vehicle crossed from the slow lane into the passing lane, and his erratic driving immediately preceding such movement made that lane change unsafe. Under the totality of the circumstances in the case sub judice, we conclude that Trooper Harris made a lawful traffic stop of appellant's vehicle, because he had probable cause to believe that appellant was operating that vehicle in violation of Trans. Art., § 21-309(b).
Are Field Sobriety Tests A "Search"?
Appellant contends that field sobriety tests conducted by a police officer during a valid traffic stop constitute a "search" within the scope of the Fourth Amendment's protection against unreasonable governmental searches and seizures. The State counters by arguing that field sobriety tests do not constitute a search within the meaning of the Fourth Amendment. Instead, according to the State, field sobriety tests may be administered by a police officer as a part of an investigatory stop based upon a reasonable articulable suspicion that the driver was operating a motor vehicle under the influence of alcohol.
The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. The Supreme Court, however, "has never managed to set out a comprehensive definition of the word `searches' as it is used in the Fourth Amendment." Wayne R. LaFave, Search and Seizure § 2.1(a) (4th ed.2004). Initially, the Supreme Court limited the protection of the Fourth Amendment to physical intrusions by police into a "constitutionally protected area," to wit, persons, houses, papers, and effects. See id. at 430-31, 798 A.2d 1; Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942); Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).
In the seminal case of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Supreme Court reviewed the admission into evidence at trial of the defendant's telephone conversations from a telephone booth that had been overheard and recorded by F.B.I. agents using an electronic device attached to the *1162 exterior of the booth. See id. at 348, 88 S.Ct. 507. The Government argued that the agents' actions did not constitute a search within the meaning of the Fourth Amendment, because a public telephone booth was not a "constitutionally protected area" and there was no physical penetration of the telephone booth. See id. at 351-53, 88 S.Ct. 507. Writing for the Court, Justice Stewart rejected the Government's contention by stating:
For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
Id. at 351, 88 S.Ct. 507 (citations omitted).
The Court concluded that the "Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and this constituted a `search and seizure' within the meaning of the Fourth Amendment." Id. at 353, 88 S.Ct. 507 (emphasis added). Based on a concurring opinion by Justice Harlan, the Court's holding in Katz has been stated as "whenever an individual may harbor a reasonable `expectation of privacy,' he is entitled to be free from unreasonable governmental intrusion." Terry, 392 U.S. at 9, 88 S.Ct. 1868 (citation omitted). The Court of Appeals of Maryland has articulated the Katz principle by stating that "[t]he scope of the protection afforded by the Fourth Amendment is defined in terms of the individual's `legitimate expectation of privacy.'" Stanberry v. State, 343 Md. 720, 731, 684 A.2d 823 (1996); see Sproates v. State, 58 Md.App. 547, 563, 473 A.2d 1289 (1984) (describing the principle as a "legitimate or reasonable" expectation of privacy).[8]
When the teachings of Katz and its progeny are applied to field sobriety tests, we must determine whether the State has intruded into an area where an individual has a reasonable expectation of privacy. The area implicated by field sobriety tests has been described as "personal characteristics" or "physical characteristics" of an individual. See La Fave, at § 2.6(a); United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 21, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973).
The Supreme Court has held that the physical characteristics of a voice exemplar are not within the ambit of a reasonable expectation of privacy because "a person's voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public." Dionisio, 410 U.S. at 14, 93 S.Ct. 764; see also Miles v. State, 365 Md. 488, 513, 781 A.2d 787 (2001). Similarly, the furnishing of a handwriting exemplar is not within the Fourth Amendment's protection because "[h]andwriting, like speech, is repeatedly shown to the public." Mara, 410 U.S. at 21, 93 S.Ct. 774; see also Burns v. State, 813 So.2d 668, 681 (Miss.2001).
On the other hand, the Supreme Court has held that the obtaining of certain physical characteristics does constitute a search under the Fourth Amendment, including taking a blood sample, see Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); collecting breath and urine samples, Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 *1163 (1989); and obtaining scrapings from a defendant's fingernails, Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973).[9]
Focusing on the physical characteristics of a driver that are subject to governmental intrusion during a routine traffic stop, the Colorado Supreme Court stated that "a driver of a motor vehicle has no legitimate expectation of privacy in his physical traits and demeanor that are in the plain sight of an officer during a valid traffic stop." People v. Carlson, 677 P.2d 310, 316 (Colo.1984). For example, an officer's observation of the driver's gait upon exiting the vehicle and walking to the rear of the vehicle "is no different than the viewing of his general physical characteristics, such as height, weight or build." Id. By contrast, the court held that an individual has a constitutionally protected privacy interest in the "coordinative characteristics" exposed by the administration of field sobriety tests. Id. at 317. Therefore, field sobriety tests constitute "a full `search' in the constitutional sense of that term." Id.
In State v. Purdie, 209 Mont. 352, 680 P.2d 576, 578 (1984), the Montana Supreme Court initially held that the administration of field sobriety tests constitutes a mere observation of an individual's physical behavior, "which hardly amounts to an intrusion into his reasonable expectation of privacy," and therefore, does not constitute a search under the Montana or federal constitutions. The Court explained that, like voice and handwriting samples, an individual lacks any reasonable expectation of privacy in his physical behavior. See id.
Fourteen years later, however, the Montana Supreme Court had the occasion to revisit Purdie and expressly overruled its holding that field sobriety tests do not constitute a search under the Fourth Amendment to the U.S. Constitution and the Montana Constitution. See Hulse v. State, 289 Mont. 1, 961 P.2d 75, 85 (1998). The Court cited with approval the two reasons advanced by the Oregon Supreme Court in State v. Nagel, 320 Or. 24, 880 P.2d 451 (1994), for concluding that field sobriety tests "ran counter to an individual's reasonable expectation of privacy[:]"
First, an individual must perform certain maneuvers not normally performed in public, and, thus, the tests expose to view certain things not otherwise obvious through passive observation of an individual.
Unlike the quality of one's voice or one's handwriting, people do not regularly display that type of behavior to the public there is no reason to believe that motorists regularly stand alongside a public road reciting the alphabet, count backward from 107, stand upon one leg while counting from 1001 to 1030, or walk a line, forward and back, counting steps and touching heel to toe.
Second, an individual has a reasonable expectation of privacy in the information an officer obtains from the field sobriety tests. The court explained that like the chemical analysis of urine, "a field sobriety test may reveal evidence of equally private facts about an individual, including whether the individual is illiterate, has [A]lzheimer's disease, or suffers from multiple sclerosis."
Hulse, 961 P.2d at 84 (quoting Nagel, 880 P.2d at 457-58).
The Montana Supreme Court concluded, as did the Oregon Supreme Court in Nagel, that "field sobriety tests create a situation in which police officers may observe certain aspects of an individual's physical and psychological condition which would *1164 not otherwise be observable," and potentially reveal certain information concerning that individual's physical or psychological condition. Hulse, 961 P.2d at 85. Thus the administration of these tests intrude into an area for which an individual has a reasonable expectation of privacy. See id. The Montana Supreme Court held:
[F]ield sobriety tests are not "merely observations" of a person's physical behavior, but, rather, constitute a search under the Fourth Amendment to the United States Constitution ... because an individual's constitutionally protected privacy interests are implicated in both the process of conducting the field sobriety tests and in the information disclosed by the tests.
Id.
In the case sub judice, the State contends that "field sobriety tests differ in no meaningful way from the myriad of other observations made in the course of a routine DUI stop ... except that the former are administered in a standardized manner." The Fourth Amendment, according to the State, does not prohibit a police officer from making "non-standardized" observations (e.g., observing a driver's gait, speech, ability to follow instructions, etc.), and to differentiate between these permitted observations and field sobriety tests would be an "arbitrary distinction" under the Fourth Amendment. We disagree.
The State overlooks the rationale underlying the Fourth Amendment's protection of an individual's personal or physical characteristics. The Fourth Amendment provides no protection for "[w]hat a person knowingly exposes to the public," Katz, 389 U.S. at 351, 88 S.Ct. 507, which includes physical characteristics that are constantly exposed to the public, see Dionisio, 410 U.S. at 14, 93 S.Ct. 764. Thus an individual's physical characteristics or behaviors, such as speech, height, weight, gait, appearance, or smell, observed by a police officer during a valid traffic stop, do not constitute a search under the Fourth Amendment. See Hulse, 961 P.2d at 85; Carlson, 677 P.2d at 316.
On the other hand, as appellant properly notes in his brief, the field sobriety tests
are not, by any means, the sort of normal physical activity that one displays to the public. One just does not see an individual standing at a streetcorner [sic], sitting on a park bench, or riding in an elevator, while touching an index finder to the nose, attempting to balance while walking in a straight line in a heel to toe fashion with arms at the sides, or reciting the alphabet backwards.
Moreover, the field sobriety tests may reveal private facts about an individual's physical or psychological condition. See Nagel, 880 P.2d at 457-58.
We agree with the Montana Supreme Court in Hulse, and the Oregon Supreme Court in Nagel, that the administration of field sobriety tests by a police officer during a valid traffic stop intrude into an area of an individual's reasonable expectation of privacy because: (1) the process of conducting field sobriety tests exposes certain aspects of an individual not otherwise observable by the public; and (2) the information disclosed by the field sobriety tests may reveal private facts about an individual's physical or psychological condition. Therefore, we hold that the administration of field sobriety tests by a police officer during a valid traffic stop constitutes a search within the meaning of the Fourth Amendment to the U.S. Constitution.
Constitutionally Mandated Grounds for Conducting Field Sobriety Tests
Given that the administration of field sobriety tests constitutes a search within *1165 the meaning of the Fourth Amendment, appellant argues that a police officer must have probable cause before conducting such tests during a valid traffic stop. Appellant claims that in the case sub judice, Trooper Harris did not have probable cause to require appellant to perform the field sobriety tests on the evening in question. The State responds that upon balancing the government's compelling interest in preventing drunk driving with the minimal intrusion occasioned by the field sobriety tests, the constitutional prerequisite for administering field sobriety tests is reasonable articulable suspicion that the operator of the vehicle is driving under the influence of alcohol. In the instant case, the State contends that Trooper Harris had more than reasonable suspicion that appellant was driving under the influence of alcohol.[10]
In Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the Supreme Court decided that a governmental search within the ambit of the Fourth Amendment does not, ipso facto, require "probable cause" to justify such action. The Court said:
But we deal here with an entire rubric of police conduct necessarily swift action predicated upon the on-the-spot observations of the officer on the beat which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. Instead, the conduct involved in this case must be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures.
Id. at 20, 88 S.Ct. 1868 (footnote omitted). The Court concluded that "there is `no ready test for determining reasonableness other than by balancing the need to search (or seize) against the invasion which the search (or seizure) entails.'" Id. at 21, 88 S.Ct. 1868. In applying the balancing test to the facts of Terry, the Court held:
[W]here a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous,... he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Id. at 30, 88 S.Ct. 1868.
Applying the rationale of Terry, the Arizona Supreme Court held in State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (1986), that although field sobriety tests constitute a search under the Fourth Amendment, those tests may be justified by a police officer's "reasonable suspicion (based on specific, articulable facts) that the driver is intoxicated." Id. at 176. The Arizona Court refused to adopt the probable cause standard, explaining:
[T]he threat to public safety posed by a person driving under the influence of alcohol is as great as the threat posed by a person illegally concealing a gun. If nothing in the initial stages of the stop serves to dispel the highway patrol officer's reasonable suspicion, fear for the safety of others on the highway entitles him to conduct a "carefully limited *1166 search" by observing the driver's conduct and performance of standard, reasonable tests to discover whether the driver is drunk. The battery of roadside sobriety tests is such a limited search. The duration and atmosphere of the usual traffic stop make it more analogous to a so-called Terry stop than to a formal arrest.
Id.
Many other jurisdictions also have held that reasonable articulable suspicion, not probable cause, is the constitutional prerequisite for the administration of field sobriety tests by a police officer. See McCormick v. Municipality of Anchorage, 999 P.2d 155, 160 (Alaska Ct.App.2000); State v. Lamme, 19 Conn.App. 594, 563 A.2d 1372, 1375 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990); State v. Taylor, 648 So.2d 701, 703-04 (Fla.1995); State v. Golden, 171 Ga.App. 27, 318 S.E.2d 693, 696 (1984); State v. Wyatt, 67 Haw. 293, 687 P.2d 544, 552-53 (1984); State v. Pick, 124 Idaho 601, 861 P.2d 1266, 1270 (1993); State v. Stevens, 394 N.W.2d 388, 391 (Iowa 1986); State v. Little, 468 A.2d 615, 617-18 (Me.1983); Commonwealth v. Blais, 428 Mass. 294, 701 N.E.2d 314, 317 (1998); Columbus v. Anderson, 74 Ohio App.3d 768, 600 N.E.2d 712, 714 (1991).
Only the supreme courts of Colorado, in Carlson, 677 P.2d at 316-17, and Oregon, in Nagel, 880 P.2d at 458-59, have held that for field sobriety tests to be constitutionally permissible, they must be supported by probable cause. In Hulse, 289 Mont. 1, 961 P.2d 75, the Montana Supreme Court expressly rejected the holdings of Carlson and Nagel when it concluded "that the State's interest in administering field sobriety tests based upon particularized suspicion rather than the more stringent standard of probable cause substantially outweighs the resulting limited intrusion into an individual's privacy." Id. at 87.
Applying the balancing test of Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, to the case sub judice, we first observe that the State of Maryland has a "compelling interest in controlling and preventing drunk driving." Rowe, 363 Md. at 442, 769 A.2d 879; see also Motor Vehicle Admin. v. Shrader, 324 Md. 454, 464, 597 A.2d 939 (1991) (explaining that "[t]he General Assembly's goal in enacting the drunk driving laws ... is `to meet the considerable challenge created by this problem by enacting a series of measures to rid our highways of the drunk driver menace'"). Indeed, many long-time practitioners in this area of the law can recall that, twenty-five years ago, it was not illegal per se to drive in the State of Maryland with a specified blood alcohol concentration ("BAC"); that prima facie evidence of driving while intoxicated was a driver with a BAC of 0.15 or more; and that prima facie evidence of driving while impaired by alcohol was a driver with a BAC of 0.10 or more. Md.Code (1973, 1980 Repl.Vol.), Cts. & Jud. Proc., § 10-307(d)-(e). Now, it is illegal per se to drive in Maryland with a BAC of 0.08 or more; prima facie evidence of driving under the influence of alcohol[11] is a driver with a BAC of 0.08 or more; and prima facie evidence of driving while impaired by alcohol is a driver with a BAC of 0.07 to 0.08. See Trans. Art., § 11-174.1(a), § 21-902(a)(2); Md.Code (1973, 2002 Repl.Vol.), Cts. & Jud. Proc., § 10-307(d),(g); MPJI-Cr., 4:10.4 A, B.
*1167 Against this compelling state interest, we must next determine the substantiality of the intrusion of the field sobriety tests. Field sobriety tests are conducted on the roadside during a routine traffic stop. As the State correctly points out, the driver has already been lawfully stopped and detained because the police officer has either: (1) probable cause to believe that a traffic violation has occurred; or (2) reasonable articulable suspicion that criminal activity, such as drunk driving, may be afoot. See Whren, 517 U.S. at 810, 116 S.Ct. 1769; Terry, 392 U.S. at 30, 88 S.Ct. 1868. Upon request of the police officer, the driver is required to display his or her driver's license and registration card. Trans. Art., § 16-112(c) and § 13-409(b). The officer also has the right to order the driver out of the vehicle. See Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); Maryland v. Wilson, 519 U.S. 408, 410, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). The officer is entitled to detain the driver "during the period of time reasonably necessary for the officer to (1) investigate the driver's sobriety and license status, (2) establish that the vehicle has not been reported stolen, and (3) issue a traffic citation." Pryor v. State, 122 Md.App. 671, 682, 716 A.2d 338 (1998) (emphasis added).
The field sobriety tests that are conducted during such routine traffic stops are standard tests used by police officers to "assess promptly the likelihood that a driver is intoxicated." Little, 468 A.2d at 617. These tests are "simple tasks" designed to reveal objective information about the driver's coordination, cognitive abilities, and consumption of alcohol. See Crampton v. State, 71 Md.App. 375, 388, 525 A.2d 1087, aff'd 314 Md. 265, 550 A.2d 693 (1987). Specifically, the HGN test is used to determine whether a driver has alcohol in his or her system. See Schultz v. State, 106 Md.App. 145, 149, 664 A.2d 60 (1995). The walk-and-turn test and the one-leg-stand test focus on whether, and to what extent, the consumption of alcohol has affected a driver's normal coordination. See generally Crampton, 71 Md.App. at 388, 525 A.2d 1087. The "alphabet" and "number counting" tests measure the effect of alcohol on a driver's ability to speak with recollection. See generally id. These tests are short in duration and limited in purpose. Therefore, similar to a limited search of a person's outer clothing for the presence of weapons in order to protect the safety of an officer and others, we conclude that field sobriety tests are a minimal intrusion into a driver's constitutionally protected privacy interests. See Superior Court, 718 P.2d at 176.
In weighing the State's compelling interest in combating drunk driving against the minimal intrusion of the field sobriety tests, we agree with the rationale and holdings of the Arizona Supreme Court in Superior Court and the Montana Supreme Court in Hulse. The field sobriety tests are like Terry stops because "public safety is equally threatened by a person driving under the influence as by a person illegally concealing a gun." Hulse, 961 P.2d at 86; see also Superior Court 718 P.2d at 176. A field sobriety test is a "carefully limited search," because an officer simply observes the driver's performance of "standard, reasonable tests to discover whether the driver is drunk." Superior Court, 718 P.2d at 176. Moreover, because field sobriety tests are used to determine whether probable cause exists for an arrest, "to require probable cause that an individual has been driving under the influence before allowing police officers to administer field sobriety tests would defeat the very purpose of those tests." Hulse, 961 P.2d at 87 (emphasis added). Therefore, we conclude that the administration of field sobriety tests, *1168 based on an officer's reasonable articulable suspicion of drunk driving, clearly outweighs the intrusion caused by such tests into an individual's reasonable expectation of privacy.
Consequently, we hold that although the administration of field sobriety tests by a police officer during a valid traffic stop constitutes a search within the meaning of the Fourth Amendment, the conduct of those tests is constitutionally permissible when the officer has reasonable articulable suspicion that the driver is under the influence of alcohol.[12]
In the instant case, we have already determined that Trooper Harris made a valid traffic stop of appellant based upon probable cause that appellant committed a traffic violation. Trooper Harris had the following specific, articulable facts prior to requesting that appellant perform the field sobriety tests. First, upon approaching appellant's vehicle and advising appellant of the reason for the stop, Trooper Harris detected an odor of alcohol from within the vehicle. Second, Trooper Harris asked appellant to exit the car, and to step to the rear of the vehicle. There Trooper Harris detected a strong odor of an alcoholic beverage emanating from appellant's breath and person. Third, Trooper Harris observed that appellant's eyes were bloodshot and glassy, and that his speech was "absolutely slurred." Finally, appellant admitted to Trooper Harris that he had "just a few" drinks. It is clear from these facts that Trooper Harris had more than reasonable articulable suspicion that appellant was driving under the influence of alcohol. See Ferris, 355 Md. at 391, 735 A.2d 491 (stating that "[b]loodshot eyes, in conjunction with the odor of alcohol emanating from the person, would ordinarily provide the police with reasonable suspicion that a driver was under the influence of alcohol"). Therefore, we conclude that Trooper Harris had sufficient grounds under the Fourth Amendment to administer field sobriety tests to appellant at the roadside during the traffic stop.
Miranda Implications
Appellant argues that the field sobriety tests conducted in the instant case were a "detailed and involved effort" amounting to custodial interrogation within the meaning of the Fifth Amendment to the U.S. Constitution and Article 22 of the Maryland Declaration of Rights. The State counters that appellant's Miranda claim is not preserved, and, in any event, is without merit, because appellant was not in "custody" during the field sobriety tests, and therefore was not entitled to Miranda warnings. We agree with the State that appellant's claim is not preserved for our review.
The scope of our review is set forth in Maryland Rule 8-131(a), which states in relevant part: "Ordinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court." Although Rule 8-131(a) *1169 provides the reviewing court with the authority to decide issues not raised below, "such power is solely within the court's discretion and is in no way mandatory." See Conyers v. State, 354 Md. 132, 148, 729 A.2d 910 (1999). In State v. Bell, 334 Md. 178, 188, 638 A.2d 107 (1994), the Court of Appeals stated:
It is clear from the plain language of Rule 8-131(a) that an appellate court's review of arguments not raised at the trial level is discretionary, not mandatory. The use of the word "ordinarily" clearly contemplates both those circumstances in which an appellate court will not review issues if they were not previously raised and those circumstances in which it will.
Nevertheless, "the main purpose of Md. Rule 8-131(a) is to make sure that all parties in a case are accorded fair treatment, and also to encourage the orderly administration of the law." Conyers, 354 Md. at 148-49, 729 A.2d 910; see also Bell, 334 Md. at 189, 638 A.2d 107. Fairness is furthered by "`requir[ing] counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings.'" Bell, 334 Md. at 189, 638 A.2d 107 (citations omitted).
We conclude from a review of the record that appellant's Miranda claim is not preserved for appellate review. Appellant failed to raise the issue in his motion to suppress and accompanying memorandum, and further failed to assert it during the suppression hearing. It is of no consequence that appellant presents a constitutional question. See Medley v. State, 52 Md.App. 225, 231, 448 A.2d 363 (1982) (recognizing that even constitutional issues may be waived if not properly raised at the trial court level pursuant to Rules 885 and 1085, both predecessors to current Maryland Rule 8-131(a)). We also decline to exercise our discretion to review appellant's Miranda claim and, consequently, will not address appellant's last question in this appeal.
JUDGMENT OF THE CIRCUIT COURT FOR HARFORD COUNTY AFFIRMED; APPELLANT TO PAY COSTS.
NOTES
[1] Route 24 is a four lane road, two lanes northbound and two lanes southbound. Lane two is the right lane, or slow lane, of the northbound lanes.
[2] Lane one is the left lane, or passing lane, of the northbound lanes.
[3] Trooper Harris's calculation of one quarter of a mile is based on the distance between the intersections of Route 24 and Singer Road and Route 24 and Wheel Road, which is approximately one mile. At the time Trooper Harris encountered the Acura, he was at the halfway point between those roads. He made the traffic stop just prior to Wheel Road.
[4] Trooper Harris noted that if appellant had refused to submit to the field sobriety tests he would have had to make a reasonable decision to place appellant under arrest, because he would not have felt comfortable letting appellant go knowing there was alcohol in his system. Trooper Harris did not promise, threaten, or induce appellant to take the field sobriety tests and did not tell him that there were any consequences if appellant refused the tests. Appellant was not told by Trooper Harris that he did not have to take the tests.
[5] Appellant also raises the issues of whether the trial court erred in finding: (1) that appellant consented to performing the field sobriety tests, and (2) that there were no promises, threats, subtle threats, or coercive tactics on the part of Trooper Harris to secure appellant's consent. In light of our decision in this appeal, we need not address these issues.
[6] The State also appears to argue that the traffic stop of appellant can be justified on a separate ground of reasonable articulable suspicion of criminal activity, i.e., driving under the influence of alcohol. We disagree, for the simple reason that Trooper Harris never testified that he stopped appellant's vehicle because he believed that the operator was driving while under the influence of alcohol. After describing the maneuvers of appellant's vehicle, which included "failing to drive within a single lane" and "speed [changes] eight to ten [m.p.h.] above and below [the posted speed limit]," Trooper Harris said: "With those violations observed, I activated my emergency equipment and initiated a traffic stop of [appellant's] vehicle." Reasonable suspicion justifying a traffic stop must be based on specific, articulable facts. See Cox v. State, 161 Md.App. 654, 670, 871 A.2d 647 (2005) (explaining that "it is clear that the police may effect a lawful stop of a motorist, so long as the officer is `able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion'") (citation omitted).
[7] Section 21-309(b) provides: (b) Driving in a single lane required. A vehicle shall be driven as nearly as practicable entirely within a single lane and may not be moved from that lane or moved from a shoulder or bikeway into a lane until the driver has determined that it is safe to do so.
[8] Although there is a conceptual distinction between "reasonable" and "legitimate," we will consider those terms synonymous for the purposes of the instant case. See La Fave § 2.1(d), at 439-45.
[9] In Maryland, the buccal swab for a defendant's DNA is a search for Fourth Amendment purposes. See State v. Raines, 383 Md. 1, 14, 857 A.2d 19 (2004).
[10] The State also contends, and appellant disputes, that Trooper Harris had probable cause to arrest appellant prior to the administration of the field sobriety tests because of appellant's erratic driving, odor of an alcoholic beverage on his breath and person, bloodshot eyes, slurred speech, and admission of drinking. In light of our opinion in this case, we do not find it necessary to address this contention. We do not suggest, however, that a court could not find probable cause to exist under facts similar to those in the instant case.
[11] The Editor's Note to Maryland Code (1973, 2002 Repl.Vol.), section 10-307 of the Courts and Judicial Proceedings Article provides, inter alia, "that the term `under the influence of alcohol' as used in this Act shall include within its meaning the conduct prohibited by the former reference to `intoxicated'...."
[12] Appellant also contends that under Article 26 of the Maryland Declaration of Rights, the administration of field sobriety tests by a police officer constitutes a search that can be justified only upon the existence of probable cause. This argument is without merit. The Court of Appeals has held consistently that "Article 26 of the Maryland Declaration of Rights is to be interpreted in pari materia with the Fourth Amendment." Fitzgerald v. State, 384 Md. 484, 506, 864 A.2d 1006 (2004); see also Scott v. State, 366 Md. 121, 139, 782 A.2d 862 (2001); Gadson v. State, 341 Md. 1, 8 n. 3, 668 A.2d 22 (1995). Therefore, Article 26 of the Maryland Declaration of Rights "does not accord appellant any greater protection than the Fourth Amendment to the United States Constitution." See Henderson v. State, 89 Md.App. 19, 24, 597 A.2d 486 (1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263505/ | 24 Cal.App.4th 117 (1994)
29 Cal. Rptr.2d 219
PATRICK ROMERO, Plaintiff and Respondent,
v.
JOHN J. RIGGS et al., Defendants and Appellants.
Docket No. D016459.
Court of Appeals of California, Fourth District, Division One.
March 30, 1994.
*118 COUNSEL
McInnis, Fitzgerald, Rees, Sharkey & McIntyre, Richard D. Barton, Michael J. Elia, Greines, Martin, Stein & Richland, Sheila S. Kato and Marc J. Poster for Defendants and Appellants.
Finkelstein & Finkelstein, Susan Finkelstein, Norman M. Finkelstein and Charles F. Campbell for Plaintiff and Respondent.
*119 OPINION
NARES, J.
John J. Riggs, O.D. (Riggs) and the Chicano Community Health Center doing business as Logan Heights Family Health Center (Center), appeal from an order granting a new trial to Patrick Romero (Romero) after a trial in which the jury found Center's employee Riggs had been negligent as to Romero, but also found such negligence had not caused Romero's eyesight problems. The trial judge disagreed and ordered a new trial, on the basis that in his view the evidence overwhelmingly supported a finding of causation. Because the reasons stated in the order are well supported in the record before us, we affirm.
FACTS AND PROCEDURE[1]
Romero, then 42, visited Riggs at Center in January 1986. (Center is the only facility in San Diego providing eyeglasses to social services clients. Romero had quit working several years earlier, concerned among other things about his failing eyesight.) Riggs is (as Romero knew) an optometrist, not a medical doctor, but was trained in assessing eye diseases in patients and testing for glaucoma.
During his examination of Romero, Riggs conducted various measurements of Romero's vision and eye condition, and determined his vision was correctable to 20/20 in each eye. Riggs did not suspect Romero had glaucoma. Riggs told Romero to return for a follow-up visit in two years.
Romero did not obtain glasses from the January prescription until December 1986. Late that month Romero visited the Center to see Riggs, complaining that he could not see well with his new glasses. Riggs made another examination of Romero and prescribed new glasses because of myopic change. He also conducted another series of measurements and tests on Romero. Riggs did not notice cataracts, or suspect that Romero might have had glaucoma. Riggs also referred Romero to the University of California at San Diego (UCSD) for a neurological examination, as Romero stated that he had been hit on the head recently.
Romero visited Riggs again in November 1988. At this time Riggs noticed the development of cataracts, and observed that Romero's vision had further deteriorated. Riggs noted that Romero had not followed up on the referral to a neurologist. Riggs again did not suspect glaucoma, and told Romero to return in a year.
*120 Romero returned for another visit in May 1989, again complaining of blurred vision with his glasses. Riggs made a referral to the UCSD ophthalmology department because of Romero's cataracts and Riggs's suspicion Romero had an optic nerve problem. Again, Riggs did not suspect that Romero might have glaucoma.
During the months which followed various UCSD medical doctors and a Center optometrist determined Romero in fact had glaucoma, and he was treated for it with little success. Jury trial commenced in 1991. A nationally known authority on glaucoma, Dr. Robert Weinreb, testified that Romero was suffering from glaucoma, and that if Romero had been properly diagnosed and treated at an earlier stage, much of his vision loss could have been prevented, although damage that had taken place was now not reversible.
Other expert witnesses, including two optometrists and three more ophthalmologists, testified to the same general effect as Weinreb, while (apart from Riggs himself) only one optometrist and one ophthalmologist testified that the treatment Riggs had given Romero was proper.
The matter was submitted to the jury with directions to return verdicts on special issues. They responded "Yes" to the question, "Was the defendant negligent in the care and treatment of plaintiff?" They also, however, answered the question, "Was such negligence a legal cause of injury to the plaintiff?" with, "No."[2]
Subsequently, Romero brought various posttrial motions, including a motion for new trial on grounds of (1) misconduct by the jurors and (2) insufficiency of the evidence to support the finding of no causation. In its oral remarks after argument on the new trial motion, the court stated that in its view "there was not anything in this case that adequately [rebuts]" a finding of causation. The court also stated:
"Perhaps Mr. Romero was negligent in some way. Perhaps he was lazy. Perhaps they found any number of things. But they couldn't have found no causation, under the evidence in this case. They couldn't properly find no causation in this case. They may have thought about the smoke screen of his being referred to a neurologist and he didn't go, as being a negligent act on his part. But the fact is that the later neurological study showed there was no neurological problem. So if he had gone, it would have made no difference one way or the other. But that's something that I think the jury may have considered; that he didn't look after himself properly, et cetera.
"I'm afraid that, under my evaluation of this case, I have to grant the motion for a new trial."
*121 Later, in the written statement of decision required by Code of Civil Procedure section 657,[3] the trial court summarized its view of the matter as follows:
"The motion for new trial herein was granted because of insufficiency of the evidence to justify the verdict.
"The jury found negligence on the part of the defendant doctor, with which this Court agrees. The jury found against the plaintiff on the issue of causation and returned a defense verdict. The medical evidence was overwhelming that the early onset and the severity of the effect upon the plaintiff and his early deterioration of eyesight was a direct and proximate result of the negligent failure of the defendant doctor to diagnose and treat the plaintiff's condition. The overwhelming evidence was that, had the defendant doctor not been negligent and had proper treatment [been] instituted when it could and should have been, the probabilities are that plaintiff's failure of eyesight would have been forestalled or delayed, if not prevented. The evidence was insufficient in these particulars to support the verdict and a new trial should be granted."
STANDARD OF REVIEW
(1) "In reviewing the order granting a new trial, we apply the following rule: `The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside. [Citations.]' (Jiminez v. Sears, Roebuck & Co.(1971) 4 Cal.3d 379, 387 [93 Cal. Rptr. 769, 482 P.2d 681, 52 A.L.R.3d 92].)
*122 "Renowned California legal scholar, B.E. Witkin, describes the rule and its reason as follows: `The trial judge is familiar with the evidence, witnesses, and proceedings, and is therefore in the best position to determine whether, in view of all the circumstances, justice demands a retrial. Where error or some other ground is established, his discretion in granting a new trial is seldom reversed. The presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial, or some other ground was compelling. Review is limited to the inquiry whether there was any support for the trial judge's ruling, and the order will be reversed only on a strong affirmative showing of abuse of discretion. [Citations.]' (8 Witkin, Cal. Procedure (3d ed. 1985) Attack on Judgment in Trial Court, § 135, p. 538.)" (Sandco American, Inc. v. Notrica (1990) 216 Cal. App.3d 1495, 1506 [265 Cal. Rptr. 587].)
Otherwise stated, an order granting a new trial will not be disturbed if it adequately refers to evidence in the record to support the action taken. Here, the order adequately refers to such evidence, and we thus affirm the grant of new trial.
DISCUSSION
(2) Recognizing that there was indeed substantial evidence to support the new trial order, Center's appeal does not attempt to challenge the existence of such evidence, but is restricted to Center's assertion that the order is deficient (fatally) in form, in that the requirements for a statement of reasons[4] were not properly complied with herein, and thus the grant of new trial should be reversed and the jury verdict reinstated.[5] Center asserts case authority from both the Supreme Court and this court requires such reversal. We disagree.
Center's argument is that the trial "Court's Specification Of Reasons Fails To Satisfy Either The Letter Or The Spirit Of Code Of Civil Procedure Section 657." To support the argument, Center relies on Mercer v. Perez (1968) 68 Cal.2d 104 [65 Cal. Rptr. 315, 436 P.2d 315], and other cases which have cited to that decision. Mercer and its progeny, however, are of *123 no avail, as the circumstances of those cases are in no way comparable to those of the present case.
The new trial order under review in Mercer "recited only that `The motion for a new trial is granted. The court is of the definite opinion, after analyzing the evidence in this case, that there has been a definite miscarriage of justice. The court is of the opinion that the jury trying this case should have rendered a verdict for the plaintiffs, and against the defendants.'" (Mercer v. Perez, supra, 68 Cal.2d at p. 108.)
As the court noted in Mercer, "... in the case at bar we find on the face of the written order ... no[] clear and unmistakable expression of the court's intent ... as to the ground on which the motion was granted." (Mercer v. Perez, supra, 68 Cal.2d at p. 110.) In the case before us, by contrast, the insufficiency-of-the-evidence ground for the new trial grant is clearly stated in the order quoted above.
The major point at issue in Mercer, however, was the then-new 1965 amendment to Code of Civil Procedure section 657 requiring a statement in the order granting a new trial of the trial court's reasons, as well as the grounds, for the new trial order. (Mercer v. Perez, supra, 68 Cal.2d at pp. 111-116.) As to this requirement, in Mercer "... no reasons whatever were furnished by the trial court, either in its order or by a subsequent specification in writing."[6] (Id. at p. 116.)
Again, on this central and dispositive issue the case before us is wholly distinguishable from Mercer. Here, as quoted ante, the trial judge clearly stated not only the ground (insufficiency of the evidence), but the reason for granting a new trial on the stated ground: "The medical evidence was overwhelming that the early onset and the severity of the effect upon the plaintiff and his early deterioration of eyesight was a direct and proximate result of the negligent failure of the defendant doctor to diagnose and treat the plaintiff's condition."[7]
*124 Center also cites us to our statement in Bigboy v. County of San Diego (1984) 154 Cal. App.3d 397, 404 [201 Cal. Rptr. 226], that "[i]t is helpful if the [trial] court declares what witnesses it believed." The citation is unhelpful to Center. As Bigboy noted, after a survey of several cases in which the new trial orders were affirmed, "[e]ach of these cases specifically directs the appellate court's attention to some aspect of the record which ... convinces the trial judge the jury clearly should have reached a different decision." (Id. at p. 405.)
In this case, of course, the trial court's stated reasons for granting the new trial more than adequately "directs the appellate court's attention" to the aspects of the record which support the order; here, the "overwhelming" medical evidence of six experts as to the existence of causation in this case. No more is reasonably or sensibly to be required of a trial court.
"In sum, the appeal from an order granting a new trial depends upon the sufficiency of the reasons specified by the trial court. Whether these reasons are sufficient depends in turn upon whether there is a substantial basis in the record for the trial judge's decision. [Citations.]" (Bigboy v. County of San Diego, supra, 154 Cal. App.3d at pp. 405-406.)
In Bigboy we held that "... it is a futile effort to search the judge's statement of reasons for granting a new trial for any reference to any portion of the evidence that would ... guide an appellate court in determining whether the `jury clearly should have reached a different verdict.'" (Bigboy v. County of San Diego, supra, 154 Cal. App.3d at p. 406.) The statement of reasons was thus "insufficient as a matter of law." (Id. at p. 408.) In the case before us, by contrast, the evidence relied upon and referred to in the order (expert medical testimony on the issue of causation) is fully adequate both to guide our review and to supply a substantial basis for the order.
The final sentence of Code of Civil Procedure section 657 provides that an order granting a new trial on the ground of insufficiency of the evidence to support the verdict, as here, "shall be reversed as to such ground only if there is no substantial basis in the record for any of [the specified] reasons." In this case, "[w]e conclude there was a reasonable basis for the trial court's order granting a new trial under Code of Civil Procedure section 657.... Thus, under the test of the Jiminez case, supra, 4 Cal.3d 379, 387, the order will not be set aside." (Sandco American, Inc. v. Notrica, supra, 216 Cal. App.3d at p. 1509.)
*125 DISPOSITION
The judgment (order granting new trial) is affirmed. Respondent to recover costs on appeal.
Kremer, P.J., and Todd, J., concurred.
NOTES
[1] Because there is sufficient evidence to support the jury's verdict and the order granting a new trial as well, we recite the facts only briefly, as the case involves no controversy over the evidence, but over the legal sufficiency of the order made below.
[2] The vote on each issue was nine to three.
[3] Code of Civil Procedure section 657 provides in relevant part: "The verdict may be vacated ... and a new ... trial granted ... for any of the following causes [i.e., grounds], materially affecting the substantial rights of [a] party: ... [¶] 6. Insufficiency of the evidence to justify the verdict."
In a later paragraph section 657 also requires, in addition to a specification of grounds, a statement of reasons as well: "If an order granting [a new trial] motion does not contain [a] specification of reasons, the court must, within 10 days after filing such order ... file such specification of reasons in writing with the clerk."
In the last paragraph section 657 states: "[T]he order shall not be affirmed upon the ground of the insufficiency of the evidence to justify the verdict ... unless such ground is stated in the order granting the motion."
[4] See ante, footnote 1.
[5] Romero also asserts that even if the order before us is found to be deficient, other error supports a grant of new trial. Center counters by asserting the absence of any such other error. We need not and do not, however, address these matters, for the reasons which follow.
[6] Because the statutory requirements had not been observed, the Mercer court reversed the grant of a new trial. (Mercer v. Perez, supra, 68 Cal.2d at p. 108.) The court then proceeded, however, to also reverse the original judgment, in part relying on the trial court's opinion that there had been a miscarriage of justice in the case. (Id. at pp. 124-127.)
[7] The detailed statement of reasons in the record before us also distinguishes this case from other cases cited by Center, including Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 62 [107 Cal. Rptr. 45, 507 P.2d 653, 94 A.L.R.3d 1059] ("... the `verdict is excessive, that it is not sustained by the evidence' is ... a statement of ultimate fact"); Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 698 [106 Cal. Rptr. 1, 505 P.2d 193] ("`the District completely and adequately discharged any obligation it had in the maintenance of the basin and dam'"); and also Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 364 [90 Cal. Rptr. 592, 475 P.2d 864] ("... the specification of reasons merely recited that ... the defendant was not negligent"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263189/ | 27 F.Supp. 785 (1939)
THE ITALIA.
GITTO et al.
v.
SOCIETÁ ANONIMA DI NAVIGAZIONE, GENOVA.
District Court, E. D. New York.
April 25, 1939.
*786 William A. Blank, of Brooklyn, N. Y., for plaintiffs.
Dorsey & Flynn, of New York City, for defendant.
MOSCOWITZ, District Judge.
This is a motion by the defendant under Rule 35 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, to have the infant plaintiff submit to the taking of X-ray pictures by a physician named by the defendant. The plaintiff objects to defendant's choice of physician and requests that the Court appoint an impartial physician. The issue is thus presented whether a defendant seeking a physical examination under Rule 35 has the privilege of naming his own physician.
Rule 35(a) of the Rules of Civil Procedure provides: "Order for Examination. In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending may order him to submit to a physical or mental examination by a physician. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made."
An examination of the Rule makes it readily apparent that it rests within the discretion of the Court whether a physical examination be granted. The Rule is phrased in terms of "may", not "must" and "shall". The comments of the Supreme Court Advisors confirm this interpretation that the Court exercises full discretion in regulating and controlling physical and mental examinations. See Federal Rules of Civil Procedure and Proceedings of American Bar Association Institute (Cleveland) p. 289.
With such a wide range of discretion placed in the Court it is obvious that a defendant seeking a physical examination of a plaintiff has no absolute right to the choice of his own physician. In fact the Advisors state "the examining physician in this case becomes essentially an officer of the court ordering the examination." See Proceedings of American Bar Association Institute (Washington) p. 102. Thus, even after determining that a physical or mental examination is advisable the power still rests with the Court to determine the physician who shall conduct the examination.
It naturally rests within the discretion of the Court to appoint the physician chosen by the defendant, if it is felt that the interests of justice will best be served in that manner. In fact, the provisions of Rule 35(b)(1) appear to point in the direction of giving the defendant the same opportunities of developing his own evidence as are available to the plaintiff. Therefore, where no serious objection arises, it is probably best for the Court to *787 appoint the physician chosen by the defendant.
Here, however, the plaintiff has made strenuous objection to defendant's choice of physician. Under the circumstances, without reflecting in any manner upon the physician in question, it is best that another physician be appointed.
If the parties can select a physician mutually agreeable, his name may be submitted. If not the Court will make its own choice.
Settle order on notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263199/ | 27 F.Supp. 138 (1939)
CRUM
v.
APPALACHIAN ELECTRIC POWER CO. et al.
No. 15.
District Court, S. D. West Virginia, at Huntington.
April 3, 1939.
E. A. Marshall, of Huntington, W. Va. (Fitzpatrick, Brown & Davis, of Huntington, W. Va., on the brief), for Winisle Coal Co.
N. D. Waugh and Mark T. Valentine, both of Logan, W. Va., for Appalachian Electric Power Co.
R. H. Casto, of Logan, W. Va., for Crum.
McCLINTIC, District Judge.
Plaintiff brought suit in the Circuit Court of the County of Logan, in the Southern District of West Virginia, against the Appalachian Electric Power Company for damages for the death of Jack Crum, alleging negligence on the part of the defendant. The defendant, Power Company, by reason of diversity of citizenship (it being a corporation of the State of Virginia), removed the case to the District Court of the United States.
Then the defendant and third-party plaintiff, Power Company, before the service of its answer, moved ex parte for leave as third-party plaintiff to serve a summons and complaint upon the Winisle Coal Company, not a party to the original action, which was or may be liable to it or to the plaintiff for all or part of the plaintiff's claim against it.
The third-party defendant was duly served with the process and complaint, and it appeared and moved to dismiss the action against it on the ground that it, the Winisle Coal Company, was a citizen of the State of West Virginia, of which also the plaintiff was a citizen, and that there was no diversity of citizenship that would permit it to be made the third-party defendant.
The Winisle Coal Company claimed that under Rule 8 and under Rule 82 of the new Federal Court Rules, 28 U.S.C.A. following section 723c, there was no jurisdiction in this court to entertain a claim in this action against it. The Power Company claimed that under Rule 14 it was not required that the third-party defendant be a citizen of another state from the plaintiff; that the controversy primarily, as to liability for the death of Jack Crum, lay between the Power Company and the Coal Company, although it was admitted that if the plaintiff should recover judgment against the defendants, the judgment would be against both the Power Company and the Coal Company. The allegations of the third-party plaintiff complaint were to the effect that the Power Company was not negligent and that the Coal Company was negligent, and its negligence was the primary *139 cause of the death of the decedent, Jack Crum.
The Power Company has wires running into the property of the Coal Company and furnishes power to the Coal Company for its use under the conditions of a contract between them. It further alleged that the Coal Company hired a boy fifteen years old, contrary to the statutes of the State of West Virginia, Code W.Va.1931, 21-6-2, and with full control over him put him in a dangerous place, and that his death was caused by the act of the Coal Company.
The question for consideration is whether the motion of the Coal Company to dismiss should be sustained or overruled.
Without going into a long discussion of the case, I can only say that the question arising under Rule 14 is a decidedly important one, and will require the final decision of the last court to find exactly what it means. It was argued on behalf of the Power Company that the action was properly in the Federal Court, and that the bringing in of the Coal Company as a third-party defendant was only ancillary to the main action and did not necessitate jurisdictional or venue requirements.
On examination of official form 22, it seems to me that the Committee (that formulated the rules) and the Supreme Court adopted this view, since the form for a third-party complaint, unlike the forms for original complaints, omits any allegation of jurisdiction.
This idea seems to have been strongly urged by commentators, especially in the Yale Law Journal, 44 Yale L.J. 1291, 1322; 45 Yale L.J. 393, 421. See Moore's Federal Practice, Volume 1, pages 779-782.
There is a class of actions where a railway company is sued, along with the engineer and other employees, for damages because of death or injury to some person by the operation of a train, and there is shown by the complaint (formerly a declaration) a separable controversy between the plaintiff and the railway company, and the cause is removed to the Federal Court on such claim, the whole suit is transferred there, although the engineer and other defendants are citizens of the same state as the plaintiff.
It seems to me that there is a certain analogy between this class of cases and the one here under Rule 14. In an examination of the notes to Rule 14 contained in the April, 1937 edition of the Report of the Advisory Committee, the following language is used. "Third-party impleader is in some aspects a modern innovation in law and equity although well known in admiralty. Because of its many advantages a liberal procedure with respect to it has developed in England, in the federal admiralty courts, and in some American state jurisdictions." See Lowry & Co., Inc. v. National City Bank of New York, D.C., 28 F.2d 895; and Yellow Cab Co. of Philadelphia v. Rodgers, 3 Cir., 61 F.2d 729.
If the narrow construction claimed by the Coal Company is put upon Rule 14, it will be found that in the most numerous class of cases in federal jurisdiction, the rule will be absolutely useless.
Therefore, I overrule the motion to dismiss the Coal Company as a third-party defendant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263207/ | 27 F.Supp. 290 (1939)
KEYSTONE MACARONI MFG. CO.
v.
V. ARENA & SONS, Inc.
No. 10057.
District Court, E. D. Pennsylvania.
February 27, 1939.
*291 Mercer B. Tate, Jr., of Philadelphia, Pa., for plaintiff.
S. Thomas Bulfamonte, of Norristown, Pa., for defendant.
WELSH, District Judge.
The plaintiff, Keystone Macaroni Manufacturing Company, filed its bill of complaint to enjoin the defendant, V. Arena & Sons, Inc., from using a part of its trade mark which is alleged to be an infringement of plaintiff's trade mark. Plaintiff also avers that the use of such mark constitutes unfair competition, and seeks an accounting and damages.
Both parties to the suit are Pennsylvania corporations, having their place of business at Lebanon and Norristown respectively, and are engaged in the manufacture and sale of spaghetti and similar products. The market of both concerns consists of the eastern seaboard states, with the largest distribution in and about Philadelphia. The plaintiff's business was begun in 1916 as a partnership. In 1919 one of the partners withdrew and the business was carried on as an individual proprietorship by the remaining partner until 1922, when it was incorporated. From the beginning of the business, plaintiff and its predecessors have used as their trade mark the name "San Giorgio" together with the picture of an armored knight mounted on a rearing horse and in the act of killing a dragon with his spear, the picture being surrounded by concentric circles to form a medallion. The plaintiff's predecessors registered the name and trade mark in the Patent Office in 1920. In 1924 the defendant adopted as its trade mark and name "Conte Luna" with a picture of a full moon between the words and also a picture of an armored knight grasping a spear and mounted on a rearing horse. About 1930 the defendant encircled the figure of the mounted knight in concentric circles forming a medallion which it applied to its packages in the same manner as the one used by the plaintiff. It is alleged that defendant's medallion is deceptively similar to that of the plaintiff and therefore an infringment of the registered trade mark.
The parties used their respective trade names and trade marks without any conflict until about 1934, during which period they did an extensive business in the same territory. About that time the plaintiff undertook to promote its sales by offering premiums for the return of the medallions on its packages. In the course of redeeming *292 the medallions for premiums, it discovered that many of those taken from the defendant's packages were also offered, and from that fact the plaintiff concluded that the similarity of the defendant's mark was causing a confusion of its goods with the goods of the defendant. In 1935 the plaintiff formally protested to the defendant against the use of the defendant's mark but the defendant, upon the advice of counsel, took the position that the use of its mark did not constitute an infringement and it declined to desist. This action followed in 1938.
An examination of both marks shows that they are similar in that the dominant figure in each is an armored knight grasping a spear and mounted on a rearing horse shown in a right side view. These figures are surrounded by two concentric circles of the same relative size and distance from the common center which enclose the figures in approximately the same relative position. The colors on the marks used by both litigants vary somewhat, depending upon the number of colors used and the size applied on the different packages. The marks differ in a number of details. The plaintiff's knight is partly enshrouded with a cloak which obscures some of the background. He is engaged in slaying a dragon beneath the horse by means of a spear held in both hands. The defendant's mark includes a background showing a castle, water and other scenery, beneath the horse is the brink of a cliff, and the knight is holding his spear aloft with his left hand. These are the essential differences in detail which distinguish the respective medallions, but they are not readily apparent upon a hasty glance nor would they be detected upon examination at a distance. The principal features and consequently the general impression of both marks is of a medallion containing an armored knight on a rearing horse, and, without attention being called to the differences of detail, it seems doubtful that an ordinary buyer, guided by his recollection of a mark rather than a name, might readily be confused. We can conceive that a person, carrying in mind the picture of a medallion with a mounted knight, and relying upon the memory of a package, might easily forget the details of the respective pictures and consequently select one brand instead of the other, and especially if he had not memorized the brand names or associated them with the respective manufacturers.
Evidence of actual confusion was confined to proof that the plaintiff's customers, in presenting medallions for redemption, have included among them many of the defendant's medallions. Such evidence establishes the probability of confusion and is admissible for that purpose, but it is not sufficiently persuasive to justify a definite conclusion that the goods of the parties are actually confused by the use of the similar marks. The presentation of defendant's medallions might indicate a desire on the part of some customers to fraudulently obtain premiums for medallions which they know are actually not redeemable, or it might mean that certain customers believe "Conte Luna" and "San Giorgio" brands are put out by the same manufacturer or that they make their choice by trade mark rather than by name, but we cannot say with assurance that confusion existed any more than we can say that actual fraud was intended. The brand names and other elements of the trade marks are so distinctive as to eliminate confusion in the minds of reasonably prudent buyers, especially those who purchase by name, but as pointed out by both parties, many users of these products are of foreign birth, and it seems desirable to prevent possible confusion in their minds as well as in the minds of others who might be induced to make their choice by mere visual impression of a symbol. It seems proper to conclude that confusion is possible and probable, and, although it is unlikely that the confusion is general, the possibility or probability of confusion resulting from the use of the similar trade marks should be eliminated in the interest of fair dealing.
The more important questions presented are, first, whether the plaintiff is such an owner of its trade mark as to be entitled to the protection afforded by the Trade Mark Act, and second, whether the use of the mark by the defendant amounts to unfair competition such as might be restrained by this court. The Trade Mark Act of 1905, 15 U.S.C.A. § 81 et seq., the purpose of which is to aid legitimate commerce by preventing confusion of goods either as to origin or sale, provides that the registration of a trade mark shall be prima facie evidence of the registrant's ownership of the mark, and when a similar mark is applied to other like products, such application and use may be enjoined and damages may be recovered. We think that the marks in the present case are so *293 deceptively similar that if the Act applies, the injunction prayed for should be granted. The Act permits the registration of a lawful trade mark by the applicant user and provides that the trade mark may be assigned in connection with the transfer for the good will of the business in which the mark is used.
"Such assignment must be by an instrument in writing and duly acknowledged according to the laws of the country or State in which the same is executed; any such assignment shall be void as against any subsequent purchaser for a valuable consideration, without notice, unless it is recorded in the Patent Office within three months from date thereof. The commissioner shall keep a record of such assignments." (Sec. 10, 15 U.S.C.A. § 90.)
Under this provision the plaintiff, in order to be entitled to the remedies provided by the Act, must prove its title by assignments from the original registrants which conform with the requirements specified. The defendant contends that the plaintiff has not established such ownership and therefore is not entitled to the benefits of the Act by reason of the following circumstances: The trade mark was registered in 1920 upon the application of the partners, formerly trading as the Keystone Macaroni Company, made in 1919. Thereafter one of the partners withdrew and assigned his interest in the firm to the remaining partner. The assignment was not acknowledged. In 1922 the remaining partner then operating as an individual proprietorship incorporated his business and transferred all of the business assets including the trade mark to the corporation. This assignment or transfer likewise was not acknowledged. Therefore if the rights of the plaintiff are dependent upon the title to the trade mark acquired under these assignments, not acknowledged as required by the Act, we must deny the plaintiff the remedy sought. It has been held that title to the trade mark is indispensable to a good cause of action under the Trade Mark Act, Shaver v. Heller & Merz Co., 8 Cir., 108 F. 821, 65 L.R.A. 878, and that where the assignment of a trade mark has not been properly acknowledged in accordance with the requirements of the Act, the proof of the plaintiff's title, acquired by the assignment, has not been established. Perry v. American Hecolite Denture Corp., 8 Cir., 78 F.2d 556. So far as this action is a statutory one involving the infringement of a registered trade mark, we feel that the provisions of the Act are mandatory and must be complied with before the plaintiff is entitled to the remedies therein prescribed.
It appears, however, that the plaintiff and its predecessors have continuously used and claimed ownership of their trade mark since 1916 and that the present ownership is evidenced by the succession of business forms and assignments as above recited. These facts clearly establish the right of the plaintiff to claim its symbol as a common law trade mark. Trade marks and the rights of the owners have always been recognized at common law regardless of the existence or provisions of the registration act. The certificate of registration is proof of adoption but is not intended to be conclusive as to the validity of the mark, and the fact of registration or non-registration does not affect the jurisdiction of the court to determine the validity of the acts of appropriation and use. Bisceglia Bros. Corp. v. Fruit Industries, Ltd., D.C., 20 F.Supp. 564. Exclusive right to the use of a trade mark is founded upon priority of appropriation (McLean v. Fleming, 96 U.S. 245, 24 L.Ed. 828), exists as an appurtenance to a particular business with which it is connected and is established by the use rather than by its mere adoption or registration.
The defendant contends, however, that since the jurisdiction of this court was acquired by virtue of an alleged infringement of a federal trade mark, and the plaintiff has failed to prove technical title thereto, this court is without jurisdiction to determine the issue as to unfair competition inasmuch as there is no diversity of citizenship. In support of that contention defendant relies upon the authority of Perry v. American Hecolite Denture Corp., 8 Cir., 78 F.2d 556 which holds that a plaintiff who has failed to establish his title by an acknowledged assignment of a registered trade mark is not entitled to pursue the remedies provided in the Act. We note, however, that there the claimant's only right to the trade mark in question was acquired by virtue of the unacknowledged assignment, and the case does not control the issue of jurisdiction or redress where common law rights to a trade mark are involved. In the present case the plaintiff's proprietorship in the trade mark *294 in question is not based solely upon the technical validity of its assignments but is established by prior adoption and use over a period of many years. It would not seem logical or equitable for the Court to decline jurisdiction of one issue before it, merely because one of the parties has failed to support his position with regard to another. It is well settled that where a federal court has properly taken jurisdiction of an issue first presented, and later it is discovered that the basis of the jurisdiction cannot be sustained, the court may continue to retain jurisdiction for the purpose of determining the other issues involved in the litigation. In other words, where the complaint is based upon an alleged infringement of a trade mark registered under the Federal Statutes, and in the course of the trial it is found that the trade mark or its registration is invalid, the court might properly continue jurisdiction of the case for the purpose of determining the issue as to unfair competition. Hurn et al. v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; Leschen & Sons Rope Co. v. Broderick, 201 U.S. 166, 26 S.Ct. 425, 50 L.Ed. 710; Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195. Under these authorities we assume that our jurisdiction continues.
Prior discussion has directed attention to the similarity of the respective trade marks, the probability of confusion of products and their origin, and the rights of the plaintiff to protect its trade mark. Whether a remedy is to be granted and the extent of the redress requires some further comment on the law involved. The law of trade marks is part of the law of unfair competition and there are many cases involving the unlawful use of trade marks by persons other than those entitled thereto by prior use or registration. The wrong usually complained of is the sale or possible sale of the goods of one producer for those of another with the attendant loss of business by the persons entitled to it. Either actual or reasonably probable deception or confusion is contemplated and regard must be given to the class of persons who purchase the articles and to the circumstances ordinarily attending their purchase. N. K. Fairbank Co. v. R. W. Bell Mfg. Co., 2 Cir., 77 F. 869. From the circumstance of this case, we have found that there is a reasonable probability not merely speculative, of confusion and deception, and that the laws as to unfair competition are applicable. The similarity of adopted trade mark characters, together with the probability of confusion, is sufficient to justify the granting of relief even though the marks differ in detail. Pinaud, Inc. v. Huebschman, D.C., 27 F.2d 531-538; Jantzen Knitting Mills v. Spokane Knitting Mills, Inc., D.C., 44 F.2d 656; Gordon's Dry Gin Co. Ltd. v. Eddy & Fisher Co., D.C., 246 F. 954. The similarity of the respective marks of the plaintiff and defendant justify the granting of an injunction and damages unless, as contended by the defendant, the plaintiff has been guilty of laches in pursuing its remedy.
No efforts were made by the plaintiff to prevent the defendant from using its similar trade mark until the possible confusion was detected through the return of medallions for the premiums offered. Formal protest was made in July, 1935, and the rights of the plaintiff were promptly denied by the defendant. The suit, however, was not brought until 1938, a period longer than might be expected of a plaintiff vigilantly interested in protecting his rights. During that time defendant has by virtue of his belief in its legal position further extended its business, possibly with the conviction that the plaintiff had recognized the validity of its right to the mark in question. It would seem to us that, once having raised the issue of infringement, it was incumbent upon the plaintiff to pursue its remedy promptly, and the delay of almost three years before bringing suit is not the degree of vigilance which would entitle plaintiff to the full relief available under the law. Where two competing parties claim rights to the same or similar trade marks, priority of appropriation determines the question of which mark is entitled to protection (Amoskeag Mfg. Co. v. Trainer, 101 U.S. 51, 25 L.Ed. 993), but where the defendant used a similar mark or name with knowledge of the plaintiff's claim to the same, and the plaintiff delays or acquiesces in the unlawful use, the plaintiff may be entitled to injunctive relief but not to an accounting and damages. McLean v. Fleming, 96 U.S. 245, 24 L.Ed. 828; Menendez v. Holt, 128 U.S. 514, 9 S.Ct. 143, 32 L.Ed. 526. Injunctive relief may be properly granted without requiring the court to decree an accounting and damages (Mosler v. Lurie, 2 Cir., 209 F. 364, 126 C. C.A. 290), and, as in the present case, an *295 accounting of profits will not be given where the unlawful use of the trade mark has been without any wrongful intent to defraud the plaintiff or deceive the public. Straus v. Notaseme Hosiery Co., 240 U.S. 179, 36 S.Ct. 288, 60 L.Ed. 590; Saxlehner v. Siegel-Cooper Co., 179 U.S. 42, 21 S.Ct. 16, 44 L.Ed. 77.
Considering all of the circumstances and the equities of the parties, we are of the opinion that the defendant's use of that part of its trade mark which is similar to the plaintiff's mark should be restrained, but that no damages or accounting of profits should be decreed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263212/ | 27 F.Supp. 216 (1939)
FARR (GRESSITT, Intervener)
v.
O'KEEFE, Adjutant General of Mississippi.
No. 63.
District Court, S. D. Mississippi, Jackson Division.
March 23, 1939.
Jaap & Higgins, of Jackson, Miss., for complainant.
Greek L. Rice, Atty. Gen., of Mississippi, for defendant.
MIZE, District Judge.
This matter is before the court upon an original bill by Dick Farr seeking a preliminary restraining order against the defendant, and upon the intervention petition of R. B. Gressitt invoking the aid of the court of equity to enjoin the defendant from destroying slot machines owned by the intervenor and attacking the constitutionality of Chapter 353 of the Laws of Mississippi 1938, and the intervening petition prays that a three-judge court be convened for the purpose of hearing the matter.
The convening of a three-judge court is governed by Section 380 of Title 28 U.S.C.A. The district judge to whom the petition is presented must first determine, before going to the trouble and expense of convening such a court, whether the relief sought could be granted. If the relief sought could be granted, it is the duty of the district court to convene the three-judge court, but if it is apparent that the complainant seeks relief to which he is not entitled, then there is an insuperable impediment to his remedy and the district judge need go no further. Ex parte Hobbs, 280 U.S. 168, 50 St.Ct. 83, 74 L. Ed. 353; Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. As held in the Poresky case, the district judge is authorized to dismiss for the want of jurisdiction when the question involved in the complaint does not present sufficient facts showing that there is real substance to his *217 claim. See, also, Stratton v. St. Louis Southwestern Ry. Co., 282 U.S. 10, 51 S. Ct. 8, 75 L.Ed. 135.
The original petition of Dick Farr did not present a question showing an attack upon the constitutionality of the act above referred to. The intervening petition of R. B. Gressitt shows upon its face that he is engaged in an unlawful business and seeks the aid of the court of equity to assist him in the continuance of this business. The law is so well settled that a court of equity will not furnish its aid to anyone in the commission of crime nor entertain a bill where the party does not come into court with clean hands that it needs the citation of no authorities.
The particular act complained of is one for the suppression of gambling. The police power of the state to suppress gambling is practically unrestrained. Ah Sin v. Wittman, 198 U.S. 500, 25 S.Ct. 756, 49 L.Ed. 1142; Marvin v. Trout, 199 U.S. 212, 26 S.Ct. 31, 50 L.Ed. 157. It has been declared by the Supreme Court of Mississippi that slot machines are gambling devices and prior to the present act their operation was prohibited. Crippen v. Mint Sales Company, 139 Miss. 87, 103 So. 503; Atkins v. State, 178 Miss. 804, 174 So. 52; Redd v. Simmons, 175 Miss. 402, 167 So. 65. By virtue of its police powers a state is permitted to declare that certain types of property shall have no property rights, and this announcement of the law is upheld by practically every state in the Union. All property or equipment that is used for gambling purposes may be confiscated and there is no property right in such property. See Harvie v. Heise, 150 S.C. 277, 148 S.E. 66. The appeal in this case was dismissed by the Supreme Court of the United States, 279 U.S. 822, 49 S.Ct. 351, 73 L.Ed. 976.
It is true that the federal courts may enjoin local peace officers from enforcing an illegal statute and destroying property when the acts are so exceptional and clear that it is necessary to afford adequate protection of constitutional rights. Terrace v. Thompson, 263 U.S. 197, 44 S. Ct. 15, 68 L.Ed. 255; Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146. However, it is equally well settled that unless a danger is immediate, the loss irreparable and the plaintiff is not engaged in any illegal business himself in which he is seeking the protection of the national courts, the national courts will not interfere. In the protection of his rights therein the state courts are usually adequate to determine his rights, as he has an opportunity for ultimate review by the Supreme Court of the United States. Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927.
It is unnecessary to cite further authorities, but under the foregoing authorities and the authorities of Snyder v. City of Alliance, 41 Ohio App. 48, 179 N.E. 426; Howle v. City of Birmingham, 229 Ala. 666, 159 So. 206; Gaither v. Cate, 156 Md. 254, 144 A. 239; White v. Hesse, 60 App.D.C. 106, 48 F.2d 1018; Chambers v. Bachtel, 5 Cir., 55 F.2d 851; Bradford v. Hurt, 5 Cir., 84 F.2d 722; Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322, the temporary restraining order is denied and an order will be entered accordingly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263215/ | 240 P.3d 945 (2010)
In the Matter of Carlos Dupree ROMIOUS, a/k/a D. Carlos Romious, Respondent.
No. 104,200.
Supreme Court of Kansas.
October 8, 2010.
*946 Stanton A. Hazlett, disciplinary administrator, argued the cause, and Frank D. Diehl, deputy disciplinary administrator, was with him on the formal complaint for petitioner.
No appearance by respondent.
ORIGINAL PROCEEDING IN DISCIPLINE
PER CURIAM:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Carlos Dupree Romious, a/k/a D. Carlos Romious, of Kansas City, Missouri, an attorney admitted to the practice of law in Kansas in 1997.
On September 11, 2009, the office of the Disciplinary Administrator filed a formal complaint against the respondent, alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent failed to file an answer to the formal complaint. A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on November 18, 2009. The respondent failed to appear at this hearing; however, he requested a continuance on the evening of November 17, 2009, by email to a special investigator to the Disciplinary Administrator, saying he was out of the state and could not afford to travel to Kansas. The hearing panel found that the respondent did not submit a timely request for a continuance and that good cause did not exist for a continuance.
The hearing panel determined that respondent violated KRPC 1.1 (2009 Kan. Ct. R. Annot. 410) (competence); 1.5(a) (2009 Kan. Ct. R. Annot. 460) (fees); 3.4(c) (2009 Kan. Ct. R. Annot. 552) (fairness to opposing party and counsel); 3.5(d) (2009 Kan. Ct. R. Annot. 558) (engaging in undignified or discourteous conduct degrading to a tribunal); 4.4(a) (2009 Kan. Ct. R. Annot. 572) (respect for rights of third persons); 8.4(b) (2009 Kan. Ct. R. Annot. 602) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer); 8.4(c) (engaging in conduct involving misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law); and Kansas Supreme Court Rule 211(b) (2009 Kan. Ct. R. Annot. 321) (failure to file answer in disciplinary proceeding). Upon conclusion of the *947 hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:
"FINDINGS OF FACT
. . . .
"2. On October 8, 2008, the Kansas Supreme Court suspended the Respondent's license to practice law for failing to comply with the annual administrative requirements to maintain a law license. The Respondent's license remains suspended.
"Count I DA10509
"Municipal Court of Shawnee, Kansas, Conduct
3. The Respondent represented Christopher D. Falkner in a traffic case pending in the Shawnee, Kansas, Municipal Court, case number T08197971.
"4. On April 16, 2008, after the docket had been concluded in the Municipal Court of Shawnee, Kansas, the Respondent approached the Municipal Court Clerk's window and demanded to see the prosecutor, Joshua Allen. The Respondent told the clerk to tell the prosecutor to get his `ass' in the courtroom.
"5. Mr. Allen met with the Respondent in the courtroom. After the meeting, the Respondent returned to the Municipal Court Clerk's window. Despite the fact that the clerks were already assisting the Respondent, the Respondent repeatedly rang the service door bell.
"6. On April 21, 2008, the Respondent returned to the Municipal Court of Shawnee, Kansas. The Respondent told the clerk that he wanted to `fucking' file his paperwork. The Respondent presented a pleading entitled, `Defendant's Application for Change of Judge' in Mr. Falkner's case. Tammy Manthei, clerk, told the Respondent that the clerks were working on it.
"7. The Respondent called Ms. Manthei a `fucking bitch.' The Respondent pointed his finger at Ms. Manthei, hitting the glass. The Respondent told Ms. Manthei that she better do what he told her to do. The Respondent proceeded to tell Ms. Manthei that he is smarter than anyone in the clerk's office. The Respondent repeatedly pointed at the clerks, calling them `fucking bitches.' The Respondent told Ms. Manthei to get her `ass' in there to get his signed motion. Ms. Manthei testified she had never experienced conduct like the Respondent's in her eight years in the municipal court office. As a result of the Respondent's conduct, someone from the clerk's office telephoned the police department. The police did not arrive until the time when the Respondent was driving away in his vehicle.
"8. The Defendant's Application for Change of Judge contained several defects. First, the Respondent failed to include any reason for the Judge to recuse himself. Second, despite the fact that the application was being made in behalf of Mr. Falkner, the affidavit was titled `Affidavit of Defendant Jonathan Johnson.' Finally, while the affidavit indicates that it was subscribed and sworn to before a Notary Public, there is no signature line nor a signature from a Notary Public.
"9. The judge summarily denied the Defendant's Application for Change of Judge filed by the Respondent.
"10. As a result of the Respondent's conduct in the Municipal Court, on May 1, 2008, the Johnson County District Attorney's office charged the Respondent with disorderly conduct. During the pendency of the case, the Respondent failed to appear in court as ordered on three occasions. The Respondent failed to appear May 16, 2008, and April 10, 2009. In October, 2009, Ms. Manthei and other witnesses appeared in court for trial. The Respondent, however, failed to appear. The trial was continued to November 25, 2009. [Footnote: According to the Johnson County District Court website, on November 25, 2009, an attorney appeared in behalf of the Respondent. The attorney entered a plea of guilty in behalf of the Respondent. The court sentenced the Respondent to serve four days in the county jail. The Respondent received credit for time served and the case was closed.]
"Count II DA10509
*948 "Federal Court Conduct
"11. On May 6, 2008, the Respondent entered the north door of the United States Courthouse at 500 State Avenue, Kansas City, Kansas. At a station manned by court security officers inside the doorway, the Respondent removed items from his pockets, placed the items in a tray, and walked through the magnetometer. The alarm on the magnetometer sounded.
"12. A court security officer told the Respondent to return to the entry side of the magnetometer, remove his wristwatch, and walk through the magnetometer again. The Respondent refused. The Respondent became very loud and began using profane language to the court security officers.
"13. The court security officers repeatedly told the Respondent to return to the entry side of the magnetometer or leave the building. The Respondent continued to refuse[] to comply and began shouting profanities at the court security officers. Despite the fact that the Respondent had not been cleared by the court security officers, the Respondent started walking toward the elevators. The court security officers told the Respondent to stop and to return to the entry side of the magnetometer. The Respondent did not stop. The court security officers repeated in a louder voice that the Respondent should stop and return to the security area. The Respondent stopped walking toward the elevators but continued using profane language toward the court security officers.
"14. The court security officers called the United States Marshal's Office for assistance. Several Deputy United States Marshals responded, including Deputy Marshal Sean Franklin.
"15. Deputy Marshal Franklin told the Respondent to leave the courthouse. The Respondent refused to do so. The Respondent told Deputy Marshal Franklin that he would have to move him. Deputy Marshal Franklin put a hand on the Respondent and the Respondent shoved Deputy Marshal Franklin. Deputy Marshal Franklin took the Respondent to the floor. The struggle between Deputy Marshal Franklin and the Respondent continued, knocking over the magnetometer and going through a set of doors. Eventually, the Respondent was placed under arrest. Deputy Marshal Franklin received minor injuries in the incident.
"16. On May 14, 2008, a grand jury of the United States District Court for the District of Kansas indicted the Respondent in case number 08-20056CM in a three count complaint with (1) failing to comply with official signs of a prohibitory, regulatory, and directory nature and with the lawful direction of Federal police officer, (2) exhibiting disorderly conduct that created loud and unusual noise and a nuisance and unreasonably obstructed the use of an entrance, foyer, and lobby of the United States Courthouse, and (3) resisting, opposing, impeding, and interfering with Sean Franklin and Steve Makarunis in the performance of their official duties. The first two charges were misdemeanors and the third charge was a felony.
"17. On December 18, 2008, the Respondent entered into a plea agreement. Pursuant to the plea agreement, the Respondent entered a plea of guilty to count one of the indictment. The Court sentenced the Respondent to 30 days and gave credit to the Respondent for time served.
"Count III DA10520
"Representation of Alta V. Vaughn, Sr.
"18. The Respondent represented Alta V. Vaughn, Sr. in the Circuit Court of Green County, Missouri, case number 31106CF0085. During the period of representation, the Respondent engaged in abusive and bizarre behavior.
"19. On April 24, 2008, the Respondent was in a Green County, Missouri, courtroom. During a hearing on a motion to suppress in a case which the Respondent was not involved, the Respondent loudly and rudely interrupted the proceeding. The Respondent accused the court of having a pattern and history of scheduling the Respondent's cases at the end of the docket.
*949 "20. On June 16, 2008, June 17, 2008, and June 18, 2008, the court in Green County, Missouri held a pre-hearing conference in the Vaughn case. Throughout the hearing, the Respondent made loud and rude statements.
"21. On June 16, 2008, the Respondent asserted that the proceeding was a `joke' and a `travesty.' The Respondent accused the judge of `apparent reckless, bias, prejudice, and potentially racist activity and conduct.' The Respondent told the judge that the `proceeding was a joke' and that the judge was `going to sit [his] ass up there.' The Respondent accused the court of `corrupting and stinking up the case' and `corrupting the system.' Finally, during the hearing on June 16, 2008, the Respondent repeatedly spoke over the judge and opposing counsel in a loud, rude, and angry manner. The Respondent refused to stop talking when so ordered by the judge.
"22. On June 17, 2008, the Respondent accused the court of `being anything but impartial, justiciable, and anything but incompetent.' The Respondent wadded up a copy of a pleading filed by opposing counsel, threw it to the floor, and, using his shoe, ground it into the floor. When the court ordered the Respondent to appear the following morning at 8:00 a.m., the Respondent refused to appear. The Respondent told the court `to not expect him to be here' and that he should not `hold [his] breath.' Again, the Respondent repeatedly spoke over the judge and opposing counsel in a loud, rude, and angry manner. Again, the Respondent refused to stop talking when ordered to stop by the court.
"23. The hearing resumed on June 18, 2009, and the Respondent did appear. During that hearing, the Respondent asked the court whether he is a `pedophile.' The Respondent also stated to the court that `you're going to sit up there with the audacity and the smugness of your holiness.' Finally, and again, the Respondent repeatedly spoke over the judge and opposing counsel in a loud, rude, and angry manner. The Respondent, again, refused to stop talking over the judge and opposing counsel when ordered to do so by the court.
"24. As a result of the Respondent's conduct on June 16, 2008, June 17, 2008, and June 18, 2008, the court held the Respondent in contempt and sentenced the Respondent to serve 120 days in jail. The Respondent served the entire sentence. (There was no direct testimony on this incident at the hearing. However, Disciplinary Administrator's Exhibit 9, Judgment of Contempt and Disciplinary Administrator's Exhibit 14, letter from the Respondent to Nancy Wilson, dated April 6, 2009, wherein the Respondent admits engaging in complained of conduct, provide the factual basis for this count.)
"Count IV DA10529
"Representation of [J.J.]
"25. The Respondent was a captain in the Kansas Army National Guard. As a result, from time to time, the Respondent would be appointed to represent soldiers with regard to military offenses.
"26. In the fall of 2007, [J.J.] was charged in a two count complaint in the District Court of Johnson County, Kansas, case number. ... The charges were driving under the influence of alcohol and possession of drugs, both misdemeanors. [J.J.] was a soldier with the Kansas Army National Guard.
"27. [J.J.], with help from his mother and step-father, hired J. Steven Neighbors to represent him in the criminal case. [J.J.]'s mother paid Mr. Neighbors $1,500.00 for the representation in the criminal case. Mr. Neighbors is a very experienced criminal law attorney.
"28. With regard to military action that could have been taken against [J.J.], as a result of the criminal charges, [J.J.] requested that a Judge Advocate General be appointed to defend him. As a result, the Respondent was appointed to represent [J.J.] with regard to any military action taken against him. The Respondent was not appointed to represent [J.J.] in the pending criminal case in the District Court of Johnson County, Kansas.
*950 "29. At some point, [J.J.]'s mother talked with the Respondent about having a meeting with the family, Mr. Neighbors, and the Respondent to make sure that everyone understood what was happening with regard to [J.J.]'s future.
"30. Mr. Neighbors negotiated a plea agreement. Pursuant to the plea agreement, the Respondent was to enter a plea of guilty to the driving under the influence of alcohol charge and in return, the prosecutor would dismiss the possession of drugs charge. The plea agreement was satisfactory to [J.J.], his mother, his step-father, and his father.
"31. The Respondent was to enter his plea of guilty to the driving under the influence of alcohol charge on April 11, 2008, at 1:30 p.m.
"32. An hour before the hearing, [J.J.] and his parents were to meet with the Respondent about [J.J.]'s future. [J.J.] and his parents were present, but the Respondent was not. Instead, the Respondent sent his wife to tell [J.J.] and his parents that he was on his way.
"33. When the Respondent arrived for the meeting, it was just minutes before the plea hearing was to occur. The Respondent informed Mr. Neighbors, [J.J.], and [J.J.]'s parents that he was going to take over the criminal case.
"34. In fact, unbeknownst to [J.J.] and his parents, the Respondent filed an entry of appearance in the criminal case at 11:30 a.m. that morning. Neither [J.J.] nor his parents had retained the Respondent, nor had they discharged Mr. Neighbors.
"35. The Respondent promised [J.J.] and his parents that he would obtain a dismissal of the pending charges. [J.J.] was uncertain as to how he should proceed. He was prepared to enter a plea of guilty to the driving under the influence of alcohol charge negotiated by Mr. Neighbors. However, the guarantee of having the charges dismissed was compelling. As a result, under a great deal of stress and anxiety caused by the Respondent, [J.J.] agreed to have the Respondent represent him.
"36. Orally, the Respondent and [J.J.] agreed to a flat fee of $3,500.00. [J.J.]'s mother paid the Respondent the $3,500.00 for the representation.
"37. At the hearing, Mr. Neighbors was allowed to withdraw and the Respondent was recognized as [J.J.]'s attorney. At the Respondent's request, the case was continued to May 1, 2008.
"38. On April 21, 2008, the Respondent filed `Defendant's Affidavit in Support of Defendant's Application for Change of Judge.' The document purports to have been signed by [J.J.]. However, [J.J.] did not sign the affidavit.
"39. The Respondent, in his representation of [J.J.] with regard to the potential military action, was abusive and arrogant in his dealings with [J.J.]'s chain of command.
"40. One night, the Respondent made arrangements to meet [J.J.] at a McDonald's Restaurant in Independence, Missouri, at 11:30 p.m. The Respondent got into [J.J.]'s car and handed him papers to review and sign. One of the documents that the Respondent handed to him was a written fee agreement. The written fee agreement indicated that the Respondent's hourly rate is $3,500.00. The Respondent sought payment of $13,250.00 as a `liquidated fee.' The Respondent directed [J.J.] to drive him to the Respondent's wife's place of employment in downtown Kansas City, Missouri, to pick up his car.
"41. [J.J.] was uncomfortable with the very unusual late night meeting with the Respondent. According to [J.J.] the meeting `seemed like a drug deal.'
"42. Regarding the $13,250 liquidated fee, [J.J.] told the Respondent that he did not have `that kind of money.' The Respondent assured [J.J.] that the fee was negotiable. Subsequently, [J.J.] terminated the representation of the Respondent and requested that the $3,500.00 be returned. The Respondent never returned the $3,500.00. The Respondent threatened to sue [J.J.].
"43. [J.J.] and his parents believe that the Respondent's treatment of [J.J.]'s chain of command negatively impacted *951 [J.J.]'s military career. As a result of [J.J.]'s criminal case and the Respondent's treatment of [J.J.]'s chain of command, [J.J.] received a general discharge from the Kansas Army National Guard. [J.J.]'s family had a long and proud history of military service. The Respondent's conduct which materially contributed to [J.J.]'s discharge was emotionally devastating to [J.J.] and his family.
"44. When an army JAG attorney is appointed to represent a soldier in a military setting, pursuant to Army regulations, the JAG attorney is prohibited from representing that same soldier in a civilian setting if a fee is charged.
"45. Other than entering his appearance, continuing the April 11, 2008, hearing, and filing the Defendant's Affidavit in Support of Defendant's Application for Change of Judge, the Respondent did nothing to earn the $3,500.00 fee.
"Count V DA10529
"Municipal Court of Grandview, Missouri
"46. On June 2, 2008, the Respondent appeared in behalf of a client at the Municipal Court of Grandview, Missouri. While court was in session, the Respondent was speaking in a loud voice and disrupted the court session. Mike Smith, the court bailiff asked the Respondent to move to an area that was made available for attorneys to meet with their clients and the court bailiff also asked the Respondent to keep his voice down.
"47. The Respondent began yelling at Mike Smith, telling him to get out of his face and that he can stand wherever he wanted to stand. A court security officer, Greg Smith, came to where the Respondent was making the commotion and escorted the Respondent to the courtroom.
"48. The Respondent continued to speak in a loud voice. Because he was disrupting court, Greg Smith escorted the Respondent to the bench. The Respondent stated that the Grandview Municipal Court is a `kangaroo court.' The Respondent started turning his hands around yelling, `I'm Carlos Romious and I'm an attorney and I'm being treated unfairly in this courtroom.' As a result of the Respondent's disruptive behavior, the municipal court judge held the Respondent in contempt of court.
"49. Greg Smith placed the Respondent under arrest and escorted him to the detention area. The Respondent's client observed Greg Smith escort the Respondent from the courtroom. Greg Smith heard the Respondent's client state, `That's my attorney and I don't want to have anything to do with him.'
"50. While the Respondent was being detained, the Respondent called Greg Smith a snake. The Respondent stated that `all you guys in Grandview you are all snakes, that's all you all are.'
"51. Approximately fifteen minutes later, the judge called the Respondent back from the detention area. The judge admonished the Respondent to behave professionally in the courtroom and released him from custody.
"52. Two days later, Greg Smith observed the Respondent in the Grandview Municipal Court again. When the Respondent noticed Greg Smith, the Respondent started yelling at him. The Respondent yelled, `I'm back in Grandview. All the snakes are back again.' The Respondent continued to scream that everyone was a snake and that Grandview is full of snakes.
"CONCLUSIONS OF LAW
"1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.5, KRPC 3.4, KRPC 3.5, KRPC 4.4, KRPC 8.4, and Kan. Sup. Ct. R. 211, as detailed below.
"2. The Respondent failed to appear at the hearing on the Formal Complaint. It is appropriate to proceed to hearing when a Respondent fails to appear only if proper service was obtained. Kan. Sup.Ct. R. 215 governs service of process in disciplinary proceedings. That rule provides, in pertinent part as follows:
'(a) Service upon the respondent of the formal complaint in any disciplinary proceeding shall be made by the Disciplinary *952 Administrator, either by personal service or by certified mail to the address shown on the attorney's most recent registration, or at his or her last known office address.
. . . .
'(c) Service by mailing under subsection (a) or (b) shall be deemed complete upon mailing whether or not the same is actually received.'
In this case, the Disciplinary Administrator complied with Kan. Sup.Ct. R. 215(a) by sending a copy of the Formal Complaint and the Notice of Hearing, via certified United States mail, postage prepaid, to the address shown on the Respondent's most recent registration. Additionally, the Disciplinary Administrator sent a copy of the Formal Complaint and the Notice of Hearing to several other addresses. Finally, it appears that actual service was obtained as the Respondent sent an electronic mail message acknowledging the hearing. The Hearing Panel concludes that the Respondent was afforded the notice that the Kansas Supreme Court Rules require.
"3. Lawyers must provide competent representation to their clients. KRPC 1.1. `Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.' In representing [J.J.] in the Johnson County District Court matter, the Respondent lacked reasonable competence. He filed a motion seeking the recusal of a judge without making any factual allegations. Because the Respondent was incompetent in representing [J.J.], the Hearing Panel concludes that the Respondent violated KRPC 1.1.
"4. According to KRPC 1.5(a), `[a] lawyer's fee shall be reasonable.' The Respondent orally agreed to represent [J.J.] in the criminal case for a flat fee of $3,500.00. While that fee was more than double the fee Mr. Neighbors' charged [J.J.] for the same representation, that fee was not per se unreasonable. However, later in the representation, the Respondent attempted to change the fee agreement from a flat fee of $3,500.00 to an hourly rate of $3,500.00. An hourly rate of $3,500.00 is unreasonable.
"5. KRPC 8.4(a) prohibits attorneys from violating or attempting to violate the Kansas Rules of Professional conduct. By attempting to charge [J.J.] $3,500.00 per hour, the Respondent attempted to violate KRPC 1.5. As such, the Hearing Panel concludes that by virtue of KRPC 8.4(a), the Respondent violated KRPC 1.5.
"6. Pursuant to KRPC 3.4(c), lawyers shall not `knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.' In this case, the Respondent knowingly disobeyed an obligation under the rules of a tribunal when he engaged in contemptuous conduct in the Circuit Court of Green County, Missouri, and Grandview Municipal Court. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.4(c).
"7. KRPC 3.5(d) prohibits lawyers from `engag[ing] in undignified and discourteous conduct degrading to a tribunal.' The Respondent repeatedly engaged in undignified and discourteous conduct degrading to a tribunal in the Circuit Court of Green County, Missouri, and Grandview Municipal Court. Therefore, the Hearing Panel concludes that the Respondent violated KRPC 3.5(d).
"8. KRPC 4.4(a) provides:
'In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.'
In this case, the Respondent shouted profanities at the clerks of Shawnee, Kansas, Municipal Court and at the court security officers and the United States Deputy Marshals. In addition, the Respondent was rude and disruptive in the Circuit Court of Green County, Missouri, and the Grandview, Missouri, Municipal Court. The Respondent's conduct had no substantial purpose other than to embarrass or burden court personnel. As such, the Hearing Panel concludes that the Respondent violated KRPC 4.4(a).
*953 "9. `It is professional misconduct for a lawyer to ... commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.' KRPC 8.4(b). In this case, the Respondent engaged in criminal conduct at the Municipal Court of Shawnee, Kansas, and in the federal courthouse. As a result, the Respondent was convicted of disorderly conduct in the Johnson County District Court and was convicted of failing to comply with official signs of a prohibitory, regulatory, and directory nature and with the lawful direction of a federal police officer in the United States District Court for the District of Kansas. The Hearing Panel concludes that the Respondent committed criminal acts and those criminal acts reflect directly on the Respondent's fitness as a lawyer in other respects, in violation of KRPC 8.4(b).
"10. `It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation.' KRPC 8.4(c). The Respondent engaged in conduct that involved dishonesty when he drafted the fee agreement and asserted that [J.J.] agreed to pay $3,500.00 per hour rather than $3,500.00 as a flat fee. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(c).
"11. `It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d). In this case, the Respondent engaged in `conduct that is prejudicial to the administration of justice' when he disturbed the peace of the Shawnee, Kansas, Municipal Court clerk's office, when he created the disturbance at the federal courthouse, when he disrupted court in the Circuit Court of Green County, Missouri, when he entered his appearance in behalf of [J.J.] without authorization, and when he disrupted court in Grandview Municipal Court. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
"12. `It is professional misconduct for a lawyer to ... engage in any other conduct that adversely reflects on the lawyer's fitness to practice law. KRPC 8.4(g). The Respondent repeatedly violated KRPC 8.4(g).
"13. First, shouting profanities while in the Shawnee, Kansas, Municipal Court clerk's office adversely reflects on the Respondent's fitness to practice law.
"14. Next, the Respondent's conduct at the federal courthouse adversely reflects on his fitness to practice law. Specifically, the Respondent was unwilling to remove his watch and walk back through the magnetometer. The Respondent shouted profanities at the court security officers and the United States Deputy Marshals. The Respondent attempted to gain entrance to the federal courthouse without security clearance. Finally, refusing to leave the building and instead, engaging in a brawl with the United States Deputy Marshals adversely reflects on the Respondent's fitness to practice law.
"15. Generally, the Respondent's conduct in the Circuit Court of Green County, Missouri, adversely reflects on the Respondent's fitness to practice law. Specifically, accusing the judge in the Circuit Court of Green County, Missouri, of being a pedophile also adversely reflects on his fitness to practice law.
"16. Without being retained to represent [J.J.] in the criminal case, the Respondent entered his appearance. The Respondent's conduct in inserting himself in [J.J.]'s criminal case pending before the Johnson County District Court adversely reflects on the Respondent's fitness to practice law. Further, the Respondent engaged in conduct that adversely reflects on his fitness to practice law when he failed to return the unearned fees of $3,500.00 to [J.J.] or [J.J.]'s mother.
"17. The Respondent engaged in disruptive behavior while in the Municipal Court of Grandview, Missouri. The Respondent's conduct in that court also reflects adversely on the Respondent's fitness as an attorney.
"[18.] In summary, the Respondent's conduct resulted in two criminal convictions, a contempt adjudication that lead to 120 days in jail, minor injuries to a United States Marshal, and an adverse impact on *954 a military career. The Respondent's treatment of court staff and the judiciary was far below any acceptable standard. The Respondent's conduct caused a negative public perception of the legal profession. Finally, the Hearing Panel cannot ascribe any good cause, justifiable reason or mitigating factor to the Respondent's conduct in this case.
"19. Accordingly, the Respondent repeatedly engaged in conduct that adversely reflects on the his fitness to practice law. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(g).
"20. The Kansas Supreme Court Rules require attorneys to file Answers to Formal Complaints. Kan. Sup.Ct. R. 211(b) provide the requirements:
'The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.'
Kan. Sup.Ct. R. 211(b). In this case, the Respondent violated Kan. Sup.Ct. R. 211(b) by failing to file a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup.Ct. R. 211(b).
"AMERICAN BAR ASSOCIATION
"STANDARDS FOR IMPOSING LAWYER SANCTIONS
"In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter `Standards'). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors.
"Duty Violated. The Respondent violated his duties to his clients, to the public, to the legal system, and to the legal profession.
"Mental State. The Respondent knowingly violated his duties.
"Injury. As a result of the Respondent's misconduct, the Respondent caused actual injury to his client and to the legal system.
"Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
"Prior Disciplinary Offenses. On May 9, 2001, the Respondent was informally admonished for having violated KRPC 1.1 and KRPC 1.3.
"A Pattern of Misconduct. The Respondent engaged in a consistent pattern of rude, disruptive, and at times criminal, misconduct.
"Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.5, KRPC 3.4, KRPC 3.5, KRPC 4.4, KRPC 8.4, and Kan. Sup.Ct. R. 211. As such, the Hearing Panel concludes that the Respondent committed multiple offenses.
"Refusal to Acknowledge the Wrongful Nature of his Conduct. To a very limited extent, the Respondent acknowledged wrongful conduct in Disciplinary Administrator Exhibit 14.
"Indifference to Making Restitution. To date, the Respondent has not reimbursed [J.J.]'s mother for the $3,500.00 that she paid for the representation. [J.J.] and his mother made a claim with the Client Protection Fund and, as a result, received $3,500.00 from the fund. The Respondent should be required to reimburse the Client Protection Fund $3,500.00.
"Illegal Conduct, Including that Involving the Use of Controlled Substances. The Respondent was convicted of disorderly conduct and failing to comply with official signs of a prohibitory, regulatory, and directory nature and with the lawful direction of a federal police officer. Thus, the Respondent engaged in illegal conduct.
"Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this *955 case, found no mitigating circumstances present.
"In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
'4.11 Disbarment is generally appropriate when a lawyer knowingly converts client property and causes injury or potential injury to a client.
'6.21 Disbarment is generally appropriate when a lawyer knowingly violates a court order or rule with the intent to obtain a benefit for the lawyer or another, and causes serious injury or potentially serious injury to a party, or causes serious or potentially serious interference with a legal proceeding.
'7.1 Disbarment is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system.'
"RECOMMENDATION
"The Disciplinary Administrator recommended that the Respondent be disbarred. The Disciplinary Administrator stated that had the Respondent filed an Answer or otherwise participated in the process, indefinite suspension might have been an appropriate recommendation.
"Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be disbarred.
"Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator."
The Hearing Panel also noted that it would have also concluded respondent violated KRPC 1.15 and KRPC 1.16, for failing to refund the unearned fee to J.J. or his mother, had violations of those rules not been alleged.
DISCUSSION
In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Lober, 288 Kan. 498, 505, 204 P.3d 610 (2009); see Supreme Court Rule 211(f) (2009 Kan. Ct. R. Annot. 321). Clear and convincing evidence is "evidence that causes the factfinder to believe that `the truth of the facts asserted is highly probable.'" 288 Kan. at 505, 204 P.3d 610 (quoting In re Dennis, 286 Kan. 708, 725, 188 P.3d 1 [2008]). The evidence before the hearing panel establishes the charged misconduct of the respondent by clear and convincing evidence and supports the panel's conclusions of law. We therefore adopt the panel's findings and conclusions.
CONCLUSION AND DISCIPLINE
IT IS THEREFORE ORDERED that Carlos Dupree Romious, a/k/a D. Carlos Romious, be disbarred from the practice of law in the state of Kansas, effective on filing of this opinion, in accordance with Supreme Court Rule 203(a)(1) (2009 Kan. Ct. R. Annot. 272).
IT IS FURTHER ORDERED that Carlos Dupree Romious comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361).
IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.
PATRICIA MACKE DICK, District Judge, assigned. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2759471/ | Matter of MBNA Am. Bank, N.A. v Novins (2014 NY Slip Op 08647)
Matter of MBNA Am. Bank, N.A. v Novins
2014 NY Slip Op 08647
Decided on December 10, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 10, 2014
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
SHERI S. ROMAN
SANDRA L. SGROI, JJ.
2014-02458
(Index No. 23456/05)
[*1]In the Matter of MBNA America Bank, N.A., respondent,
vGary R. Novins, appellant.
The Law Office of Jason Tenenbaum, P.C., Garden City, N.Y., for appellant.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, Gary R. Novins appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated January 9, 2014, which denied his motion pursuant to CPLR 5015(a)(4) to vacate a judgment of the same court entered April 13, 2006, granting the petition upon his failure to appear or answer.
ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for a hearing to determine whether personal jurisdiction over Gary R. Novins was obtained in the proceeding, and for a new determination of the motion thereafter.
The appellant moved pursuant to CPLR 5015(a)(4) to vacate a judgment entered upon his failure to appear or answer, claiming that service of process upon him pursuant to CPLR 308(2) was defective because a copy of the notice of petition and petition was not delivered to his dwelling place when it was left with a security guard at a security booth in the townhouse complex where he lived. In view of the conflicting affidavits submitted with respect to this issue, the Supreme Court should have conducted a hearing to determine whether the security guard was a person of suitable age and discretion within the contemplation of CPLR 308(2), and if the outer bounds of the appellant's dwelling place extended to the security booth (see Braun v St. Vincent's Hosp. & Med. Ctr., 57 NY2d 909, 910; F.I. DuPont, Glore Forgan & Co. v Chen, 41 NY2d 794, 797; DeStaso v Bottiglieri, 52 AD3d 453, 454). Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a hearing on the issue of whether the appellant was properly served with process (see DeStaso v Bottiglieri, 52 AD3d at 454; Campbell v Johnson, 264 AD2d 461; Akhtar v Cavalieri, 255 AD2d 275), and a new determination of the motion thereafter.
DILLON, J.P., DICKERSON, ROMAN and SGROI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court | 01-03-2023 | 12-10-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1334415/ | 260 S.E.2d 270 (1979)
Woodrow TETER et al.
v.
John C. TETER et al., and Emma Miles, et al.
No. 14149.
Supreme Court of Appeals of West Virginia.
November 20, 1979.
Rehearing Denied January 24, 1980.
*271 Richard W. Cardot, Elkins, for appellants.
Joseph A. Wallace, Elkins, for Woodrow Teter, et al.
Harry A. Smith, III, Elkins, for John C. Teter.
PER CURIAM:
On February 20, 1978, this Court granted Emma Miles' and Norman Patrick's petition for a writ of error. The case matured for decision on October 16, 1979. Briefs have been filed by the appellees, Woodrow and Bessie Teter, plaintiffs below, by appellee John C. Teter, a defendant below, and by appellants Miles and Patrick also defendants below. The question facing this Court pertains to the correctness of the trial court's rulings on the status of two streets in a subdivision near Elkins, in Randolph County. We conclude the trial court acted correctly.
All the parties to this action are owners of lots in the Ervin Subdivision. Appellees Woodrow and Bessie Teter filed suit in the Circuit Court of Randolph County seeking to enjoin the obstruction of Stanton Avenue. Stanton Avenue is the name given to a street laid out on the plat of Ervin Subdivision. Stanton Avenue appears on the plat as a street fifty feet in width lying in a north-south direction. The section of Stanton Avenue in controversy divides blocks two and four of the subdivision. To the north this section of Stanton Avenue intersects with Gilmore Avenue, and to the south it intersects and dead ends into an alley.
Pleasant Avenue lies roughly parallel to Stanton Avenue and has its northern terminus with the alley that is the southern terminus of Stanton Avenue. Over a period of years a traveled way had come into existence continuing the path of Pleasant Avenue northward and running parallel to Stanton Avenue to intersect Gilmore Street. This way has been referred to as the Lower Pleasant Avenue Extension.
The appellants Miles and Patrick own property bordering on the west side of Stanton Avenue, and appellee John Teter owns property fronting on the east side. *272 The Lower Pleasant Avenue Extension is located partially on the land of John Teter, and partially within the fifty-foot platted width of Stanton Avenue. Appellees Miles and Patrick own property north of Gilmore Street and had used the Lower Pleasant Avenue Extension to reach Pleasant Avenue and travel into Elkins. After John Teter purchased his property he obstructed the Lower Pleasant Avenue Extension. Stanton Avenue had not been a traveled way for many years and there were various obstructions to travel including encroachments by structures in the area covered by Stanton Avenue as platted. Therefore, Woodrow and Bessie Teter, seeking a direct southern route to reach Pleasant Avenue, filed suit asking the court to enjoin the obstruction of Stanton Avenue.
After taking evidence including a surveyor's report ordered by the court, the trial court found Stanton Avenue was a public way, and ordered it opened to the public use in a width of twenty feet; said twenty feet to be laid out east of the center line of the street as platted. By laying the street out in this manner, the court avoided placing the traveled way in the area west of the center line and extending it to its full fifty-foot width which would have necessitated the possible removal of structures belonging to Miles and Patrick. This arrangement also avoided encroaching upon the property of John Teter. The twenty-foot width of Stanton Avenue which the court ordered open to the public lays entirely within the fifty-foot width of the street as platted. The court did not find as Miles and Patrick had contended, that the public had gained a prescriptive right to travel the Lower Pleasant Avenue Extension.
Miles and Patrick contend the trial court erred in finding Stanton Avenue to be a public way, and erred in refusing to find the public had gained a prescriptive way over the Lower Pleasant Avenue Extension across the property of John Teter. The brief of appellee John Teter contends the court's rulings are correct. Woodrow and Bessie Teter urge us to affirm the trial court's judgment.
As to the owners of property in the Ervin Subdivision we believe the status of Stanton Avenue is governed by the following law of this Court:
"When lands are laid off into lots, streets, and alleys, and a map plat thereof is made, all lots sold and conveyed by reference thereto, without reservation, carry with them, as appurtenant thereto, the right to the use of the easement in such streets and alleys necessary to the enjoyment and value of such lots." Syl. pt. 2, Cook v. Totten, 49 W.Va. 177, 38 S.E. 491 (1901).
However, the court below went further and found Stanton Avenue was a public street. In regard to this issue the controlling law appears in the single syllabus point of Huddleston v. Deans, 124 W.Va. 313, 21 S.E.2d 352 (1942).
"Where an owner of land has the same platted in lots, streets and alleys, and conveyances are made by his successors in title, in which references are made to the map and alleys, and which land is subsequently occupied by a number of purchasers of lots and there is a user by the public of a greater part of the platted streets and alleys, the non-user of a portion thereof and occupancy or encroachment by abutting landowners do not affect the right of the public or an abutting owner to use all such alleys in their entirety." Syl., Huddleston v. Deans, supra.
The evidence demonstrates there had in the past been a user by the public of Stanton Avenue and user by the public of the other streets and alleys in the subdivision. We believe that the trial court was correct in concluding the public had a right to use Stanton Avenue.
The status of Stanton Avenue as a public way defeats the appellants' claim of adverse possession. Huddleston v. Deans, supra.
The second issue of the case concerns the status of the Lower Pleasant Avenue Extension. The evidence supports the view that the use of the Lower Pleasant Avenue Extension by the public was permissive. *273 No evidence constituted proof which destroyed the permissive character of the use. Appellants contend W.Va.Code, 17-1-3 operates to conclusively presume the road was a public way because of use by the public for ten years or more and the expenditure of public monies or labor thereon. We believe the evidence depicted an expenditure of public monies and labor of a nature that was occasional and not duly authorized, thereby rendering the statutory presumption ineffective. Syl. pt. 3, Baker v. Hamilton, 144 W.Va. 575, 109 S.E.2d 27 (1959).
We conclude the evidence, while conflicting, supported the decision reached by the trial court:
"The finding of a trial court upon the facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding." Syl. pt. 7, Bluefield Supply Co. v. Frankel's Appliances, Inc., 149 W.Va. 622, 142 S.E.2d 898 (1965).
For the foregoing reasons, we affirm the judgment of the trial court.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334605/ | 146 Ga. App. 798 (1978)
247 S.E.2d 487
OLIVER
v.
THE STATE.
55585.
Court of Appeals of Georgia.
Submitted April 10, 1978.
Decided June 15, 1978.
Rehearing Denied July 20, 1978.
Young, Smith & Associates, Sharon Lynn Tucker, for appellant.
William S. Lee, District Attorney, Hobart M. Hind, Assistant District Attorney, for appellee.
BELL, Chief Judge.
Defendant was convicted of selling a quantity of marijuana. Held:
1. Defendant urges error in the denial of a motion for continuance when it was shown that an alleged material witness subpoenaed by him failed to appear. Code § 81-1410 imposes requirements that must accompany an application for a continuance. Here, the defendant established only that the witness was absent without permission and had been subpoenaed. He failed to establish the requirements of the statute that the testimony was material; that he would be able to procure the witness for the next term of court; failed to state the facts expected to be proved by such witness; and that the motion was not made for delay. Having failed to fulfill the statutory requirements, there was no error in denying the application. Harrison v. State, 140 Ga. App. 296, 297 (3) (231 SE2d 809).
2. On cross examination, a state's witness was asked to divulge the identity of a confidential informant and the trial court on its own motion ruled that the witness did not have to answer. Elsewhere in the transcript of evidence it appears that the informer was present at the time of the sale of the marijuana to a state agent. Thus the disclosure of the informant's identity would at most only serve to furnish possible testimony refuting the agent's testimony. In Connally v. State, 237 Ga. 203 (227 SE2d 352) it was held that in any case where the evidence sought from the informer might possibly impeach the police, disclosure of the informer's identity was not required.
3. Defendant contends that the court erred in compelling his wife to testify against him in violation of Code Ann. § 38-1604. The defendant's wife, for reasons not clear, was called as a state's rebuttal witness. She testified concerning their former and present telephone numbers which testimony corroborated that of her husband and other defense witnesses. Code § 38-1604 provides, in part: "Husband and wife shall be competent but shall not be compellable to give evidence in any criminal proceeding *799 for or against each other..." Although the defendant initially objected by attempting to invoke the statute as his privilege, he apparently abandoned that and requested the court to instruct the wife as to the law governing her privilege. The court did not, merely stating: "I'll stop him if he gets into anything that's improper." Assuming that error was committed, it was harmless.
4. There was evidence which authorized the conviction. The motion for a directed verdict of acquittal was therefore correctly denied.
5. All other enumerations of error are without merit and require no further consideration.
Judgment affirmed. Shulman and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596845/ | 638 So.2d 97 (1994)
Jerry LEWIS, Appellant,
v.
STATE of Florida, Appellee.
No. 94-01099.
District Court of Appeal of Florida, Second District.
May 11, 1994.
*98 PER CURIAM.
Jerry Lewis appeals the dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. This court previously reversed and remanded the summary denial of his motion in Lewis v. State, 629 So.2d 1051 (Fla. 2d DCA 1993). On remand, the trial court dismissed the motion for lack of a proper oath. The trial court's order, however, did not dismiss without prejudice to refiling a properly sworn motion as it is required to do. See Anderson v. State, 627 So.2d 1170, 1171 (Fla. 1993).
Accordingly, we affirm the trial court's order of dismissal, but do so without prejudice to the appellant's refiling the motion with the proper oath.
SCHOONOVER, A.C.J., and BLUE and QUINCE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334916/ | 92 Ga. App. 167 (1955)
88 S.E.2d 287
GRIFFIN
v.
BENTON.
35672.
Court of Appeals of Georgia.
Decided June 8, 1955.
A. J. Whitehurst, C. E. Hay, for plaintiff in error.
B. B. Earle, Jr., contra.
FELTON, C. J.
The disposition of this case depends on whether Code § 62-601 inures to the benefit of motorists using the public highways in counties in which the stock law is in effect. This section provides: "In any county which shall adopt the stock law as provided in Chapter 62-5, no horse, mule, cow, or hog, or any other animal or animals, used or fit either for food or labor, shall be permitted to run at large beyond the limits of the lands of its owner or manager." The plaintiff in error contends that this section is only for the protection of crops from the trespass of the named animals and not for the protection and safety of motorists. It is further contended that the General Assembly when it passed the act in 1872 only intended to protect crops and could not have intended to protect motorists because automobiles were not in existence at that time.
*168 We think the General Assembly intended for the law to protect the general public from the evils of animals running at large. It may be true that the one big evil of animals running at large in 1872 was the destruction of crops, but such fact did not preclude subsequent and additional evils from arising. "Statutes framed in general terms and not plainly indicating the contrary will be construed prospectively, so as to apply to persons, subjects, and things within their purview and scope coming into existence subsequent to their enactment." 82 C. J. S. 558, § 319; 2 Sutherland, Statutory Construction, 505, § 5014. The act does not provide that such animals as described shall not be permitted to run at large beyond the limits of the lands of its owner or manager on the lands and crops of others. It provides that such animals should not be permitted to run at large generally beyond the limits of the lands of their owners or managers. Further, when the General Assembly in 1935 adopted the Code of 1933, it amounted to a re-enactment of each section thereof as contemporary statutes. State of Ga. v. Camp, 189 Ga. 209, 210 (2) (6 S.E.2d 299), and citations. Therefore, while the General Assembly of 1872 when enacting the original act, did not have before it the evil of stock running at large on the public highways used by automobiles, that evil was before the 1935 General Assembly when it adopted the Code of 1933. See Gore v. State, 79 Ga. App. 696, 705 (54 S.E.2d 669). It is true that in some cases the original law instead of the Code section will be looked to in interpreting the law; however, this rule pertains to cases where the meaning of the Code section is ambiguous. State of Ga. v. Camp, supra, headnote 2. There is nothing ambiguous or vague about the meaning of Code § 62-601. It clearly states that, in any county which shall adopt the stock law, no described animal shall be permitted to run at large beyond the limits of the lands of its owner or manager.
The petition alleged a violation of Code § 62-601, which amounted to negligence per se, and thus alleged a good cause of action as to negligence as against a general demurrer.
The petition does not show that the plaintiff's son was guilty of such negligence as would render him the "author of his own misfortune."
*169 The defendant in error concedes that the petition was subject to general demurrer because it failed to show that the right of action for the son's death was in the mother. For this reason alone the court erred in overruling the general demurrer.
Judgment reversed. Quillian and Nichols, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1524564/ | 240 B.R. 211 (1999)
In re Alfred and Denise RUXTON, Debtors.
Alfred and Denise Ruxton, Plaintiffs,
v.
City of Philadelphia, Defendant.
Bankruptcy No. 93-16818SR. Adversary No. 99-612.
United States Bankruptcy Court, E.D. Pennsylvania, Philadelphia Division.
October 21, 1999.
*212 Daniel K. Astin, Office of U.S. Trustee, Philadelphia, PA.
Theresa Giannone, Pachtman Law Office, Folsom, PA.
Joseph DiGuiseppe, City of Philadelphia Law Dept., Philadelphia, PA.
OPINION
STEPHEN RASLAVICH, Bankruptcy Judge.
Introduction.
Plaintiffs/Debtors, Alfred and Denise Ruxton, have filed the above adversary proceeding to determine the dischargeability of certain real estate taxes claimed to be owed by the Defendant, City of Philadelphia, with respect to the Debtor's residence at 4051 Castor Ave., Philadelphia Pa. The City of Philadelphia has filed a Motion to Dismiss the Debtors' Complaint under F.R.C.P. 12(b)(6), asserting that it fails to state a claim upon which relief may be granted. The Debtors have filed an answer in opposition to the Motion and both sides have submitted briefs. Oral argument was heard September 20, 1999. For the reasons discussed herein, the Motion will be granted and the Complaint dismissed.
Few of the relevant facts are in dispute. The Debtors commenced their Chapter 13 case on November 2, 1993. The Bankruptcy Schedules filed by them list two debts owed to the City of Philadelphia. First, listed on Schedule E is an unsecured priority claim for 1993-1998 real estate taxes. The Debtors list the admitted amount owed as being $2,700, but the amount claimed to be owed as $5,250. The named creditor is City of Philadelphia, Legal Dept.Enforcement1101 Market Street, 10th Floor, Philadelphia, PA, XXXXX-XXXX. Second, Schedule F lists an unsecured non-priority claim for utility bills. This scheduled debt is for $1,069.40 and the named creditor is City of Philadelphia, Water Revenue Dept. P.O. Box 1288, Philadelphia PA XXXXX-XXXX. Below this address block there is indented a notation which seems to suggest that the City of Philadelphia Water Revenue Dept. is represented by the City of Philadelphia Law Dept.Enforcement, at the aforedescribed address for that agency
*213 The Debtors' original Chapter 13 plan provided for deferred payment to the City of Philadelphia, as a priority creditor, in the total amount of $2,700. The preamble to Paragraph 2.(b) of that plan recites that the holders of secured claims shall retain the liens securing such claims, and also identifies two secured creditors and the proposed plan payments thereto. The City of Philadelphia is not named in this section of the plan.
On January 26, 1994, the City of Philadelphia Law Dept.Enforcement Division filed a Proof of Claim. In block number 1, entitled "Basis for Claim," the box bearing the pre-printed term "taxes" is checked, however, next to it have been added the typed words "municipal claims." The claim is in the filed amount of $1,030.79, of which $576.50 is scheduled as secured, and $454.29 is listed as unsecured non-priority. Attached to the claim is a schedule entitled "Itemization Pursuant to Local Rule 3001.1." This schedule, in Section I, Line 2 reflects the claimed balance as being related to water/sewer charges. Section I, Line 1 of the form provides separate space for the itemization of real estate taxes, however no amounts are set forth for any such claim.
Ironically, matters initially came to a head in this case in May, 1994 when the Chapter 13 Trustee apparently indicated that he would not recommend confirmation of the Debtors' Chapter 13 plan since, among other things, the plan provided for a $2,700 payment to the City of Philadelphia, when the City had filed a proof of claim in the aforementioned smaller amount. On August 26, 1994, the Debtors filed an amended Chapter 13 plan. The aggregate plan funding remained the same. The amended plan, however, reduced, and mischaracterized as priority, a payment to the City of Philadelphia in the amount set forth in its claim as secured, and made certain other adjustments to payments to named secured creditors. An additional distinction between the original and the amended Chapter 13 plans thus became a slight increase in the distribution to be made to the holders of unsecured claims without priority. No separate payment to the City of Philadelphia for real estate taxes was provided in the amended plan.
The Debtors' amended Chapter 13 plan was confirmed by Order of Court dated September 16, 1994. The Debtors apparently made all payments required under the amended plan, including the priority and unsecured claim distributions specified for the City of Philadelphia. The Debtors accordingly believed that their troubles lay behind them. To their dismay, however, the Debtors have recently been informed by the City of Philadelphia that they still owe real estate taxes for the years 1993 through 1998 in an amount totaling $7,694.14, with interest and penalties. The Debtors insist that they owe nothing and invoke the holding of the Third Circuit Court of Appeals in In re Szostek 886 F.2d 1405 (3rd Cir.1989). They seek the entry of an Order declaring that the real estate tax debt at issue has been discharged and any lien extinguished. The City of Philadelphia, in its Motion to Dismiss, argues that Szostek is inapposite and that the Debtors' complaint fails to state a claim upon which relief may be granted. In this respect the City argues that its lien for unpaid real estate taxes has survived the bankruptcy. The City relies on Estate of Lellock v. Prudential Insurance Company, 811 F.2d 186, 187-188 (3d Cir.1987); In re Coffin, 189 B.R. 323, 326 (E.D.Pa.1995); and In re Wolf, 162 B.R. 98, 105. The Debtors dispute the City's legal theory, but argue that, irrespective thereof, the City is both equitably and judicially estopped from contesting the discharge of the tax debt under the present circumstances.
The Court agrees with the City that Szostek is not dispositive. In Szostek the Third Circuit held that confirmation orders are res judicata as to all issues decided, or which could have been decided, at the hearing on confirmation, and affirmed the *214 Bankruptcy Court's confirmation of a Chapter 13 plan which modified a secured creditors rights, after the creditor had failed to object to confirmation, and had failed to appear at the confirmation hearing. There was no issue in Szostek, as there is here, over whether the Debtors' chapter 13 plan in fact made provision for the treatment of a creditors secured claim. In Szostek it expressly and unquestionably had. The question was whether the proposed treatment satisfied the requirement of Bankruptcy Code § 6 1325(a)(5)(B)(ii). The Circuit Court held that while arguably the plan in issue did not do so, the policy of finality evidenced in Bankruptcy Code § 6 1327 compelled upholding the plan as confirmed. The Debtors argue that the same theory holds true here, however the Court disagrees.
The Debtors' amended Chapter 13 plan was filed in direct response to the proof of claim filed by the City of Philadelphia. The City's claim on its face, however, addresses only the Debtors' obligation for water and sewer charges, and not its secured real estate tax claim. Despite the Debtors' desire to find ambiguity in these circumstances by virtue of the City's failure to include outstanding real estate taxes in its filed proof of claim, the Court finds no such ambiguity. The claim, very simply, is for water and sewer charges alone, and does not include real estate taxes. By the same token, no reasonable reading of the Debtors' amended Chapter 13 plan permits an interpretation that this amended plan covers both priority and unsecured water and sewer charges, and secured real estate taxes. Again, there is really no ambiguity. As the City correctly notes, however, even if one were to agree that there is an ambiguity in the plan, the doubt must be resolved against the Debtors as the architects of their plan. In re Fawcett, 758 F.2d 588 (11th Cir.1985).
It is patently clear, moreover, that the Debtors themselves appreciated the existence of two separate claims. Their Bankruptcy schedules confirm that fact. Indeed, the schedules confirm the Debtors' awareness that the City claimed an indebtedness in excess of $5,000 for realty taxes, in addition to the roughly $1,200 it claimed in water and sewer charges. The Court rejects the Debtors' argument that the City's lien for real estate taxes fails to enjoy the protection ordinarily accorded secured claims in a Chapter 13 case because the City filed an allegedly "incomplete" proof of claim. It is well established that the holder of a secured claim need not file a proof of claim at all, but instead may elect to have its lien pass through a bankruptcy case unaffected. Lellock, supra, Whether through inadvertence or design, the City is in this position. Szostek therefore is not implicated.
The Debtors' reliance on In re Dennis, 230 B.R. 244 (Bankr.D.N.J.1999) to alter this result is misplaced. Dennis holds that if a Chapter 13 plan does propose to modify a creditor's secured claim by paying that creditor less than the creditor believes is owed, then such creditor must object to that treatment by filing a timely proof of claim, or it will be bound by the terms of the confirmed plan. Dennis, however, involved a cramdown Chapter 13 plan which, once again, expressly addressed the secured claim in issue and proposed modification of the creditors' rights. The Court rejects the argument that the text of the Debtors' amended Chapter 13 plan can be so interpreted. As the City notes, the introduction to Paragraph 2(b) of the amended plan provides that holders of allowed secured claims shall retain the liens securing those claims. The Debtors respond that the foregoing preamble is intended to refer only to the identified secured creditors in Paragraph 2 of the plan, a group which did not include the City. The Court agrees that this is helpful to the Debtors, because it is the most reasonable interpretation of the language in this section of the Debtors' amended plan. It is another matter, however, to contend, as the Debtors do, that Paragraph 2A of the amended plan, which *215 speaks of a distribution to the City for a priority claim only, was intended to extinguish the City's secured claim for realty taxes in light of an alleged abandonment of such claim by the City through the filing of its proof of claim. The relevant documents simply do not support that interpretation, nor does the chronology of events suggest this to be in any way a reasonable inference for the Court to draw.
The undisputed facts likewise give rise to no grounds for the invocation of equitable or judicial estoppel. As noted in In re Okan's Foods Inc. 217 B.R. 739 (Bankr.E.D.Pa.1998)
Equitable estoppel focuses on the relationship between the parties and prevents a party from assuming a position inconsistent with an earlier position upon which another party reasonably relied. See Godwin v. Schramm, 731 F.2d 153, 160 (3d Cir.), cert. denied sub nom., Behrend v. Godwin, 469 U.S. 882, 105 S. Ct. 250, 83 L. Ed. 2d 187 (1984); see also, Novelty Knitting Mills, Inc. v. Siskind, 500 Pa. 432, 457 A.2d 502, 503 (1983) ("Equitable estoppel is a doctrine that prevents one from doing an act differently than the manner in which another was induced by word or deed to expect. . . . [It] recognizes that an informal promise implied by one's words, deeds or representations which leads another to rely justifiably thereon to his own injury or detriment, may be enforced in equity."). Judicial estoppel, on the other hand, is concerned with the connection between a party and the judicial system itself. Judicial estoppel prevents a party from assuming a position in one proceeding that is inconsistent with a prior position asserted by that party either in the same or in an earlier proceeding. McCarron v. F.D.I.C., 111 F.3d 1089, 1097 (3d Cir.1997), cert. denied, ___ U.S. ___, 118 S. Ct. 689, 139 L. Ed. 2d 635 (1998); Government of the Virgin Islands v. Paniagua, 922 F.2d 178, 183 (3d Cir.1990); Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3d Cir.1988). The purpose of judicial estoppel is to prevent a party from playing "fast and loose" with the courts. United States v. Vastola, 989 F.2d 1318, 1324 (3d Cir.1993). The determination of whether to apply either doctrine in a particular case lies within the sound discretion of the trial court.
The Debtors argue that they relied on the City's Proof of Claim as evidence of the City's position that no real estate taxes were owed by them. Even if this is in fact true, which the Court will assume given that this is a dismissal motion under F.R.C.P. 12(b)(6), as a matter of law the Court finds such reliance to be unjustified and patently unreasonable. The Debtors' Bankruptcy schedules reflect their awareness of a claim against them for real estate taxes. The Proof of Claim filed by the City conspicuously omits any provision for real estate taxes, but instead expressly delineates that the entirety of the claimed amount relates to water and sewer charges. To conclude on these facts that the City had inexplicably abandoned any claim for known unpaid real estate taxes is exceedingly unreasonable. Indeed, the proposition is so improbable as to seem little more than an attempt by the Debtors to create for themselves a windfall.
An even weaker case exists for the application of judicial estoppel. The Court discerns no attempt on the part of the City to "play fast and loose" with the Court. Moreover, for the reasons discussed above, the Court rejects the proposition that the claim that real estate taxes for the years in question remain owing is necessarily inconsistent with any position the City previously took during the pendency of this case.
In reaching the above determination, the Court is mindful of the well established liberal standard for the evaluation of motions brought pursuant to F.R.C.P. 12(b)(6). Specifically, a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support *216 of its claim which would entitle it to relief. Conley v. Gibson 355 U.S. 41, 45, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957);
A motion to dismiss pursuant to Rule 12(b)(6) may be granted only if, accepting all well pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief. Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3rd Cir.1986). "This issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974).
Even giving effect to the above liberal standards the Debtors' complaint is fatally deficient. The Court has construed the facts in the light most favorable to the Debtors, however, the Court is not obliged to, nor has it, accepted the unreasonable inferences which the Debtors request. In this respect the Court accepts the assertion that the Debtors genuinely believed that the proof of claim filed by the City represented the entirety of the claims owed by them to the City. This belief, however, does not mandate the invocation of the Circuit Court's holding in Szostek, particularly given the holding of Lellock, and the fact that the documents (i.e., both the amended plan and the proof of claim) are essentially plain on their face. The latter fact, too, undercuts the Debtors' equitable estoppel argument, as the Court finds that the Debtors' reliance on their own implausible interpretation of the facts is neither justified nor reasonable. Judicial estoppel, meanwhile, is basically inapposite, because, as noted, there is really nothing inconsistent in the position the City takes herein, nor is there even an allegation that the City's present position is either born of bad faith, or evidence of a prior intention to mislead. In short, the Debtors' dilemma is of their own creation, and unfortunately for them they will have to endure the consequences.
For all of the foregoing reasons, the City's Motion to Dismiss the Debtors' complaint will be granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2567264/ | 396 F. Supp. 2d 1053 (2005)
Angela RAMOS, Plaintiff,
v.
The State of NEBRASKA and Jon C. Bruning, Nebraska Attorney General, in his official capacity, Defendants.
No. 4:05CV3056.
United States District Court, D. Nebraska.
October 17, 2005.
*1054 Robert B. Creager, Anderson, Creager Law Firm, Lincoln, NE, for Plaintiff.
Jennifer M. Tomka, Attorney General's Office, Lincoln, NE, for Defendants.
MEMORANDUM AND ORDER
KOPF, District Judge.
The plaintiff, Angela Ramos ("Ramos"), has filed a § 1983 action against the State of Nebraska and the Nebraska Attorney General, seeking declaratory relief only. The defendants have moved to dismiss the action. Their motion will be granted.
I. BACKGROUND
Following a series of hearings in the County Court of York County, Nebraska, Ramos's parental rights to five minor children were terminated pursuant to Neb.Rev.Stat. § 43-292(2), (6), and (7).[1]*1055 (Amended Complaint, ¶¶ 6-7.) Ramos appealed the termination order to the Nebraska Supreme Court, claiming, among other things, that she was denied effective assistance of counsel and that her due process rights were violated because her attorney did not file a timely appeal from an earlier County Court order that changed the permanency objective of Ramos's rehabilitation plan from family reunification to termination of her parental rights. (Id., ¶¶ 9, 13.) The Nebraska Supreme Court affirmed the termination order on February 28, 2003, and denied rehearing on April 23, 2003. See In re Interest of Joshua R., 265 Neb. 374, 657 N.W.2d 209 (2003). (Id., ¶ 11.)
Ramos alleges that the Nebraska Supreme Court rejected her appeal without considering whether she had a due process right to effective assistance of counsel or whether she was prejudiced by her attorney's failure to perfect an appeal from the County Court's order changing the rehabilitation plan. (Id., ¶ ¶ 11, 13.) She also complains that "[t]he [Nebraska Supreme] Court's conclusion that any violation of her due process rights with respect to counsel's untimely appeal of the change in plan was attenuated by her opportunity to fully contest the merits of the termination proceeding was arbitrary and capricious,...." (Id., ¶ 13.)
Ramos requests this court to declare: (1) "that the termination of her parental rights was procured in violation of her constitutional right to due process of law[;]" (2) "that in the event that the State seeks to terminate her parental rights ... [to] her remaining children, the State ... must provide [] her with effective assistance of counsel[;]" and (3) "that the State of Nebraska cannot terminate the parental rights of a party unless such party is provided a procedure for challenging a termination on the grounds that the party was *1056 not afforded effective assistance of counsel[.]" (Id., pp. 4-5.) Such declaratory relief allegedly is sought under authority of 42 U.S.C. § 1983 and 28 U.S.C. § 2201. (Id., ¶¶ 4, 5.)
Named as defendants in this action are the State of Nebraska and the Nebraska Attorney General, Jon C. Bruning, who is sued in his official capacity only. Ramos alleges that she was deprived "of her fundamental right to the possession, custody and control of her natural born children, in violation of her rights to due process of law and equal protection of the law" because the defendants (1) "permitt[ed] the termination of [parental] rights to occur when the record evidence showed that the [plaintiff's] court appointed attorney failed to timely appeal a court order changing the objective of the proceeding from reunification to termination," and (2) "fail[ed] to provide any procedural remedy or safeguard in the process... [to protect against] errors, neglect, or unreasonable actions by counsel." (Id., ¶ 14.)
Ramos alleges that she "was prejudiced as the result of her attorney's unreasonable and ineffective presentation of the case against termination" because (1) "termination of parental rights could be based solely on the fact that the children had otherwise been in foster care for 15 of the last 22 months,"[2] and (2) "a successful appeal would have precluded the case moving toward termination." (Id., ¶ 15.) Concerning her request for prospective relief, Ramos simply alleges that she "has other minor children that could be subject to further action by the State to terminate her parental rights as to those children." (Id., ¶ 17.)
The defendants have moved to dismiss the plaintiff's action, pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6), and, in support of their motion, argue that: (1) the State is immune from suit under the Eleventh Amendment; (2) the action is barred by the Rooker-Feldman doctrine; (3) Ramos does not have standing; and (4) the action is barred by the Supreme Court's holdings in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994), and Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997). As will be discussed in some detail below, I generally agree with the defendants' first three arguments, but not the fourth, and I conclude that the plaintiff's action must be dismissed for lack of subject matter jurisdiction. Although not specifically argued by the defendants, I also find that no equal protection claim is stated.
II. DISCUSSION
"A court does not obtain subject-matter jurisdiction just because a plaintiff raises a federal question in his or her complaint. If the asserted basis of federal jurisdiction is patently meritless, then dismissal for lack of jurisdiction is appropriate. Because this is a facial rather than a factual challenge to jurisdiction, [the court must] determine whether the asserted jurisdictional basis is patently meritless by looking to the face of the complaint, and drawing all reasonable inferences in favor of the plaintiff." Biscanin v. Merrill Lynch & Co., Inc., 407 F.3d 905, 907 (8th Cir.2005) (citations omitted). However, a district court may also make factual determinations when deciding a Rule 12(b)(1) motion. See Faibisch v. University of Minnesota, 304 F.3d 797, 801 (8th Cir.2002) (district court's fact findings concerning availability of relief sought by plaintiff reviewed for clear error).
*1057 A court may take judicial notice of public records when considering a motion to dismiss, including a Rule 12(b)(6) motion.[3]See Stahl v. United States Dept. of Agriculture, 327 F.3d 697, 700 (8th Cir.2003); Faibisch, 304 F.3d at 802-03. Accordingly, I have considered the Nebraska Supreme Court's published opinion in In re Interest of Joshua R. that is cited in the plaintiff's amended complaint and discussed in the defendants' brief. See Conforti v. United States, 74 F.3d 838, 840 (8th Cir.1996) (federal courts may sua sponte take judicial notice of proceedings in other courts if they relate directly to the matters at issue).
With respect to the defendants' Rule 12(b)(6) motion, I must accept the allegations in the complaint as true and draw reasonable inferences in favor of the nonmoving party, dismissing only if it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. See Moses.com Securities, Inc. v. Comprehensive Software Systems, Inc., 406 F.3d 1052, 1062 (8th Cir.2005). Although the pleading standard is liberal, the plaintiff must allege facts not mere legal conclusions that, if true, would support the existence of the claimed constitutional violations. See id.
A. Eleventh Amendment Immunity
"The Eleventh Amendment generally bars suits brought against the states in federal courts."[4]In re SDDS, Inc., 97 F.3d 1030, 1035 (8th Cir.1996). "The immunity recognized by the Eleventh Amendment extends to both suits for monetary damages and those for declaratory or injunctive relief." Id. "In Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), however, the Supreme Court established a fundamental exception to the Eleventh Amendment's immunity doctrine ... [by recognizing] that suits may be brought in federal court against state officials in their official capacities for prospective injunctive relief to prevent future violations of federal law." Id. (quotation and citation omitted).
Congress did not abrogate the states' Eleventh Amendment immunity by enacting 42 U.S.C. § 1983. See Williams v. Missouri, 973 F.2d 599, 600 (8th Cir.1992); Quern v. Jordan, 440 U.S. 332, 345, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979). See also Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989) (a state is not a "person" within the meaning of section 1983).[5]*1058 It is also well-settled that the State of Nebraska has not waived its immunity from liability in civil rights actions. See Poor Bear v. Nesbitt, 300 F. Supp. 2d 904, 913-14 (D.Neb.2004) (citing cases). Thus, regardless of the relief sought,[6] the plaintiff cannot maintain a § 1983 claim directly against the State of Nebraska.[7]See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996) (the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment.)
However, "State officials acting in their official capacities are § 1983 `persons' when sued for prospective relief, and the Eleventh Amendment does not bar such relief." Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir.1997). See also Will, 491 U.S. at 71 n. 10, 109 S. Ct. 2304 ("Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under § 1983 because `official-capacity actions for prospective relief are not treated as actions against the State.'") (quoting Kentucky v. Graham, 473 U.S. 159, 167 n. 14, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985)). The plaintiff's § 1983 claim therefore may proceed against the Nebraska Attorney General to the extent that she seeks prospective declaratory or injunctive relief, but not otherwise.
Most of Ramos's allegations are concerned with the conduct of past judicial proceedings in the County Court of York County, Nebraska, and in the Nebraska Supreme Court, and she specifically seeks the entry of a declaratory judgment providing "that the termination of her parental rights [as ordered and affirmed in those state proceedings] was procured in violation of her constitutional right to due process of law."[8] Ramos argues that such a declaratory judgment may be entered because "[u]nder the requested relief, a favorable ruling by this court could have no effect on the decision of the Nebraska Supreme Court upholding the termination of her parental rights." (Filing 42, p. 4 *1059 (emphasis omitted).) However, a declaratory judgment is not available if it would "serve no useful purpose as a final determination of rights." Green v. Mansour, 474 U.S. 64, 73 & n. 2, 106 S. Ct. 423, 88 L. Ed. 2d 371 (1985); Public Service Com'n v. Wycoff, 344 U.S. 237, 247, 73 S. Ct. 236, 97 L. Ed. 291 (1952). This court cannot declare that the plaintiff's constitutional rights were violated during the state court proceedings unless such a declaration will somehow alter the status quo.
Obviously, an award of damages is not possible. See Edelman v. Jordan, 415 U.S. 651, 663, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974) ("[A] suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment."). It is not evident, though, that the plaintiff's parental rights could not be reinstated consistent with the Eleventh Amendment. For example, several circuits have held requests for reinstatement of employment to be prospective relief. See Meiners v. Univ. of Kansas, 359 F.3d 1222, 1232-33 (10th Cir.2004); Koslow v. Pennsylvania, 302 F.3d 161, 179 (3d Cir.2002); Doe v. Lawrence Livermore Nat. Lab., 131 F.3d 836, 839-41 (9th Cir.1997); Williams v. Kentucky, 24 F.3d 1526, 1544 (6th Cir.1994); Elliott v. Hinds, 786 F.2d 298, 302 (7th Cir.1986); Dwyer v. Regan, 777 F.2d 825, 836 (2d Cir.1985), modified, 793 F.2d 457 (1986).
The difference between permissible and impermissible relief is "the difference between prospective relief on one hand and retrospective relief on the other." Quern, 440 U.S. at 337, 99 S. Ct. 1139. Although the difference is not always easy to ascertain, see Edelman, 415 U.S. at 667, 94 S. Ct. 1347 ("As in most areas of the law, the difference between the type of relief barred by the Eleventh Amendment and that permitted under Ex Parte Young will not in many instances be that between day and night."), "Young has been focused on cases in which a violation of federal law by a state official is ongoing as opposed to cases in which federal law has been violated at one time or over a period of time in the past, as well as on cases in which the relief against the state official directly ends the violation of federal law as opposed to cases in which that relief is intended indirectly to encourage compliance with federal law through deterrence or directly to meet third-party interests such as compensation." Papasan v. Allain, 478 U.S. 265, 277-78, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986). "Relief that in essence serves to compensate a party injured in the past by an action of a state official in his official capacity that was illegal under federal law is barred even when the state official is the named defendant." Id. at 278, 106 S. Ct. 2932. "On the other hand, relief that serves directly to bring an end to a present violation of federal law is not barred by the Eleventh Amendment even though accompanied by a substantial ancillary effect on the state treasury." Id.
Reinstatement is considered an appropriate remedy for unlawfully discharged state employees "because termination without due process is the very unlawful act at issue; reinstatement pending a hearing thus `serves directly to bring an end to a present violation of federal law[.]'" Whalen v. Massachusetts Trial Court, 397 F.3d 19, 30 (1st Cir.2005) (quoting Papasan and distinguishing reinstatement from compensatory restoration of service credits for the period of unemployment), cert. denied, 126 S. Ct. 379, 2005 WL 2414211, 74 USLW 3050 (2005) (Oct. 3, 2005). In the present case, however, the alleged due process violation concerns a failure by Ramos's court-appointed attorney to file a timely appeal from an order that was entered even before the State of Nebraska moved to terminate Ramos's parental *1060 rights.[9] As held by the Nebraska Supreme Court, Ramos's due process claim ignores "that she was given notice and a full opportunity to litigate the issue of the termination of her parental rights when the State's termination motions came on for trial on December 20 and 21, 2001." In re Interest of Joshua R., 657 N.W.2d at 215. In other words, Ramos has not alleged an ongoing due process violation that might be remedied by reinstatement of her parental rights pending a new hearing. See, e.g., Sonnleitner v. York, 304 F.3d 704, 718-19 (7th Cir.2002) (no ongoing due process violation where demoted state employee ultimately was granted a full and fair hearing). True, Ramos has alleged that the Nebraska Supreme Court's denial of her due process claim was arbitrary and capricious, but, as will be discussed next, only the United States Supreme Court has jurisdiction to review that ruling.
B. Rooker-Feldman Doctrine
"The Rooker-Feldman doctrine provides that, `with the exception of habeas corpus petitions, lower federal courts lack subject matter jurisdiction over challenges to state court judgments.'" Lemonds v. St. Louis County, 222 F.3d 488, 492 (8th Cir.2000) (citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S. Ct. 149, 68 L. Ed. 362 (1923)). District courts have no authority to review state court decisions, "even if those challenges allege that the state court's action was unconstitutional," Feldman, 460 U.S. at 486, 103 S. Ct. 1303, 75 L. Ed. 2d 206, because "federal jurisdiction to review most state court judgments is vested exclusively in the United States Supreme Court, Lemonds, 222 F.3d at 492 (citations omitted)." *1061 Gisslen v. City of Crystal, 345 F.3d 624, 627 (8th Cir.2003). "The doctrine bars federal courts from hearing cases brought by the losing parties in state court proceedings alleging `injury caused by the state-court judgment and seeking review and rejection of that judgment.'" Mosby v. Ligon, 418 F.3d 927, 931 (8th Cir.2005) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S. Ct. 1517, 1526, 161 L. Ed. 2d 454 (2005)). "[A] party losing in state court is barred from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights." Johnson v. De Grandy, 512 U.S. 997, 1005-06, 114 S. Ct. 2647, 129 L. Ed. 2d 775 (1994). "In other words, original federal jurisdiction over state-court judgments is reserved to the Supreme Court." Heartland Academy Community Church v. Waddle, 335 F.3d 684, 689 (8th Cir.2003).
The doctrine thus precludes federal district court jurisdiction over federal claims that are "inextricably intertwined" with claims of the state court action. Gisslen, 345 F.3d at 627. A federal claim is inextricably intertwined if "the federal claim succeeds only to the extent that the state court wrongly decided the issues before it." Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25, 107 S. Ct. 1519, 95 L. Ed. 2d 1 (1987) (Marshall, J., concurring). The claim, however, "is not precluded if it is `separable from and collateral to the merits of the state-court judgment.'" Fielder v. Credit Acceptance Corp., 188 F.3d 1031, 1034 (8th Cir.1999) (quoting Pennzoil, 481 U.S. at 21, 107 S. Ct. 1519 (Brennan, J., concurring)). The claim will also not be precluded if litigants do not have a "reasonable opportunity to raise their federal claims" before the state court. Prince v. Arkansas Bd. of Examiners in Psychology, 380 F.3d 337, 341 (8th Cir.2004). "[F]ederal plaintiffs cannot be said to have had a reasonable opportunity to raise their federal claims in state court where the state court declines to address those claims and rests its holding solely on state law." Simes v. Huckabee, 354 F.3d 823, 829 (8th Cir.2004).
In this instance, the Nebraska Supreme Court addressed the plaintiff's federal due process claim. The Court "assum[ed] without deciding that the April 26 order [changing Ramos's rehabilitation plan] was an appealable order ... [and] conclude[d] that [she] was not denied due process." In re Interest of Joshua R., 657 N.W.2d at 214. Although Ramos alleges that "[t]he Supreme Court denied [her] claim without determining whether she had a `due process' right to `effective assistance of counsel'" (Amended Complaint, ¶ 11), the Court specifically stated that "due process is required in cases involving termination of parental rights, and we analyze Angela's claim under due process principles." Id. at 215. As described by the Court, Ramos "claim[ed] in effect that because her counsel filed an untimely appeal of the court's order changing the permanency objective from reunification to termination of parental rights, she was denied due process." Id. This assignment of error was held to be without merit because, despite the untimeliness of the first appeal, Ramos thereafter was provided a full and fair hearing regarding the State's motions for termination of her parental rights. See id.
Ramos now wants this court to find that the Nebraska Supreme Court's holding is wrong, and, in this regard, she argues that the dismissal of the first appeal was unfairly prejudicial, notwithstanding the conduct of the subsequent county court proceedings. However, only the United States Supreme Court has jurisdiction to entertain such an argument. See 28 U.S.C. § 1257 ("Final judgments or decrees rendered *1062 by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court by writ of certiorari ... where any title, right, privilege, or immunity is specifically set up or claimed under the Constitution or the treaties or statutes of ... the United States.").
Insofar as Ramos seeks a declaratory judgment that the termination of her parental rights was procured in violation of her due process rights, the Rooker-Feldman doctrine clearly prevents this court from exercising jurisdiction over such claim.[10] Ramos, of course, also requests declarations that she must be provided effective assistance of counsel if the State moves to terminate her parental rights with respect to her other children, and that the State must provide a procedure for challenging termination orders on the basis of ineffective assistance of counsel. Whether the Rooker-Feldman doctrine applies to bar these requests for prospective relief is less clear, but, based upon the parties' arguments, I find that it does.
The Rooker-Feldman doctrine bars both straightforward and indirect attempts by a plaintiff to "undermine state court decisions." Prince, 380 F.3d at 340 (quoting Lemonds, 222 F.3d at 492). If the federal claims "so closely implicate the decision of the state court," the federal suit is barred even if the plaintiff is not directly asking the district court to overturn the state court judgment. Gisslen, 345 F.3d at 629 (quoting Lemonds, 222 F.3d at 493). "Deciding whether Rooker-Feldman controls this case `requires determining exactly what the state court held' to ascertain whether granting the requested federal relief would either void the state court's judgment or effectively " Lemonds, 222 F.3d at 493 (quoting Charchenko v. City of Stillwater, 47 F.3d 981, 983 (8th Cir.1995)) (footnote omitted).
While a declaration from this court that "in the event that the State seeks to terminate [Ramos's] parental rights of (sic) her remaining children, the State of Nebraska must provided (sic) her with effective assistance of counsel" (Amended Complaint, p. 4) on its face would not seem to undermine the Nebraska Supreme Court's decision in In re Interest of Joshua R., the plaintiff states in her brief that her declaratory judgment action "attacks the premise of the prior state court rulings as to whether she has a due process right to `effective' assistance of counsel." (Filing 42, p. 5.) This statement is inconsistent with Ramos's allegation that the Nebraska Supreme Court failed to decide whether she had a due process right to effective assistance of counsel (see Amended Complaint, ¶ 11), but, notably, the defendants also imply that the Court's decision in In re Interest of Joshua R. was premised on the non-existence of such a constitutional right (stating that the Court held "that there is no right to effective assistance of counsel in a civil proceeding and that the Plaintiff was not denied due process in the termination hearings."). (Filing 40, p. 1).
Actually, the Nebraska Supreme Court merely "observe[d] that juvenile proceedings are civil rather than criminal in nature, *1063 and that we have previously stated that an individual has no constitutional right to effective assistance of counsel in a civil proceeding." Id., 657 N.W.2d at 214 (citations omitted). The Court further stated that "we have ruled that a statutory right to the appointment of counsel does not give rise to an ineffective assistance of counsel claim in a civil postconviction case." Id. at 215 (citation omitted). As a final statement of law, however, the Court "acknowledged that due process is required in cases involving termination of parental rights," and thus it "analyze[d] Angela's [ineffective assistance of counsel] claim under due process principles." Id. at 214-15.
If, as appears to be the case, Ramos is contending that the Nebraska Supreme Court wrongly held there is no due process right to effective representation of counsel in juvenile court proceedings for the termination of parental rights, or at least not at the stage of the proceedings where Ramos claimed that her due process rights were violated, then the Rooker-Feldman doctrine applies. While I do not read the opinion in In re Interest of Joshua R. in the same way as the parties, since I think the Nebraska Supreme Court simply determined that Ramos was not prejudiced by her attorney's error, I am not authorized to reverse any holding that the Court arguably made regarding Ramos's past entitlement to effective representation of counsel.[11]
Similarly, if the result would be to undermine the decision in In re Interest of *1064 Joshua R., then I am unable to declare "that the State of Nebraska cannot terminate the parental rights of a party unless such party is provided a procedure for challenging a termination on the grounds that the party was not afforded effective assistance of counsel." (Amended Complaint, pp. 4-5). It may be, for example, that Ramos is seeking a declaration that the Nebraska Supreme Court erred as a matter of law in concluding that due process was satisfied because "she was given notice and a full opportunity to litigate the issues of the termination of her parental rights when the State's termination motions came on for trial[.]" In re Interest of Joshua R., 657 N.W.2d at 215. Even though the requested relief is framed as a general proposition of law, it is directed straight at the Nebraska Supreme Court's holding that Ramos was not prejudiced by the untimely appeal from the rehabilitation plan change.
I therefore conclude that the plaintiff's action against the Nebraska Attorney General is in all respects barred by the Rooker-Feldman doctrine. However, even if the requests for prospective declaratory relief are not "inextricably intertwined" with the In re Interest of Joshua R. holding, jurisdiction is still lacking because there is no justiciable case or controversy under Article III of the United States Constitution.
C. Standing
To show Article III standing, a plaintiff must demonstrate (1) an "injury in fact" that is both "concrete and particularized" and "actual or imminent, not conjectural or hypothetical," (2) "a causal connection between the injury and the conduct complained of," and (3) a likelihood, as opposed to mere speculation, "that the injury will be redressed by a favorable decision." In re Operation of Missouri River System Litigation, 421 F.3d 618, 637 (8th Cir.2005) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)).
The Supreme Court's decision in Feldman drew a distinction for purposes of 28 U.S.C. § 1257 between actions seeking review of a state court's disposition of a specific claim and actions "mount[ing] a general challenge to the constitutionality" of state legislation. Feldman, 460 U.S. at 482-83, 103 S. Ct. 1303, 75 L. Ed. 2d 206. Only the Supreme Court has jurisdiction over the former, while the latter can be heard by federal district courts in which jurisdiction is otherwise proper. Id.
But Feldman does not relieve [the plaintiff] of the requirement that she demonstrate Article III standing,.... Because Feldman dealt primarily with the definition of judicial proceedings for the purposes of the Rooker-Feldman doctrine, the opinion "should not be read as implicating the standing of a litigant seeking declaratory or injunctive relief." Grendell v. Ohio Supreme Court, 252 F.3d 828, 837 (6th Cir.2001). Such litigants still must satisfy the normal requirements of Article III standing. See id. at 836-38; Landers Seed Co. v. Champaign Nat'l Bank, 15 F.3d 729, 732 (7th Cir.1994); Facio v. Jones, 929 F.2d 541, 543-45 (10th Cir.1991).
Article III of the United States Constitution confines the jurisdiction of federal courts to justiciable cases and controversies. U.S. Const. art. III, § 2; Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Such cases and controversies include only those claims that allege *1065 some "injury in fact" redressable by a favorable judgment. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 124 S. Ct. 2301, 2308, 159 L. Ed. 2d 98 (2004). To satisfy this "injury in fact" requirement, a plaintiff seeking prospective relief against future conduct of defendants who caused injury in the past must show that she faces "a real and immediate threat that she would again suffer similar injury in the future." Park v. Forest Serv. of the United States, 205 F.3d 1034, 1037 (8th Cir.2000) (internal quotations and brackets omitted); see O'Shea v. Littleton, 414 U.S. 488, 496, 94 S. Ct. 669, 38 L. Ed. 2d 674 (1974). In addition to satisfying Article III standing requirements, litigants must stay within "prudential limitations" on the exercise of federal-court jurisdiction. Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975). One such limitation is a rule that parties "generally must assert [their] own legal rights and interests, and cannot rest [their] claim to relief on the legal rights or interests of third parties." Id. at 499, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343.
Mosby, 418 F.3d at 932-33 (footnote omitted).
Ramos's allegation that she "has other minor children that could be subject to further action by the State to terminate her parental rights as to those children" is insufficient to show a "real and immediate threat of repeated injury." O'Shea, 414 U.S. at 496, 94 S. Ct. 669. Even if it might be assumed that the State of Nebraska is likely to take some action for the protection of Ramos's other minor children, there is no reason to suppose that Ramos will not be appointed counsel as required by Nebraska law,[12] or that her counsel will not be effective. Any prospective relief sought by the plaintiff in this case necessarily entails "speculation and conjecture," and for that reason is not available. See id. at 497, 94 S. Ct. 669.
D. Heck and Edwards
While I conclude that the plaintiff's action must be dismissed for the reasons discussed above, I will briefly consider one final argument presented by the State of Nebraska and the Nebraska Attorney General. The defendants argue that:
Habeas proceedings in federal court provide a remedy for criminal defendants whose convictions were imposed under circumstances where counsel for the habeas petitioner is determined to be have been "ineffective." The Plaintiff herein is attempting to interject this purely criminal law remedy into a civil action involving alleged unconstitutional infringements upon her interest in her family relations. To the extent the Plaintiff likens a restraint upon personal movement to the wholly separate interest in the family relationship, the criminal law counterpart to the Rooker-Feldman doctrine [i.e., the Supreme Court's holdings in Heck and Edwards] should apply to these proceedings.[13]
. . . . .
*1066 As in Heck and Edwards, the Plaintiff's challenge to the procedure of the termination hearings based upon due process principles is undeniably aimed at challenging the validity of the "sentence" imposed by the state court, i.e., the termination of her parental rights. There are no allegations that the "conviction or sentence" has been reversed on direct appeal, expunged by executive order, or declared invalid by a state tribunal authorized to make such determination. In fact, it was upheld by the highest court in the State of Nebraska.
(Filing 40, p. 11.)
A simple answer to this argument is that the right to effective assistance of counsel is not "purely" a criminal law or Sixth Amendment concept. A claim of ineffective assistance of counsel can also be based on the Fifth Amendment's Due Process Clause. See Obleshchenko v. Ashcroft, 392 F.3d 970, 971 (8th Cir.2004) (deportation proceeding); Nativi-Gomez v. Ashcroft, 344 F.3d 805, 807 (8th Cir.2003) (same). The Due Process Clause of the Fifth Amendment is textually identical to the Due Process Clause of the Fourteenth Amendment, and both proscribe virtually identical governmental conduct. Carhart v. Gonzales, 413 F.3d 791, 795 n. 2 (8th Cir.2005), petition for cert. filed, No. 05-380 (Sep. 23, 2005).
Indeed, in Bruner v. Dunning, 731 F.2d 527, 528 (8th Cir.1984), the Court of Appeals affirmed a decision by this court in Bruner v. Nebraska, No. CV82-L-129, slip op. (D.Neb. June 30, 1983) (Urbom, J.), that denied on the merits an ineffective assistance of counsel claim in a § 1983 action in which the plaintiff claimed that her parental rights were terminated without due process of law.[14] Judge Urbom found, and the Eighth Circuit agreed, that Bruner had failed to "show that her appointed counsel `failed to exercise the customary skills and diligence that a reasonably competent attorney would exercise under similar circumstances' and that, as a result, she was `materially prejudiced' in the defense of her claims in state court."[15]*1067 731 F.2d at 528 (quoting United States v. McMillan, 606 F.2d 245, 247 (8th Cir.1979)). Consistent with Bruner, the Nebraska Supreme Court's decision in In re Interest of Joshua R. clearly recognized that Ramos's ineffective assistance of counsel claim was founded upon due process principles.
In the present action, Ramos likewise "seeks a declaration by this Court that the State of Nebraska violated her rights as secured by the Fourteenth Amendment to the United States Constitution, including her right to Due Process and Equal Protection of the Law." (Amended Complaint, ¶ 17.) I have already held that the Rooker-Feldman doctrine precludes such a declaration with respect to Ramos's due process claim,[16] and, consequently, there is no need to explore whether Heck and Edwards might be extended by analogy to apply in this case.
III. CONCLUSION
This court does not have subject matter jurisdiction over the plaintiff's due process claim, and she has failed to allege an actionable equal protection claim. Her action therefore will be dismissed with prejudice.
Accordingly,
IT IS ORDERED that the defendants' motion to dismiss (filing 39) is granted, and that judgment shall be entered by separate document.
NOTES
[1] Section 43-292 provides, in relevant part:
The court may terminate all parental rights between the parents or the mother of a juvenile born out of wedlock and such juvenile when the court finds such action to be in the best interests of the juvenile and it appears by the evidence that one or more of the following conditions exist:
. . . . .
(2) The parents have substantially and continuously or repeatedly neglected and refused to give the juvenile or a sibling of the juvenile necessary parental care and protection;
. . . . .
(6) Following a determination that the juvenile is one as described in subdivision (3)(a) of section 43-247, reasonable efforts to preserve and reunify the family if required under section 43-283.01, under the direction of the court, have failed to correct the conditions leading to the determination;
(7) The juvenile has been in an out-of-home placement for fifteen or more months of the most recent twenty-two months;
. . . . .
Neb.Rev.Stat. Ann. § 43-292 (LexisNexis 1999).
Section 43-247(3)(a), which is referenced in the preceding statute, provides the juvenile court in each county with jurisdiction of:
Any juvenile ... who is homeless or destitute, or without proper support through no fault of his or her parent, guardian, or custodian; who is abandoned by his or her parent, guardian, or custodian; who lacks proper parental care by reason of the fault or habits of his or her parent, guardian, or custodian; whose parent, guardian, or custodian neglects or refuses to provide proper or necessary subsistence, education, or other care necessary for the health, morals, or well-being of such juvenile; whose parent, guardian, or custodian is unable to provide or neglects or refuses to provide special care made necessary by the mental condition of the juvenile; or who is in a situation or engages in an occupation dangerous to life or limb or injurious to the health or morals of such juvenile.
Neb.Rev.Stat. Ann. § 43-247(3)(a) (LexisNexis Supp.2004). Unless a separate juvenile court has been established in a county, "the county court sit[s] as a juvenile court[.]" Neb.Rev.Stat. Ann. § 43-245(5) (LexisNexis Supp.2004).
[2] The five children were removed from Ramos's care on November 30, 1999, and placed in protective custody with the Nebraska Department of Health and Human Services. They were still in foster care when the termination hearing was held on December 20-21, 2001. See In re Interest of Joshua R., 657 N.W.2d at 210.
[3] A district court may also consider matters outside the pleadings when subject matter jurisdiction is challenged under Rule 12(b)(1), without converting the motion into one for summary judgment. See Harris v. P.A.M. Transport, Inc., 339 F.3d 635, 638 n. 4 (8th Cir.2003). In this case, however, no evidentiary materials have been presented.
[4] The Eleventh Amendment provides:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S.C.A. Const. Amend. XI (West 1987).
"The Eleventh Amendment provides states, and state agencies, with immunity not only from suits brought by citizens of other states, but also from suits brought by their own citizens. Eleventh Amendment immunity, however, is not absolute. The Supreme Court has recognized, among other exceptions, that a state may waive its sovereign immunity by consenting to suit." Doe v. Nebraska, 345 F.3d 593, 597 (8th Cir.2003) (citations omitted).
[5] Section 1983 provides that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress,...." 42 U.S.C.A. § 1983 (West 2003).
[6] Ramos alleges that she "seeks only declaratory relief under 28 U.S.C. § 2201 for claims arising under the United States Constitution, and not monetary, compensatory or punitive damages." (Amended Complaint, ¶ 5.)
[7] Federal district courts have original jurisdiction "of any civil action authorized by law to be commenced by any person... [t]o redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States...." 28 U.S.C.A. § 1343(a)(3) (West 1993). Federal district courts also have original jurisdiction "of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C.A. § 1331 (West 1993). These jurisdictional statutes do not abrogate the states' Eleventh Amendment immunity, either. See Standing Rock Sioux Indian Tribe v. Dorgan, 505 F.2d 1135, 1137-38 (8th Cir.1974) ("[W]here properly invoked, the Eleventh Amendment bars the action regardless of the statutory basis of jurisdiction"); Los Angeles Branch NAACP v. Los Angeles Unified School Dist., 714 F.2d 946, 950 (9th Cir.1983) ("Neither 28 U.S.C. § 1331, nor § 1343, nor 42 U.S.C. § 1983 contains an expression of Congressional intent to abrogate [the states'] immunity. Therefore none operates to lift the Eleventh Amendment bar.").
[8] Ramos also seeks forward-looking declarations providing that she must receive effective assistance of counsel in any future proceedings to terminate her parental rights to her other children and that, in general, there must be a procedure whereby a parent's ineffective assistance of counsel claim will survive a termination hearing. As against the Nebraska Attorney General, these requests for prospective relief are not barred by the Eleventh Amendment.
[9] The procedural history of the termination proceeding was detailed by the Nebraska Supreme Court in In re Interest of Joshua R., as follows:
On December 1, 1999, five separate petitions were filed, one as to each of the Angela's children, alleging that the subject child was a juvenile as described under Neb.Rev.Stat. § 43-247(3)(a) (Reissue 1998). The five proceedings were consolidated below and on appeal. An adjudication hearing was held on December 16. In the [county] court's December 17 order, each child was adjudicated a juvenile within the meaning of § 43- 247(3)(a).... Angela did not appeal the adjudication order.
A hearing was held on January 27, 2000, and a disposition order was entered on February 7, setting forth a rehabilitation plan for Angela and spelling out a number of goals,.... The permanency objective was reunification. Angela did not appeal the disposition order establishing the rehabilitation plan. Periodic dispositional hearings were held. In orders filed on May 24 and December 15, the court continued the original plan and goals with minor changes.
A permanency hearing was held on December 13, 2000, and continued on January 18 and February 13, 2001. In an order filed on April 26, the court determined that based upon the evidence presented at the hearing, ... it was "inappropriate to continue to consider reunification with Angela and that the proper permanency plan [was for] the state [to file] a petition for termination of parental rights as to each of the [children]."...
On May 29, 2001, Angela filed a notice of appeal in each of the cases, seeking to appeal the court's April 26 order changing the permanency objective from reunification to termination of parental rights. The Nebraska Court of Appeals dismissed the appeals as untimely, having been filed more than 30 days after the entry of the order appealed from. See In re Interest of DeChelly R. et al., 10 Neb.App. ---- (Nos. A-01-685 through A-01-689, July 31, 2001).
On May 17, 2001, the State filed motions for termination of parental rights in each of the five children's proceedings....
. . . . .
On December 20, 2001, and continuing on December 21, the State's motions for termination came on for hearing. Angela was present and represented by counsel. A total of 13 witnesses testified. Documentary evidence was received.
657 N.W.2d at 211-13.
[10] The plaintiff's pleadings also contains stray allegations that she was denied equal protection. (Amended Complaint, ¶¶ 14, 17.) The Nebraska Supreme Court did not address an equal protection claim in In re Interest of Joshua R., but there are no facts alleged in the present action to indicate the existence of a viable equal protection claim. Ramos claims that she was deprived of "her fundamental right to the possession, custody and control of her natural born children," (Amended Complaint, ¶ 14), but she has not alleged "that some government action caused her to be treated differently from others similarly situated." Gilmore v. County of Douglas, 406 F.3d 935, 937 (8th Cir.2005) (threshold showing for equal protection claim). Ramos's conclusory allegations are insufficient to state an actionable equal protection claim.
[11] A few months ago, in In re Interest of Heather R., 269 Neb. 653, 694 N.W.2d 659, 664-65 (2005), involving a juvenile adjudication proceeding, the Nebraska Supreme Court explained, and expanded upon, its rationale in deciding Ramos's case, stating:
We recently stated in a case involving termination of parental rights, that "juvenile proceedings are civil rather than criminal in nature" and that "an individual has no constitutional right to effective assistance of counsel in a civil proceeding." In re Interest of Joshua R. et al., 265 Neb. 374, 381, 657 N.W.2d 209, 214 (2003). See, also, In re Interest of Azia B., 10 Neb.App. 124, 626 N.W.2d 602 (2001). In In re Interest of Joshua R. et al., our rationale stemmed from the fact that the right to counsel and the corresponding right to effective counsel derived from the Sixth Amendment are limited to "criminal prosecutions." We further observed that "a statutory right to the appointment of counsel does not give rise to an ineffective assistance of counsel claim in a civil postconviction case," 265 Neb. at 382, 657 N.W.2d at 215, and we reasoned that a similar result was indicated in juvenile proceedings. Our rationale for this reasoning was the fact that appointment of counsel in a civil case where such appointment is not required by the federal Constitution need not be accompanied by a corresponding entitlement to effective counsel. See Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991) (stating that because there is no constitutional right to counsel in postconviction proceedings, there is no claim of ineffective assistance of counsel). Although the instant case involves an adjudication, we note that the U.S. Supreme Court has held that while the federal Constitution does not require that counsel be appointed for parents in every parental rights termination proceeding, due process might require appointment of counsel in certain parental rights termination proceedings. Lassiter v. Department of Social Services, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981).
. . . . .
Although we did not find entitlement to an ineffective assistance of counsel claim in In re Interest of Joshua R. et al., 265 Neb. 374, 657 N.W.2d 209 (2003), we nevertheless noted that due process is required in cases involving termination of parental rights. Id. ... The fundamental fairness concept of the Due Process Clause of the 14th Amendment informs our assessment of the protections which are appropriate in juvenile matters. See In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967).
As is evident from the claims on appeal in this case, as a practical matter, due process claims challenging the adequacy of representation by counsel in juvenile cases commonly encompass assertions that in a criminal case might be characterized as "ineffective assistance of counsel" claims....
[12] Neb.Rev.Stat. Ann. § 43-279.01 (LexisNexis 1999), provides, in part:
(1) When the petition alleges the juvenile to be within the provisions of subdivision (3)(a) of section 43-247 or when termination of parental rights is sought pursuant to subdivision (6) or (7) of section 43-247 and the parent or custodian appears with or without counsel, the court shall inform the parties of the:
. . . . .
(b) Right to engage counsel of their choice at their own expense or to have counsel appointed if unable to afford to hire a lawyer;
. . . . .
[13] In Heck v. Humphrey, 512 U.S. 477, 487, 114 S. Ct. 2364, 129 L. Ed. 2d 383 (1994) the Supreme Court held that "when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." In Edwards v. Balisok, 520 U.S. 641, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997), the Supreme Court applied Heck in the context of a § 1983 claim for damages and declaratory relief brought by a state prisoner challenging the validity of the procedures used to deprive him of good-time credits.
[14] The termination was set aside by the Nebraska Supreme Court, but that portion of the trial court's order placing continuing custody of Bruner's child in the Department of Public Welfare was affirmed. See In re Interest of McKinzie, 212 Neb. 399, 323 N.W.2d 78, 80 (1982). In the § 1983 action, therefore, Bruner's ineffective assistance of counsel claim was analyzed with respect to her loss of custody.
[15] Specifically, Judge Urbom "found that counsel's failure to call certain witnesses was not prejudicial because it did not appear that the proposed testimony would have been relevant to the issue of Bruner's ability to provide for her son's special needs[;] ... that although counsel's failure to discuss defenses may have been a breach of his duty to consult with Bruner, any resulting prejudice was merely unsupported speculation[;]... that any prejudice resulting from counsel's failure to warn her of the consequences of missing hearings was moot by virtue of the Nebraska Supreme Court's reversal of the juvenile court's decision to terminate her parental rights[;]... that Bruner failed to establish that counsel's failure to fully develop a plan for Bruner's resumption of custody was prejudicial in that she presented no evidence that counsel could have developed a viable plan[; and] ... that counsel's failure to object to evidence appeared to be the result of tactical choices rather than a dereliction of duty." Bruner, 731 F.2d at 528.
[16] With respect to Ramos's invocation of the Equal Protection Clause, I have held that her amended complaint fails to state a claim upon which relief can be granted. See note 10, supra. Dismissal is therefore appropriate under Rule 12(b)(6). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263463/ | 142 F.Supp. 707 (1956)
Aurelia S. BROWDER, and Susie McDonald, and Claudette Colvin, by Q. P. Colvin, next friend, and Mary Louise Smith, by Frank Smith, next friend, and others similarly situated, Plaintiffs,
v.
W. A. GAYLE, Clyde Sellers and Frank Parks, individually and as members of the Board of Commissioners of the City of Montgomery, Alabama, and Goodwyn J. Ruppenthal, individually and as Chief of Police of the City of Montgomery, Alabama, and The Montgomery City Lines, Inc., a Corporation, and James F. Blake, and Robert Cleere, and C. C. (Jack) Owen, Jimmy Hitchcock, and Sibyl Pool, as members of the Alabama Public Service Commission, Defendants.
No. 1147.
United States District Court M. D. Alabama, N. D.
June 5, 1956.
*708 *709 Charles D. Langford, Fred D. Gray, Montgomery, Ala., and Robert L. Carter, New York City, for plaintiffs.
Walter J. Knabe, Drayton N. Hamilton, and Herman H. Hamilton, Jr., Montgomery, Ala., for defendants Gayle, Sellers, Parks, and Ruppenthal.
Robert Thrun, New York City, for defendants Blake, Cleere, and Montgomery City Lines.
John Patterson, William N. McQueen, Gordon Madison, William F. Black, Montgomery, Ala., for defendants Owen, Hitchcock and Pool.
Before RIVES, Circuit Judge, and LYNNE and JOHNSON, District Judges.
*710 RIVES, Circuit Judge.
Statement of the Case
The purpose of this action is to test the constitutionality of both the statutes of the State of Alabama[1] and the ordinances of the City of Montgomery[2] which require the segregation of the white and colored races on the motor buses of the Montgomery City Lines, Inc., *711 a common carrier of passengers in said City and its police jurisdiction.
The plaintiffs are four Negro citizens who bring this action for themselves and on behalf of all other Negroes similarly situated.[3] The defendants are the members of the Board of Commissioners and the Chief of Police of the City of Montgomery, the members of the Alabama Public Service Commission, The Montgomery City Lines, Inc., and two of its employee drivers.
Each of the four named plaintiffs has either been required by a bus driver or by the police to comply with said segregation laws or has been arrested and fined for her refusal so to do. The plaintiffs, along with most other Negro citizens of the City of Montgomery, have since December 5, 1955, and up to the present time, refrained from making use of the transportation facilities provided by Montgomery City Lines, Inc. Plaintiffs and other Negroes desire and intend to resume the use of said buses if and when they can do so on a non-segregated basis without fear of arrest.
The members of the Board of Commissioners and the Chief of Police of the City of Montgomery in their answers to the complaint admit "that they seek to enforce the statutes of the State of Alabama and the ordinances of the City of Montgomery, Alabama", and further aver that "segregation of privately owned buses within cities within the State of Alabama is in accordance with the laws of the State of Alabama and the City of Montgomery."
The members of the Alabama Public Service Commission deny that they, in their official capacities as such members have any jurisdiction over, or have issued any orders relating to the separation of the races on buses operated wholly within the City of Montgomery and its police jurisdiction. On information and belief they allege that the members of the Board of Commissioners and the Chief of Police of said City "have sought to enforce by legal means constitutional and valid statutes and ordinances providing for separate but equal seating arrangements on buses operated in the City of Montgomery, Alabama, and its police jurisdiction".
The Montgomery City Lines, Inc., admits that it has operated, and pursuant to orders of a State Court, continues to operate "its buses as required by the Statutes and Ordinances set out in the Complaint requiring it to provide equal but separate accommodations for the white and colored races". Without dispute the evidence is to the effect that, other than being separate, such accommodations are equal.
The defendants, Blake and Cleere, admit they are employees of the Montgomery City Lines and drivers of its buses, that as such they have acted pursuant to orders of said Company which "has operated its buses on the basis of racial segregation as required by said statutes and ordinances". They deny that as drivers of said buses they are exercising the powers of police officers in the enforcement of said statutes and ordinances.
*712 The complaint prays for the convening of a three-judge district court as provided by Title 28 of the United States Code, § 2284; for a declaratory judgment as to whether the enforcement of said statutes and ordinances abridges the privileges and immunities of plaintiffs as citizens of the United States, or deprives them of liberty without due process of law, or denies to them the equal protection of the laws, as secured by the Fourteenth Amendment to the Constitution of the United States,[4] and the rights and privileges secured to them by Title 42, United States Code, §§ 1981 and 1983.[5] The complaint further prays that the defendants be both temporarily and permanently enjoined from enforcing the statutes and ordinances claimed to be unconstitutional and in conflict with said Federal statutes.
Federal Jurisdiction
Federal jurisdiction is invoked under Title 28, United States Code, §§ 1331 and 1343(3),[6] and under Title 42, United States Code, §§ 1981 and 1983, footnote 5, supra. We think that the validity of both the State statutes and the City ordinances is in question, but if only the City ordinances are involved, Federal jurisdiction would still exist because the Constitution and statutes of Alabama authorize the adoption of City ordinances "not inconsistent with the laws of the state,"[7] and because the constitutional phrase "equal protection of the laws" refers to City ordinances adopted under State authority as well as to State statutes.[8]
*713 Jurisdiction of Three Judge District Court
A three judge district court is required for the granting of "An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State". 28 U.S.C.A. § 2281. According to the complaint and the answers, the separation of the races on the buses is required both by State statutes and by City ordinances. Admittedly, therefore, State statutes are involved. The defendants claim, however, that the statutes and ordinances are being enforced by municipal officers only, and not by "any officer of such State". 28 U.S. C.A. § 2281, supra.
If the members of the Alabama Public Service Commission are proper parties defendant, a matter to be hereinafter discussed, then it must be conceded that the objection to the jurisdiction of the three judge district court fails. Irrespective of the answer to that question, however, we think that the three judge district court has jurisdiction.
The State statutes, footnote 1, supra, vest in the defendant bus drivers the authority to enforce, and, notwithstanding their insistence to the contrary, we think that when so engaged the bus drivers clearly are officers of the State.
The City Commissioners have important duties to perform in connection with the enforcement, operation, and execution of State statutes. Under Alabama law, a municipal corporation "is essentially a public agency, a local unit of government, invested with a portion of the sovereign power of the state, for the benefit of its inhabitants." Cooper v. Town of Valley Head, 212 Ala. 125, 101 So. 874, 875. The defendant Chief of Police has authority to make arrests for violations of State statutes, 1940 Code of Alabama, Title 15, § 152. The City Recorder in criminal cases has the power of an ex-officio justice of the peace. 1940 Code of Alabama, Title 37, § 585. All of the City officials admit in their answers that they are enforcing the State statutes. An official, though localized by his geographic activities and the mode of his selection, is performing a State function when he enforces a statute which "embodies a policy of state-wide concern".[9]
Very clearly, the three judge district court has jurisdiction.[10]
Comity
The defendants, relying on Alabama Public Service Commission v. Southern Railway Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002, insist that even if the Federal court has jurisdiction, it should, in its discretion as a court of equity, and for reasons of comity, decline to exercise such jurisdiction until the State courts have ruled on the construction and validity of the statutes and ordinances. The short answer is that doctrine has no application where the plaintiffs complain that they are being deprived of constitutional civil rights, for the protection of which the Federal courts have a responsibility as heavy as that which rests on the State courts.[11]
*714 Parties
Without repeating the averments of the complaint we hold that they are clearly sufficient to constitute this a class action on behalf of the four individual plaintiffs and of all other Negro citizens similarly situated. See Rule 23(a), F.R. C.P.
It was probably not necessary for the plaintiffs to sue the members of the Board of Commissioners and the Chief of Police, not only as such but also individually, when no relief is sought against them by way of damages. If, however, the plaintiffs' contentions are sustained, these defendants are acting not only in their capacities as municipal officers, but also as officers of the State; and, further, are possibly transcending the scope of their office in any capacity when they compel obedience to statutes and ordinances attacked as unconstitutional. Moreover, in issuing and enforcing an injunction, a court of equity acts in personam. If, as we trust will be true, no relief becomes necessary against any of them in their individual capacities, their joinder as individuals will prove harmless. The motion to strike said parties in their individual capacities is therefore denied.
The members of the Alabama Public Service Commission object to their joinder as parties defendant and move to dismiss the action as against them because they say that neither they nor the Commission have any jurisdiction over the buses which are being operated within the City of Montgomery and its police jurisdiction.[12]
In the Act approved July 6, 1945, General Acts of Alabama 1945, p. 731, now carried into the pocket supplement of the 1940 Code of Alabama as Title 48, § 301 (31a), see footnote 1, supra, appears the following significant paragraph: "The provisions of this section shall be administered and enforced by the Alabama public service commission in the manner in which provisions of the Alabama Motor Carrier Act of 1939 are administered and enforced."
Testifying as a witness, the President of the Alabama Public Service Commission admitted that on April 24, 1956, he sent a telegram to the National City Lines of Chicago, of which the Montgomery City Lines, Inc., is a subsidiary, reading as follows:
"As President of the Alabama Public Service Commission, elected by the people of Alabama, sworn to uphold the segregation laws of this state, which include all forms of public transportation, I hereby defy ruling handed down by the United States Supreme Court ordering desegregation on public carriers. Alabama state law requiring segregation of the races on buses still stands. All public carriers in Alabama are hereby directed to strictly adhere to all present existing segregation laws in our state or suffer the consequences.
"/s/ C. C. (Jack) Owen, President
Alabama Public Service"
That telegram was sent without the knowledge or concurrence of the other two Commissioners.
Since the 1945 Act expressly imposes on the Alabama Public Service Commission the duty of administering and enforcing its requirements as to segregation of the races, and since the President of the Commission has acted so positively and affirmatively to that end, the motion to dismiss the action as against the members of the Alabama Public Service Commission should be and the same is hereby denied.[13]
*715 Validity of Separate But Equal Doctrine as Applied to Intrastate Transportation
The ultimate question is whether the statutes and ordinances requiring the segregation of the white and colored races on the common carrier motor buses in the City of Montgomery and its police jurisdiction are unconstitutional and invalid. Unless prohibited by the Constitution of the United States, the power to require such segregation is reserved to the States or to the people.See Tenth Amendment.
In their private affairs, in the conduct of their private businesses, it is clear that the people themselves have the liberty to select their own associates and the persons with whom they will do business, unimpaired by the Fourteenth Amendment. The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. Indeed, we think that such liberty is guaranteed by the due process clause of that Amendment.
There is, however, a difference, a constitutional difference, between voluntary adherence to custom and the perpetuation and enforcement of that custom by law. Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161. The Fourteenth Amendment provides that "No State shall * * * deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Those provisions do not interfere with the police power of the States so long as the state laws operate alike upon all persons and property similarly situated. Barbier v. Connolly, 113 U.S. 27, 31, 32, 5 S.Ct. 357, 28 L.Ed. 923. That Amendment "merely requires that all persons subjected to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed." Marchant v. Pennsylvania Railroad Co., 153 U.S. 380, 390, 14 S.Ct. 894, 897, 38 L.Ed. 751. The equal protection clause requires equality of treatment before the law for all persons without regard to race or color. See e. g. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664; Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149; Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161.
In Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, decided in 1896, the Supreme Court held as to intrastate commerce that a Louisiana statute, LSA-R.S. 45:528 et seq., requiring railway companies to provide equal but separate accommodations for the white and colored races was not in conflict with the provisions of the Fourteenth Amendment. That holding was repeatedly followed in later cases. Chesapeake & Ohio Ry. Co. v. Kentucky, 1900, 179 U.S. 388, 21 S.Ct. 101, 45 L.Ed. 244; Chiles v. Chesapeake & Ohio Ry. Co., 1910, 218 U.S. 71, 30 S.Ct. 667, 54 L.Ed. 936; McCabe v. Atchison, T. & S. F. Ry. Co., 1914, 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169.
In Morgan v. Virginia, 1946, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317, the Court held that a state statute requiring segregated seats for Negro passengers on interstate buses was an unconstitutional burden of interstate commerce. In Henderson v. United States, 1950, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302, the Court held that interstate railroad regulations and practices assigning a separate table in a dining car to Negroes contravened the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq. The Court referred to the statutory right as "a fundamental right of equality of treatment," and cited cases construing the Fourteenth Amendment, see 339 U.S. 825, 70 S.Ct. 847, though the Court did not reach the constitutional question. The reasoning applied was similar to that employed in Shelley v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 92 L.Ed. 1161, where the Court recognized that the underlying philosophy of the Fourteenth Amendment is the equality before the law of each individual.
In the field of college education, beginning in 1938 and continuing to the present *716 time, the Court has first weakened the vitality of, and has then destroyed, the separate but equal concept. State of Missouri ex rel. Gaines v. Canada, 1938, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sipuel v. Board of Regents of University of Oklahoma, 1948, 332 U.S. 631, 68 S.Ct. 299, 92 L.Ed. 247; Fisher v. Hurst, 1948, 333 U.S. 147, 68 S.Ct. 389, 92 L.Ed. 604; Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114; McLaurin v. Oklahoma State Regents, 1950, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149; State of Florida ex rel. Hawkins v. Board of Control of Florida, 1954, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112; Tureaud v. Board of Supervisors of Louisiana State University, 1954, 347 U.S. 971, 74 S.Ct. 784, 98 L.Ed. 1112; Lucy v. Adams, 1955, 350 U.S. 1, 76 S.Ct. 33; State of Florida ex rel. Hawkins v. Board of Control, 350 U.S. 413, 76 S.Ct. 464; Board of Trustees of University of North Carolina v. Frasier, 1956, 350 U.S. 979, 76 S.Ct. 467.
The separate but equal concept had its birth prior to the adoption of the Fourteenth Amendment in the decision of a Massachusetts State court relating to public schools. Roberts v. City of Boston, 1849, 5 Cush. 198, 59 Mass. 198. The doctrine of that case was followed in Plessy v. Ferguson, supra. In the School Segregation Cases, Brown v. Board of Education of Topeka, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and Bolling v. Sharpe, 1954, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, the separate but equal doctrine was repudiated in the area where it first developed, i. e., in the field of public education. On the same day the Supreme Court made clear that its ruling was not limited to that field when it remanded "for consideration in the light of the Segregation Cases * * * and conditions that now prevail" a case involving the rights of Negroes to use the recreational facilities of city parks. Muir v. Louisville Park Theatrical Association, 1954, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112.
Later the Fourth Circuit expressly repudiated the separate but equal doctrine as applied to recreational centers. Dawson v. Mayor and City Council of Baltimore, 4 Cir., 220 F.2d 386, 387. Its judgment was affirmed by the Supreme Court, 350 U.S. 877, 76 S.Ct. 133. The doctrine has further been repudiated in holdings that the cities of Atlanta and of Miami cannot meet the test by furnishing the facilities of their municipal golf courses to Negroes on a segregated basis. Rice v. Arnold, 340 U.S. 848, 71 S.Ct. 77, 95 L.Ed. 621; Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141.
Even a statute can be repealed by implication. A fortiori, a judicial decision, which is simply evidence of the law and not the law itself, may be so impaired by later decisions as no longer to furnish any reliable evidence.[14]
*717 We cannot in good conscience perform our duty as judges by blindly following the precedent of Plessy v. Ferguson, supra, when our study leaves us in complete agreement with the Fourth Circuit's opinion[15] in Flemming v. South Carolina Electric & Gas Co., 224 F.2d 752, appeal dismissed April 23, 1956, 351 U.S. 901, 76 S.Ct. 692, that the separate but equal doctrine can no longer be safely followed as a correct statement of the law. In fact, we think that Plessy v. Ferguson has been impliedly, though not explicitly, overruled, and that, under the later decisions, there is now no rational basis upon which the separate but equal doctrine can be validly applied to public carrier transportation within the City of Montgomery and its police jurisdiction. The application of that doctrine cannot be justified as a proper execution of the state police power.[16]
We hold that the statutes and ordinances requiring segregation of the white and colored races on the motor buses of a common carrier of passengers in the City of Montgomery and its police jurisdiction violate the due process and equal protection of the law clauses of the Fourteenth Amendment to the Constitution of the United States. This holding does not, however, become effective until the entry of formal judgment. The parties are requested to submit to the Court in writing within two weeks from the date of this opinion their views as to the form of judgment to be entered, and as to whether such judgment should be stayed in the event of an appeal.
LYNNE, District Judge (dissenting).
Only a profound, philosophical disagreement with the ultimate conclusion of the majority "that the separate but equal doctrine can no longer be safely followed as a correct statement of the law" would prompt this, my first dissent. But I should consider myself recreant both to conscience and duty in withholding *718 my views because of the affection and esteem which I bear for my associates.
For many years as a trial judge in the state and federal systems I have endeavored faithfully to understand and apply precedents established by the opinions of appellate courts. This was not a blind obedience to a legalistic formula embodied in the rule of stare decisis. It was the result of a simple belief that the laws which regulate the conduct, the affairs, and sometimes the emotions of our people should evidence not only the appearance but also the spirit of stability.
Judges of trial courts frequently find themselves in disagreement with the rationale of an old, but clearly controlling precedent. That is so because their positions do not insulate them from those changing physical and metaphysical concepts which form a part of the life process. But they are neither designed nor equipped to perform the legislative function of putting off the old and putting on the new. To arrogate to themselves this prerogative, in my humble opinion, would be the first, fatal step in making hollow the proud boast that ours is a "government of laws and not of men."
Judge Rives, just the other day, delivering the opinion of the Court of Appeals for the Fifth Circuit, sitting en banc, in Howard v. United States, 232 F.2d 274, 275, stated my position, clearly and concisely:
"In the face of such recognition by the Supreme Court of a test of criminal responsibility, we do not feel at liberty to consider and decide whether in our opinion the recent modification of such test in the District of Columbia is sound or unsound, nor whether some other test should be adopted. This Circuit follows the law as stated by the Supreme Court and leaves any need for modification thereof to that Court. * * *." (Emphasis supplied.)
The majority recognize, it was conceded in oral arguments by counsel for plaintiffs, that Plessy v. Ferguson, 1896, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, is precisely in point, and that its holding has been repeatedly followed in later transportation cases.[1] Its authority obviously was unaffected by the action of the Supreme Court in dismissing the appeal in South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901, 76 S.Ct. 692. The citation of Slaker v. O'Connor, 278 U.S. 188, 49 S.Ct. 158, 73 L.Ed. 258, is convincing that it did not place the stamp of its approval upon the decision of the Fourth Circuit in Flemming v. South Carolina Electric & Gas Co., 224 F.2d 752, but simply concluded that its judgment was not final and hence that the appeal did not lie. 28 U.S.C.A. § 1254(2).
In complete agreement with the Fourth Circuit's opinion in Flemming that the separate but equal doctrine can no longer be safely followed as a correct statement of the law, the majority conclude that Plessy v. Ferguson, in which that doctrine made its first appearance sixty years ago, has been impliedly, though not explicitly overruled. While I share their great respect for Judges Parker, Soper and Dobie, I do not at all agree.
A comparatively new principle of pernicious implications has found its way into our jurisprudence.[2] Lower courts may feel free to disregard the precise precedent of a Supreme Court opinion if they perceive a "pronounced new doctrinal trend" in its later decisions which would influence a cautious judge to prophesy that in due time and in a proper *719 case such established precedent will be overturned explicitly. Peculiarly appropriate in this context is the following language of Judge Woodbury, writing for the First Circuit in New England Mutual Life Ins. Co. v. Welch, 153 F.2d 260, 262:
"Furthermore we find no indication from anything said therein of a purpose to depart from the rule of the earlier decisions cited above. Under these circumstances we see no occasion even to consider the basic question whether we would adopt the doctrine of Barnette v. West Virginia State Board of Education, D.C., 47 F.Supp. 251, 253, and Spector Motor Service v. Walsh, 2 Cir., 139 F.2d 809, 817, 823, and in extraordinary situations disregard controlling decisions of the Supreme Court not yet explicitly overruled. It will suffice to say that we would feel disposed to consider taking such a course only when there are the clearest indications that the controlling decision of the Supreme Court, though not formally overruled, would no longer be followed by that Court and we find no such indications here."
In 1950, the Fourth Circuit had before it the case of Boyer v. Garrett, 183 F.2d 582, involving an officially adopted rule providing for the segregation of races in athletic activities in the public parks and playgrounds in the City of Baltimore. In affirming the judgment of the District Court, the same judges who decided Flemming held:
"The contention of plaintiffs is that, notwithstanding this equality of treatment, the rule providing for segregation is violative of the provisions of the federal Constitution. The District Court dismissed the complaint on the authority of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; and the principal argument made on appeal is that the authority of Plessy v. Ferguson has been so weakened by subsequent decisions that we should no longer consider it as binding. We do not think, however, that we are at liberty thus to disregard a decision of the Supreme Court which that court has not seen fit to overrule and which it expressly refrained from reexamining, although urged to do so, in the very recent case of Sweatt v. Painter, [339 U.S. 629] 70 S.Ct. 848 [94 L.Ed. 1114]. It is for the Supreme Court, not us, to overrule its decisions or to hold them outmoded."
In 1955, in Flemming, an intrastate transportation case, reversing the district judge, the court wrote:
"We do not think that the separate but equal doctrine of Plessy v. Ferguson, supra, can any longer be regarded as a correct statement of the law. That case recognizes segregation of the races by common carriers as being governed by the same principles as segregation in the public schools; and the recent decisions in Brown v. Board of Education [of Topeka], 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, which relate to public schools, leave no doubt that the separate but equal doctrine approved in Plessy v. Ferguson has been repudiated. That the principle applied in the school cases should be applied in cases involving transportation, appears quite clearly from the recent case of Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302, where segregation in dining cars was held violative of a section of the interstate commerce act providing against discrimination."
Within this five year interval the Supreme Court had spoken pertinently but once, in the case of Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, since Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L. Ed. 884, did not discuss Plessy v. Ferguson and appears to have been decided on a parity of reasoning. My study of Brown has convinced me that it left unimpaired the "`separate but equal'" [347 U.S. 483, 74 S.Ct. 688] doctrine in a *720 local transportation case and I perceive no pronounced new doctrinal trend therein.
Of course I appreciate the care with which the Supreme Court limits its pronouncements upon great constitutional questions to the narrow issues before it and the only issue in Brown involved a collision between the Fourteenth Amendment and state laws commanding segregation in the public schools. But in Brown the Court's opinion referred to Plessy v. Ferguson six times and to its "`separate but equal'" doctrine on four occasions. It epitomized its concept of that doctrine as follows: "Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate." Its ultimate conclusion was, and this I conceive to be the rationale of its decision, "that in the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal."
It seems to me that the Supreme Court therein recognized that there still remains an area within our constitutional scheme of state and federal governments wherein that doctrine may be applied even though its applications are always constitutionally suspect and for sixty years it may have been more honored in the breach than in the observance. Granted that the trend of its opinions is to the effect that segregation is not to be permitted in public facilities furnished by the state itself and the moneys of the state, as in the case of public schools, or public parks, cf. Muir v. Louisville Park Theatrical Association, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112; Dawson v. Mayor and City Council of Baltimore, 4 Cir., 220 F.2d 386, affirmed 350 U.S. 877, 76 S.Ct. 133, or municipal golf courses, cf. Rice v. Arnold, 340 U.S. 848, 71 S.Ct. 77, 95 L.Ed. 621; Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, on the plain theory that if the state is going to provide such facilities at all, it must provide them equally to the citizens, it does not follow that it may not be permitted in public utilities holding nonexclusive franchises.
If that doctrine has any vitality, this is such a case in which it has been applied fairly. According to its teaching not absolute, but substantial equality is required. Such equality is not a question of dogma, but one of fact. Under the undisputed evidence adduced upon the hearing before us practices under the laws here attacked have resulted in providing the races not only substantially equal but in truth identical facilities.
In my opinion the holding of the Court in Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317, that the attempt of a state to require the segregation of passengers on interstate buses results in the imposition of an undue burden on interstate commerce is wholly irrelevant to the issue before us. And equally inapposite is reference to Henderson v. United States, 339 U.S. 816, 70 S. Ct. 843, 844, 94 L.Ed. 1302 which held that rules and practices of interstate railroad carriers requiring the segregation of passengers in dining cars were offensive to Section 3(1) of the Interstate Commerce Act making it unlawful for a railroad in interstate commerce "`to subject any particular person, * * * to any undue or unreasonable prejudice or disadvantage in any respect whatsoever: * * *.'"
The supremacy of the federal government in matters affecting interstate commerce is axiomatic. Cases involving the exercise of its power in that realm shed no light on Fourteenth Amendment problems. It does seem quite clear that by its terms the Congress is given the power and duty to enforce the Fourteenth Amendment by legislation. Thus the Congress would have the power, thus derived, to proscribe segregation in intrastate transportation. It is worthy of note that for sixty years it has not seen fit to do so.
While any student of history knows that under our system of government vindication of the constitutional rights of the individual is not, and ought not to be, entrusted to the Congress, its reticence *721 to intrude upon the internal affairs of the several states should caution us against doing so where the path of duty is not plainly marked and when we must hold a clear precedent of the Supreme Court outmoded.
Because I would dismiss the action on the authority of Plessy v. Ferguson, I do not reach the procedural questions discussed in the majority opinion. I respectfully dissent.
NOTES
[1] Title 48, § 301(31a, b, c), Code of Alabama of 1940, as amended, which provide:
"§ 301(31a). Separate accommodations for white and colored races.All passenger stations in this state operated by any motor transportation company shall have separate waiting rooms or space and separate ticket windows for the white and colored races, but such accommodations for the races shall be equal. All motor transportation companies or operators of vehicles carrying passengers for hire in this state, whether intrastate or interstate passengers, shall at all times provide equal but separate accommodations on each vehicle for the white and colored races. The conductor or agent of the motor transportation company in charge of any vehicle is authorized and required to assign each passenger to the division of the vehicle designated for the race to which the passenger belongs; and, if the passenger refuses to occupy the division to which he is assigned, the conductor or agent may refuse to carry the passenger on the vehicle; and, for such refusal, neither the conductor or agent of the motor transportation company nor the motor transportation company shall be liable in damages. Any motor transportation company or person violating the provisions of this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than five hundred dollars for each offense; and each day's violation of this section shall constitute a separate offense.
"The provisions of this section shall be administered and enforced by the Alabama public service commission in the manner in which provisions of the Alabama Motor Carrier Act of 1939 are administered and enforced. (1945, p. 731, appvd. July 6, 1945.)
"§ 301(31b). Operators of passenger stations and carriers authorized to segregate white and colored races.All passenger stations in this state operated by or for the use of any motor transportation company shall be authorized to provide separate waiting rooms, facilities, or space, or separate ticket windows, for the white and colored races but such accommodations for the races shall be equal. All motor transportation companies and operators of vehicles, carrying passengers for hire in this state, whether intrastate or interstate passengers, are authorized and empowered to provide separate accommodations on each vehicle for the white and colored races. Any officer or agent of such motor transportation company or operator, in charge of any vehicle, is authorized to assign or reassign each passenger or person to a division, section or seat on the vehicle designated by such company or operator, or by such officer or agent, for the race to which the passenger or person belongs; and if the passenger or person refuses to occupy the division, section or seat to which he is so assigned, such officer or agent may refuse further to carry the passenger on the vehicle. For such refusal neither the officer nor agent, nor the motor transportation company, nor operator, shall be liable in damages. (1947, p. 40, § 1, appvd. July 18, 1947.)
"§ 301(31c). Failure to comply with rules and regulations as to segregation of white and colored races.It shall be unlawful for any person willfully to refuse or fail to comply with any reasonable rule, regulation, or directive of any operator of a passenger station in this state operated by or for the use of any such motor transportation company, or of any authorized officer or agent of such operator, providing separate waiting rooms, facilities, or space, or separate ticket windows, for white and colored races; or willfully to refuse or fail to comply with any reasonable assignment or reassignment by any officer or agent in charge of any vehicle of any such motor transportation company or of any operator of vehicles carrying passengers for hire, of any passenger or person to a division, section, or seat on such vehicle designated by such officer or agent for the race to which such passenger or person belongs; any person so refusing or failing to comply with any such reasonable rule, regulation, or assignment, as aforesaid, shall be guilty of a misdemeanor and upon conviction shall be fined not more than $500.00 for such offense. (1947, p. 40, § 2, appvd. July 18, 1947.)"
[2] Section 10, Chapter 6, Code of the City of Montgomery, 1952, which provides:
"Every person operating a bus line in the city shall provide equal but separate accommodations for white people and negroes on his buses, by requiring the employees in charge thereof to assign passengers seats on the vehicles under their charge in such manner as to separate the white people from the negroes, where there are both white and negroes on the same car; provided, however, that negro nurses having in charge white children or sick or infirm white persons, may be assigned seats among white people.
"Nothing in this section shall be construed as prohibiting the operators of such bus lines from separating the races by means of separate vehicles if they see fit."
Section 11 of Chapter 6, Montgomery City Code of 1952, further provides:
"Any employee in charge of a bus operated in the city shall have the powers of a police officer of the city while in actual charge of any bus, for the purpose of carrying out the provisions of the preceding section, and it shall be unlawful for any passenger to refuse or fail to take a seat among those assigned to the race to which he belongs, at the request of any such employee in charge, if there is such a seat vacant."
[3] Rule 23(a), Fed.Rules Civ.Proc. 28 U.S. C.A.
[4] Fourteenth Amendment, § 1:
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
[5] "§ 1981. Equal rights under the law
"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
"§ 1983. Civil action for deprivation of rights
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
[6] "§ 1331. Federal question; amount in controversy
"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $3,000, exclusive of interest and costs, and arises under the Constitution, laws or treaties of the United States."
"§ 1343. Civil rights
"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
* * * * *
"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States."
[7] Constitution of Alabama of 1901, § 89; Alabama Code of 1940, Title 37, § 455.
[8] Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149; Cf. 42 U.S.C.A. § 1983; Carlson v. People of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed. 1104; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195; City of El Paso v. Texas Cities Gas Co., 5 Cir., 100 F.2d 501.
[9] Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 680, 79 L.Ed. 1322; Rorick v. Board of Commissioners, 307 U.S. 208, 212, 59 S.Ct. 808, 83 L.Ed. 1242; City of Cleveland v. United States, 323 U.S. 329, 332, 65 S.Ct. 280, 89 L.Ed. 274; Watch Tower Bible & Tract Society v. City of Bristol, D.C.Conn., 24 F. Supp. 57, affirmed 305 U.S. 572, 59 S.Ct. 246, 83 L.Ed. 361; Suncrest Lumber Co. v. North Carolina Park Commission, 4 Cir., 29 F.2d 823.
[10] If, however, the proceedings were not such as to require the presence of three judges, the judgment would still be valid as the act of the court of one judge, since that judge concurs and joins in the rendition of the judgment. Public Service Commission v. Brasher Freight Lines, Inc., 312 U.S. 621, 626, 61 S.Ct. 784, 85 L.Ed. 1083; O'Malley v. U. S., 8 Cir., 128 F.2d 676, 687.
[11] Lane v. Wilson, 307 U.S. 268, 274, 59 S.Ct. 872, 83 L.Ed. 1281; Mitchell v. Wright, 5 Cir., 154 F.2d 924, 926; Romero v. Weakley, 9 Cir., 226 F.2d 399, 402; Wilson v. Beebe, D.C.Del., 99 F. Supp. 418, 420. Cf. Doud v. Hodge, 350 U.S. 485, 487, 76 S.Ct. 491.
[12] Compare Code of Alabama 1940, Title 48, § 239 with § 2 of the Alabama Motor Carrier Act of 1939 carried into the pocket supplement of the Alabama Code as Title 48, § 301(2).
[13] If, in law and fact, the Commission has no jurisdiction over the operation of the buses here involved, the retention of the members of the Commission as parties defendant will be harmless to them, even if erroneous.
[14] This principle is aptly illustrated by the difference with which the Fourth Circuit treated Plessy v. Ferguson as a binding precedent in 1950, Boyer v. Garrett, 183 F.2d 582 and in 1955, Flemming v. South Carolina Electric & Gas Co., 224 F.2d 752. In their change of views that distinguished Court headed by Chief Judge Parker was governed by the rule best stated by Judge Parker himself, speaking for a three judge district court in Barnette v. West Virginia State Board of Education, D.C., 47 F.Supp. 251, 252-253:
"Ordinarily we would feel constrained to follow an unreversed decision of the Supreme Court of the United States, whether we agreed with it or not. It is true that decisions are but evidences of the law and not the law itself; but the decisions of the Supreme Court must be accepted by the lower courts as binding upon them if any orderly administration of justice is to be attained. The developments with respect to the Gobitis case [Minersville School District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375] however, are such that we do not feel that it is incumbent upon us to accept it as binding authority. Of the seven justices now members of the Supreme Court who participated in that decision, four have given public expression to the view that it is unsound, the present Chief Justice in his dissenting opinion rendered therein and three other justices in a special dissenting opinion in Jones v. City of Opelika, 316 U.S. 584, 62 S.Ct. 1231, 1251, 86 L.Ed. 1691. The majority of the court in Jones v. City of Opelika, moreover, thought it worth while to distinguish the decision in the Gobitis case, instead of relying upon it as supporting authority. Under such circumstances and believing, as we do, that the flag salute here required is violative of religious liberty when required of persons holding the religious views of plaintiffs, we feel that we would be recreant to our duty as judges, if through a blind following of a decision which the Supreme Court itself has thus impaired as an authority, we should deny protection to rights which we regard as among the most sacred of those protected by constitutional guaranties."
To like effect is the opinion of Judge Frank for the Second Circuit in Perkins v. Endicott Johnson Corporation, 128 F. 2d 208, 217-218:
"We would stultify ourselves and unnecessarily burden the Supreme Court ifadhering to the dogma, obviously fictional to any reader of its history, that alterations in that court's principles of decision never occur unless recorded in explicit statements that earlier decisions are overruledwe stubbornly and literally followed decisions which have been, but not too ostentatiously, modified. `The life of the law,' as Mr. Justice Holmes said, `has been experience.' Legal doctrines, as first enunciated, often prove to be inadequate under the impact of ensuing experience in their practical application. And when a lower court perceives a pronounced new doctrinal trend in Supreme Court decisions, it is its duty, cautiously to be sure, to follow not to resist it." See also United States v. Girouard, 1 Cir., 149 F.2d 760, 765, dissenting opinion of Judge Woodbury, reversed 328 U.S. 61, 66 S.Ct. 826, 90 L. Ed. 1084; New England Mutual Life Ins. Co. v. Welch, 1 Cir., 153 F.2d 260, 262; Picard v. United Aircraft Corp., 2 Cir., 128 F.2d 632, 636; opinion by Judge Learned Hand; Spector Motor Service v. Walsh, 2 Cir., 139 F.2d 809, 814, opinion by Circuit Judge Clark; Gardella v. Chandler, 2 Cir., 172 F.2d 402, 409; United States v. Ullmann, 2 Cir., 221 F.2d 760, 762; "The Attitude of Lower Courts to Changing Precedents", 50 Yale L.J. 1448.
[15] That opinion is entitled to great respect, especially in view of the distinction and learning of the judges who compose that Court, Circuit Judges Parker, Soper and Dobie.
[16] Shelley v. Kraemer, 334 U.S. 1, 21, 68 S.Ct. 836, 92 L.Ed. 1161; Morgan v. Virginia, 328 U.S. 373, 380, 66 S.Ct. 1050, 90 L.Ed. 1317; Buchanan v. Warley, 245 U.S. 60, 74, 38 S.Ct. 16, 62 L. Ed. 149; City of Birmingham v. Monk, 5 Cir., 185 F.2d 859, 862.
[1] Chesapeake & Ohio Ry. Co. v. Kentucky, 1900, 179 U.S. 388, 21 S.Ct. 101, 45 L.Ed. 244; Chiles v. Chesapeake & Ohio Ry. Co., 1910, 218 U.S. 71, 30 S.Ct. 667, 54 L.Ed. 936; McCabe v. Atchison, T & S. F. Ry. Co., 1914, 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169.
[2] Barnette v. West Virginia State Board of Education, D.C.1942, 47 F.Supp. 251; Perkins v. Endicott Johnson Corporation, 2 Cir., 1942, 128 F.2d 208; Spector Motor Service v. Walsh, 2 Cir., 1943, 139 F. 2d 809; Gardella v. Chandler, 2 Cir., 1949, 172 F.2d 402, 409; United States v. Ullmann, 2 Cir., 1955, 221 F.2d 760; United States v. Girouard, 1 Cir., 1945, 149 F.2d 760; 50 Yale Law Journal 1448. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2758289/ | COURT OF CHANCERY
OF THE
STATE OF DELAWARE
DONALD F. PARSONS, JR. New Castle County Courthouse
VICE CHANCELLOR 500 N. King Street, Suite 11400
Wilmington, Delaware 19801-3734
Date Submitted: October 23, 2014
Date Decided: December 8, 2014
Stephen B. Brauerman, Esq. Kurt M. Heyman, Esq.
Vanessa R. Tiradentes, Esq. Melissa N. Donimirski, Esq.
Sara E. Bussiere, Esq. Proctor Heyman LLP
Bayard, P.A. 300 Delaware Avenue, Suite 200
222 Delaware Avenue, Suite 900 Wilmington, DE 19801
Wilmington, DE 19801
Ms. Leilani Zutrau
229 McKinley Parkway
Mineola, NY 11501
Re: Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
Dear Counsel and Ms. Zutrau:
On August 27, 2014, Bayard, P.A. (“Bayard”) moved to withdraw as counsel
for Plaintiff, Leilani Zutrau (“Plaintiff” or “Zutrau”). Bayard also requested a
charging lien in the amount of roughly $300,000. Briefing on Bayard‟s motion
concluded on September 19, and the Court heard oral argument on pending motions
in this case on October 23. While Plaintiff does not oppose Bayard‟s withdrawal, she
does oppose the entry of a charging lien. On November 3, I granted Bayard‟s motion
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
December 8, 2014
Page 2
to withdraw without prejudice to the parties‟ conflicting arguments on the motion for
a charging lien. This Letter Opinion constitutes my ruling on that motion. For the
reasons that follow, I find that a charging lien is appropriate, but not in the amount
Bayard requests.
“An attorney‟s special or charging lien is an equitable right to have costs
advanced and attorney‟s fees secured by the judgment entered in the suit wherein the
costs were advanced and the fee earned.”1 The Delaware Supreme Court recently
held that the charging lien was well established at common law and that Delaware,
which has no relevant statute on the issue, recognizes the common law right of an
attorney to assert a charging lien.2 In that case, the Supreme Court stated that the
charging lien “rests on the „theory that one should not be permitted to profit by the
result of litigation without satisfying the demand of his attorney.‟” 3
Bayard‟s motion for a charging lien presents three issues: (1) whether an
alleged agreement between the parties precludes the entry of a charging lien; (2)
1
7A C.J.S. Attorney & Client § 446 (West 2014).
2
Doroshow, Pasquale, Krawitz & Bhaya v. Nanticoke Mem’l Hosp., Inc., 36
A.3d 336, 340-42 (Del. 2012).
3
Id. at 340 (quoting 2 EDWARD MARK THORNTON, A TREATISE ON ATTORNEYS
AT LAW § 580 (1914)).
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
December 8, 2014
Page 3
generally how the appropriate amount of a charging lien should be determined; and
(3) whether the costs of experts retained on behalf of Plaintiff can be included in the
calculation. I address these issues in turn.
(1) The Parties’ Agreement
The relationship between Plaintiff and Bayard was governed by an engagement
letter dated December 27, 2012, which appears to have been signed by Zutrau on
January 5, 2013 (the “Engagement Letter”). That letter states: “The provisions of this
agreement may not be modified except in a subsequent writing executed by the
parties hereto.” The parties do not dispute that, at some time in mid-2013, Plaintiff
fell behind on her bills and was in breach of the Engagement Letter. An email chain
appended to Zutrau‟s opposition brief indicates that the parties attempted to reach an
agreement as to how to deal with the unpaid fees. In a September 17, 2013 email,
Bayard offered to take the first $100,000 of any judgment and then work out a
payment plan with Zutrau as to the remaining arrears (the “September 17 Email”).
Later emails from Zutrau stated that the September 17 Email did not reflect, from her
perspective, the parties‟ agreement.
Notwithstanding the clause in the Engagement Letter requiring any
amendments to be in writing, Zutrau contends that the parties orally modified the
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
December 8, 2014
Page 4
Engagement Letter.4 Bayard denies the existence of such a modification.
Furthermore, because any amendment had to be in writing, the purported oral
amendment would violate the terms of the Engagement Letter. The only writings in
the record relevant to this question are the Engagement Letter and the subsequent
email chains. By Zutrau‟s own admissions, as stated in her opposition brief and in
the emails attached to it, the September 17 Email did not reflect her understanding of
the parties‟ agreement on the unpaid fees. Based on the evidence presented,
therefore, I find that the parties never reached a final, written agreement modifying
the Engagement Letter. Accordingly, the Engagement Letter alone governed the
relationship between Zutrau and Bayard.
Relying on Faraone v. Ramunno,5 Plaintiff asserts that Bayard cannot seek a
charging lien, because such a lien is equitable in nature and is granted only in the
absence of an express agreement. The Faraone decision, however, did not involve
charging liens.6 In addition, although language from that case suggests that a
4
Zutrau has not specified the terms of this alleged amendment.
5
2005 WL 1654589, at *1 (Del. Super. June 22, 2005) (“A charging lien is an
equitable lien which can be imposed in the absence of an expressed
agreement.”).
6
Id. (“This case is not about a charging lien.”).
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
December 8, 2014
Page 5
charging lien can be imposed when the parties lack an express agreement, the court
did not hold that a charging lien cannot be granted when the parties have an express
agreement. If it had, the Faraone case would be contrary to Doroshow, where the
lawyers who sought, and obtained, a charging lien represented the plaintiffs pursuant
to an express contingent fee agreement.7 Moreover, black-letter law on charging
liens suggests that a fee agreement between the attorney and the client is a
prerequisite—not a bar—to the granting of a charging lien.8 Zutrau‟s first argument,
therefore, runs contrary to settled law.
(2) Scope of the Charging Lien
Zutrau next advances the argument that, even if Bayard can assert a charging
lien, it can do so only to the extent of the recovery created by Bayard‟s efforts. The
underlying litigation in this case involved, among other things, Zutrau suing her
former employer, ICE Systems, Inc. (“ICE”), and its CEO, John Jansing, alleging that
7
Doroshow, 36 A.3d at 339, 342.
8
7A C.J.S. Attorney & Client § 446 (“In order to give rise to a lien, a valid and
enforceable contract for a fee must exist. Accordingly, when an attorney‟s fee
agreement is unlawful, the attorney has no lien for services performed pursuant
to that agreement.”) (footnote omitted); 7 AM. JUR. 2D Attorneys at Law § 317
(West 2014) (“It is necessary to the existence of the lien that there be a valid
contract for fees, either express or implied, entered into between the attorney
and the client.”).
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
December 8, 2014
Page 6
her minority equity interest in ICE was undervalued when it was eliminated in a
reverse stock split.9 Zutrau initially was offered $495,779 for her shares, but objected
to that amount as inadequate. Zutrau sued to obtain more. Under Zutrau‟s theory,
Bayard has no claim on any judgment except to the extent it exceeds $495,779.
Based on the current revised damage calculations of $876,329, that would mean
Bayard could have a claim for a charging lien on a recovery of up to $380,550.
Zutrau‟s position has some appeal and, if this were a contingent fee case,
Zutrau would have a compelling argument that the initial $495,779 should be
excluded from the fee calculation because there was no material risk that she would
recover less than that amount. The Engagement Letter, however, shows that Zutrau
agreed to pay Bayard‟s hourly rates.10 Bayard‟s fees were not contingent on the
recovery and it would be owed the same amount of money whether Zutrau won or
lost. It is no secret that litigation is expensive and that the costs of prosecution easily
9
Zutrau v. Jansing, 2014 WL 3772859, at *2-14 (Del. Ch. July 31, 2014).
10
Based on my review of the relevant cases, I find that the same principles apply
to an unpaid hourly lawyer as apply to a lawyer whose recovery is contingent
on the outcome: both are owed money at the conclusion of the case. See
Doroshow, 36 A.3d at 342 (“Because Doroshow represented [the client] on a
contingent fee basis, the law firm had not been compensated before its work
produced the funds.”) (emphasis added).
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
December 8, 2014
Page 7
can exceed the recovery.11 Here, Zutrau was, and remains, obligated to pay Bayard‟s
fees. That the cost of prosecution conceivably could exceed the recovery does not
excuse Zutrau from paying those fees.
Admittedly, there is language in the Delaware charging lien cases that suggests
that a charging lien may be limited to the amount recovered because of the attorney‟s
assistance.12 Here, that could mean starting with a “true” recovery of $380,550—i.e.,
the approximate benefit Zutrau is likely to receive as a result of her challenge to the
reverse stock split. Plaintiff argues, however, that this amount should be reduced
further by $116,678—the amount of fees she already paid—resulting in a net
recovery or net benefit of $263,872.
11
See Robert G. Bone, Modeling Frivolous Suits, 145 U. PA. L. REV. 519, 529-33
(1997) (distinguishing frivolous lawsuits, which lack merit, from negative
expected value lawsuits, which are meritorious but cost more to prosecute than
any possible recovery).
12
See Doroshow, 36 A.3d at 343 (rejecting a proposed interpretation of a statute
because it would “run counter to the rationale for an attorney‟s charging lien—
that attorneys have a right to compensation for funds recovered by their
efforts”) (emphasis added); Royal Ins. Co. v. Simon, 174 A. 444, 446 (Del. Ch.
1934) (analogizing the charging lien to a mechanic‟s lien and describing one
rationale for the charging lien as “the equity of an attorney to be paid his fees
and expenses out of the judgment in the securing and therefore creation of
which he had contributed of his services, skill and, in case of disbursements, of
his money”) (emphasis added).
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
December 8, 2014
Page 8
Bayard denies that the amount of the benefit recovered is relevant to the scope
of a charging lien. If it is, Bayard contends that: (1) the costs of this litigation, which
the Court ordered Defendant to pay, must be deducted from the amount of fees and
expenses Zutrau seeks to subtract out;13 and (2) the value Bayard achieved by
defeating Jansing‟s $60,307 counterclaim must be added to the recovery. 14 Thus,
from Bayard‟s point of view, this litigation created a benefit to Zutrau exceeding
$440,000.
For the reasons stated in the next section regarding expert fees, I conclude that
the total amount of the charging lien that is appropriate in this case does not exceed
Zutrau‟s lowest-possible net recovery of $263,872. As such, I need not answer the
question, seemingly one of first impression in Delaware, of whether Bayard could
13
On November 11, Bayard submitted a revised Bill of Costs totaling
$40,750.10. Defendant disputes this amount, and seeks to limit the recoverable
costs to $9,293.85. The ongoing controversy over the costs, however, is not
material to the resolution of Bayard‟s motion for a charging lien.
14
Although there is no Delaware precedent on the subject, several cases from
other jurisdictions suggest that a charging lien does not arise for defense of a
counterclaim. See 7A C.J.S. Attorney & Client § 454 (“The charging lien of an
attorney may be restricted to services which the attorney performs on behalf of
a client who asserts affirmatively a cause of action, claim, or counterclaim, as
distinguished from services rendered for a negative purpose, such as to defeat
or defend a cause of action, or claim, set up by a client‟s adversary.”)
(footnotes omitted).
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
December 8, 2014
Page 9
assert a charging lien in excess of the partial amount of the judgment that resulted
from the law firm‟s efforts.
(3) The Expert Fees
Bayard seeks to include in its charging lien the costs of experts called on behalf
of Zutrau at trial. Neither Zutrau nor Bayard cited any Delaware authority pertinent
to this request and this issue also appears to be one of first impression in Delaware.
Bayard argues that the concept underlying the charging lien—paying the costs
necessary to prosecute the case—requires inclusion of the expert fees, because
Bayard used its name and reputation to help retain Zutrau‟s experts. Bayard,
however, has not paid, and is not contractually obligated to pay, these experts‟ fees.
Only Zutrau is responsible for the fees incurred by her experts. Bayard apparently
fears that Zutrau will not pay the experts. If that proves to be true and the expert fees
are not included in the charging lien, Bayard alleges that its ability to retain experts in
the future will be materially impaired.
I find Bayard‟s argument unpersuasive. The rationale underlying the Delaware
charging lien cases is compensating the attorney for her efforts. Thus, the premise
for imposing a charging lien is that an attorney is owed money. Here, if Zutrau fully
had paid Bayard‟s bills, it presumably would have no basis for seeking a charging
lien at all, let alone one for the additional roughly $100,000 it seeks for the experts.
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
December 8, 2014
Page 10
There is no evidence in the record that Bayard is liable to the experts for their
fees. I see no basis, therefore, for including those fees in the charging lien.15
Conclusion
For the foregoing reasons, I grant Bayard‟s motion for entry of a charging lien,
but deny its request to include certain expert fees in the amount of that lien. Upon the
entry of any judgment in this action, Bayard will have a charging lien in the amount
of $200,000 against that judgment.16 Bayard shall submit, within ten days of this
Letter Opinion, appropriate documentation showing the fees and out-of-pocket
expenses it incurred in this matter that remain unpaid. At such time as all unpaid fees
and expenses of Bayard have been paid, the charging lien shall be extinguished.
15
Cf. Bero-Wachs v. Law Office of Logar & Pulver, 157 P.3d 704, 708-09 (Nev.
2007) (interpreting the Nevada charging lien statute and finding that attorneys‟
lien did not apply to costs of forensic accountant when the law firm was not a
principal to the contract with the accountant and, thus, bore no liability for the
expert‟s fees).
16
Bayard originally requested a charging lien in the amount of $300,000.
Roughly $100,000 of that amount related to the experts‟ fees. Accordingly, it
is unlikely that Bayard‟s unpaid fees and expenses will exceed $200,000. Arg.
Tr. 11 (Stephen Brauerman: “I‟d say all-in we are just under $200,000.”).
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
December 8, 2014
Page 11
IT IS SO ORDERED.
Sincerely,
/s/ Donald F. Parsons, Jr.
Donald F. Parsons, Jr.
Vice Chancellor
DFP/ptp | 01-03-2023 | 12-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2263340/ | 893 A.2d 875 (2005)
In re Joseph ZUPSIC, Former Magisterial District Judge In and For Magisterial District 36-3-03 Beaver County.
No. 1 JD 05.
Court of Judicial Discipline of Pennsylvania.
December 29, 2005.
*877 Before: SPRAGUE, P.J., HALESEY, CAPOFERRI, PANEPINTO, O'TOOLE, SANDLER and LAMB, JJ.
OPINION BY Judge LAMB.
I. INTRODUCTION
The Judicial Conduct Board (Board) filed a Complaint with this Court on February 9, 2005 against Magisterial District Judge Joseph Zupsic (Respondent) in which the Board charges the Respondent with various violations of the Pennsylvania Constitution and of the Rules Governing Standards of Conduct of Magisterial District Judges. These charges arise out of five separate incidents which are set out separately in five parts in the Complaint. These five incidents are identified as:
Part 1. Commonwealth v. Anthony Martorella, set out in paragraphs 3-6 of the Complaint. The Board charges that Respondent's conduct described in Part 1 is such that:
(a) brings the judicial office into disrepute, a violation of Article V. § 18(d)(1) of the Pennsylvania Constitution, and
(b) prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.
Part 2. Commonwealth v. David Presto, set out in paragraphs 7-8.3.5 of the Complaint. The Board charges that Respondent's conduct described in Part 2 is such that:
(a) brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution, and
(b) constitutes a violation of Rule 8A. of the Rules Governing Standards of Conduct of Magisterial District Judges.
Part 3. Commonwealth v. William G. Cornell, set out in paragraphs 9-12 of the Complaint. The Board charges that Respondent's conduct described in Part 3 is such that:
(a) brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution,
(b) prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution, and
(c) constitutes a violation of Rule 8A. of the Rules Governing Standards of Conduct of Magisterial District Judges.
Part 4. Commonwealth v. Kelly Jo Schupp, set out in paragraphs 13-18 of the Complaint. The Board charges that Respondent's conduct described in Part 4 is such that:
(a) brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution,
(b) prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution, and
(c) constitutes a violation of Rule 8A. of the Rules Governing Standards of Conduct of Magisterial District Judges.
Part 5. Commonwealth v. Anson M. Murgenovich, set out in paragraphs 19-23 of the Complaint. The Board charges that the conduct described in Part 5 is such that:
*878 (a) brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution,
(b) prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution, and
(c) constitutes a violation of Rule 8A. of the Rules Governing Standards of Conduct of Magisterial District Judges.
The Board and the Respondent have submitted stipulations as to some of the facts in the case pursuant to C.J.D.R.P. No. 502(D)(2). The Court accepted the pertinent stipulations and proceeded to trial. The Court now makes its Findings of Fact; those which have been stipulated are so designated.
II. FINDINGS OF FACT
1. The Judicial Conduct Board (hereinafter referred to as "Board") is empowered by Article V, § 18 of the Constitution of the Commonwealth of Pennsylvania to file formal charges alleging ethical misconduct on the part of judges and to present the case in support of the formal charges before the Court of Judicial Discipline. (Stipulation No. 1).
2. Pursuant to Article V, § 18 of the Constitution of the Commonwealth of Pennsylvania and Judicial Conduct Board Rule of Procedure 31(A)(3), promulgated by the Pennsylvania Supreme Court on March 20, 1995 (amended 1996), the Board is granted authority to determine whether there is probable cause to file formal charges, and, when it concludes that probable cause exists, to file formal charges, against a justice, judge, or justice of the peace, for proscribed conduct and to present the case in support of such charges before the Court of Judicial Discipline. (Stipulation No. 2).
3. Since on or about November 1998, the Respondent has served continuously to March 5, 2005, when he resigned as Magisterial District Judge for Magisterial District 36-3-03 in Beaver County, the Thirty-Sixth Judicial District, Pennsylvania, encompassing the Townships of Center, Greene, Potter and Raccoon, and the Boroughs of Georgetown, Hookstown, Monaca and Shippingport, with an office located at 226 Front Center Grange Road, Aliquippa, Pennsylvania 15001. (Stipulation No. 3).
PART 1. Commonwealth v. Anthony Martorella
4. In April of 1999 Jeffrey Dobo reported to the Pennsylvania State Police that he had accumulated a debt with Anthony Martorella and was unable to pay it. As a consequence, Dobo reported, Martorella was threatening that he was going to kill Dobo or injure his family (N.T. 162).
5. The State Police instituted an investigation and, on April 28, 1999, had officers in place at Dobo's home and had placed several phone taps on Dobo's phones. Trooper Donald Neill was the officer in charge at Dobo's home. On that date, Martorella called Dobo at his home. Dobo told Martorella he was not going to pay him back the money. Martorella became enraged and told Dobo he was coming to his house to kill him. Shortly thereafter, Martorella came speeding up the road to Dobo's house, jumped out of the car, ran to the front door, forced his way into the residence, all the time yelling that he was going to kill Dobo, at which point he was arrested by the State Police officers who were present at the Dobo residence. (N.T. 162-64).
6. Trooper Neill filed a criminal complaint with District Justice Swihart on April 28, 1999 charging Burglary, Terroristic Threats, Theft by Extortion and *879 Harassment by Communication at Docket # CR-95-99. (Stipulation No. 4).
7. District Justice Swihart set bail at $250,000 and scheduled a preliminary hearing for June 1, 1999. (N.T. 164-65).
8. Sometime shortly before the preliminary hearing, Trooper Neill received a telephone call from Respondent who asked him to stop by his office in the next day or two and talk to him. Trooper Neill did go to Respondent's office and, when he did, Respondent closed the doors and asked about the Martorella case. Respondent told Neill that Martorella was either a relative or friend of Respondent's previous employer and that Martorella was "really not a bad guy" and asked "if there was anything [Trooper Neill] could do about the case." (N.T. 165-67).
9. Trooper Neill told Respondent that the case involved a very serious incident and that there was nothing that could be done and that the State Police would be obligated to pursue the charges as filed. Despite Neill's response, Respondent persisted to insist that Martorella wasn't a bad guy and that he (the Respondent) would appreciate it if there was anything Neill could do for Martorella. (N.T. 167).
10. Immediately after this meeting. Trooper Neill returned to the State Police Barracks and reported the incident to David Liberum, supervisor of the Pennsylvania State Police White Collar Crime Unit. He reported it to no one else, including the Judicial Conduct Board. (N.T. 172, 176-77).
11. The Judicial Conduct Board first became aware of Respondent's conduct in the Martorella case in August 2003, when, during the course of its investigation of Respondent's conduct in the Kelly Jo Schupp case, the Board's Investigator. Douglas Miller, was advised by a confidential source that he should talk to Trooper Neill about Respondent. A few days later Miller interviewed Neill who then reported the facts of the Martorella case set out in Findings of Fact Nos. 4-9. (N.T. 180-82).
12. Some time after Martorella's preliminary hearing at which he was held for court, Trooper Neill received a call at his home from the Respondent. On this occasion, Respondent importuned Trooper Neill to consider ARD for Martorella. Trooper Neill informed Respondent that the Martorella case "was not an ARD appropriate case." Martorella eventually pled guilty to making terroristic threats. (N.T. 167-68).
PART 2. Commonwealth v. David Presto
13. On or about March 21, 2001, David Presto was charged under Docket # CR-59-01 with assaulting an inmate at the Beaver County Jail while Presto was employed there as a guard. The complaint was filed before Magisterial District Judge Janet M. Swihart, District Court 36-3-04. (Stipulation No. 5).
14. Since at least as early as 1999, until August 2004, David Presto's father, James Presto, was a frequent visitor at Respondent's office, engaging in private meetings with Respondent in the courtroom or in his office "most of the time behind closed doors." (N.T. 122-31, 133-34, 136). During this period of time Respondent had lunch with James Presto at a local restaurant on a number of occasions. (N.T. 134, 137). During this period of time James Presto had no business having to do with Respondent's district court (N.T. 125), but did have business with Respondent unrelated to Respondent's district court. (N.T. 128-29; 141-53).
15. Sometime in early 2000 a friend of Respondent's, named John Sabino, told Respondent he was in serious financial trouble and asked Respondent if he would raise $50,000 which he would repay in two *880 or three weeks. Respondent did raise the $50,000 in cash which included $12,000 from James Presto and $10,000 from himself. (N.T. 145-46; Zupsic deposition, p. 53). Respondent then delivered the cash to Mr. Sabino in the parking lot of D'Angela's Doughnut Shop in Rochester, Pennsylvania. (N.T. 146, Zupsic deposition, p. 54). After two or three weeks passed without repayment, Respondent spoke with Sabino who told him "he couldn't get the money." Shortly thereafter, Sabino gave Respondent checks, including one for Presto, ostensibly in repayment of the cash delivered to Sabino by Respondent. The checks, including the check to Presto, "bounced" whereupon Respondent called Sabino and advised him "Mr. Presto's probably gonna pursue this legally to get his money back." (Zupsic deposition, p. 56).
16. Presto then filed bad check charges with the Beaver County District Attorney and investigation of the case was assigned to Detective Timothy Staub. In the course of his investigation Detective Staub interviewed Respondent on February 14, 2000. (N.T. 141, 145-49).
17. At Sabino's preliminary hearing the charges against him were dismissed upon Presto's advice that he had been "made whole." (N.T. 146-47).
18. On April 24, 2001, Respondent was assigned to conduct preliminary hearings in Beaver County Central Court and the charges against David Presto, James Presto's son, were listed in Central Court that day and came on for hearing before Respondent. (N.T. 113, 115).
19. At the preliminary hearing for David Presto, the Commonwealth was represented by Assistant District Attorney William Hare, Esquire and Presto by John Havey, Esquire. (N.T. 112-13).
20. At no time, either before or during the preliminary hearing for David Presto, did Respondent advise counsel of his personal and business relationship with David Presto's father nor otherwise bring up the subject of his possible recusal. (N.T. 120).
21. At the conclusion of the testimony, Respondent dismissed the case. (N.T. 115).
PART 3. Commonwealth v. William G. Cornell
22. On or about June 30, 2001, Officer Joseph Hadden of the Shippingport Police Department initiated a traffic stop of William G. Cornell for possible drunk driving. (Stipulation No. 10).
23. Cornell was taken to the Shippingport Police Station where a breathalyzer test was administered by Chief of Police Michael Pantaleo. The breathalyzer test determined Cornell's blood alcohol to be 0.10 sufficient to support a charge of driving under the influence of alcohol, (N.T. 90-91) nevertheless, Cornell was cited for Public Drunkenness by Citation No. P1282472-2 filed in Respondent's office on July 2, 2001. (Stipulation No. 10).
24. The decision to cite Cornell for the lesser offense of public drunkenness was made by Chief Pantaleo. (N.T. 91).
25. Sometime after the citation was filed, Chief Pantaleo was in Respondent's office on other business when Respondent called the Chief back into the kitchen and told him that the Cornell hearing was coming up and that Cornell was a union guy and Respondent wanted to help him out. The Chief responded by pointing out that Cornell had already gotten a break. There was no further conversation at that time. (N.T. 92).
26. On the morning of September 4, 2001 at the request of the Pennsylvania State Police, Chief Pantaleo wore a body wire and engaged Respondent in conversation outside the back door of Respondent's office in an attempt to entice Respondent *881 into saying something incriminating. (N.T. 93).
27. A transcript of relevant portions of the audiotape of that conversation, stipulated to be accurate, is as follows:
CHIEF PANTALEO: I wanted to talk to Joe.
FEMALE: Oh. I'm thinkin', I thought I seen you out here. And then you never came in.
CHIEF PANTALEO: Yeah.
A WOMAN: Hey, Bufe.
A VOICE: (Unintelligible)
CHIEF PANTALEO: How you doin', Joe?
MR. ZUPSIC: Hey, we got that guy today.
CHIEF PANTALEO: Pardon me?
MR. ZUPSIC: I said we got that (unintelligible).
CHIEF PANTALEO: Yeah, that's what I wanted you know, it's two different guys down the plant come in. One guy I don't even know who the hell he was says, Hey, it's all taken care of, you know?
And he says if I wanted somethin', you'd hose me.
MR. ZUPSIC: Other words, they're pissed off about it.
CHIEF PANTALEO: Yeah.
MR. ZUPSIC: I I tell you, man, I already committed on it. I mean, you know.
CHIEF PANTALEO: Um-hmm.
MR. ZUPSIC: I you know.
CHIEF PANTALEO: Okay. Well, like I said, I you know, it's
MR. ZUPSIC: Yeah.
* * * *
MR. ZUPSIC So he don't want to do that.
CHIEF PANTALEO: I guess not. I don't know.
So Dale says, well, just don't worry about it, Mike.
I says, okay.
But, anyhow, that that Cornell guy is what I just you know, I don't care, you know.
MR. ZUPSIC: Like I said, I mean,
CHIEF PANTALEO: Yeah.
MR. ZUPSIC: I you know, it's
CHIEF PANTALEO: Yeah.
MR. ZUPSIC: all kind of fuckin' heat on that one, so. . .
CHIEF PANTALEO: Okay. Okay. Okay.
MR. ZUPSIC: All right, Mike. Hey, once in a while we gotta do this, man.
CHIEF PANTALEO: Okay.
Mr. ZUPSIC: You know?
CHIEF PANTALEO: All right.
MR. ZUPSIC: You know?
CHIEF PANTALEO: Okay, Judge. No problem.
MR. ZUPSIC: Is it it's not you anyways. It's your guy, right?
CHIEF PANTALEO: No. Yeah.
MR. ZUPSIC: It's your guy comin'?
CHIEF PANTALEO: Yeah, I guess. I haven't talked to him.
MR. ZUPSIC: Yeah.
CHIEF PANTALEO: He only works a couple days a week so. . .
MR. ZUPSIC: Yeah. Okay, man. You hangin' around or are you takin' off?
CHIEF PANTALEO: No, I'm leavin'. Okay.
MR. ZUPSIC: See you.
CHIEF PANTALEO: Uh-huh.
Well, he said he was committed to it.
(Unintelligible.)
Turn the tape or the camera off.
*882 Okay. Okay. I just hope everything works out.
Well, it's 9:33. I'm leavin' the magistrate's office. Had it on tape. So I just he said he's committed to it.
28. Joseph A. Hadden, III, ex-officer of the Shippingport (Beaver County) Police Department was the prosecuting officer in Commonwealth v. William G. Cornell, NT-598-01. (Stipulation No. 11).
29. The case against Cornell at NT-598-01 was dismissed on September 4, 2001, due to the failure of Officer Hadden to appear at the scheduled hearing. (Stipulation No. 12).
PART 4. Commonwealth v. Kelly Jo Schupp
30. On or about November 14, 2001, Kelly Jo Schupp was stopped at Boscov's Department Store at the Beaver Valley Mall on the suspicion of shoplifting. She was subsequently charged by summons with the offense of retail theft. (Stipulation No. 13).
31. On February 19, 2002, Patricia Beahan, head of security for Boscov's at the Beaver Valley Mall, filed a private criminal complaint against Schupp in the Respondent's office under Docket No. CR-69-02. Schupp appeared before the Respondent on March 21, 2002, for preliminary arraignment. (Stipulation No. 14).
32. On that date when Schupp was called into Respondent's courtroom for her arraignment, Respondent asked her to tell him what happened, which she did. On that occasion the following also took place between Respondent and Schupp:
he told her she didn't look like a person who would be guilty of shoplifting.
he told her that Patricia Beahan, the Boscov's employee who filed the charges in Respondent's court did so frequently.
she told him that she was in the middle of divorce proceedings and that she was concerned that the criminal charge might affect her right to the custody of her child.
he explained to her that the charges could be reduced to a lesser charge or that she could be placed in ARD for retail theft.
he gave her his business card and his cell phone number and told her he wanted to help her and he would be in touch with her. (N.T. 47-50).
33. Between March 28, 2002 and June 10, 2002, Schupp made twelve calls on her cell phone to Respondent's cell phone (N.T. 54-56, Joint Exhibit No. 4), and he called her a number of times and recommended that she engage a particular lawyer to represent her in the case. (N.T. 51). During 2002 Respondent's cell phone number was XXX-XXX-XXXX. (Stipulation No. 20).
34. On or about June 21, 2002, the Respondent had a conversation with Patricia Beahan at Boscov's Department Store at the Beaver Valley Mall. (Stipulation No. 15).
35. On that occasion Patricia Beahan was in her office at the Boscov's store when the store operator who was located right outside Beahan's office, announced that there was a judge here to see her. Ms. Beahan went to the operator's booth where Respondent was, and invited him to come into her office, whereupon the following transpired between Respondent and Beahan:
he told her he was there regarding the case of Kelly Jo Schupp, that she, Schupp, was going through some hard times and inquired if there was a way to change the charge from retail theft to disorderly conduct.
*883 she told him that she did not have authority to do that but offered to contact her superiors in the corporate offices who might have that authority.
he said it would be alright if she did that and it would be okay if they didn't want to do it.
she pointed out that ARD would certainly be an option but he said that would still have a negative impact on her child custody case. (N.T. 21-24).
Respondent told Beahan that his visit was "unofficial." (N.T. 23, 28-29).
36. Ms. Beahan did contact corporate headquarters and was directed to report the encounter to the district attorney's office. (N.T. 24).
37. Ms. Beahan did report her encounter with Respondent of June 21, 2002 to Beaver County Assistant District Attorney William Hare. (N.T. 24-25).
38. In addition to the telephone conversations she had with Respondent, Ms. Schupp met Respondent for lunch at Humphrey's Restaurant near the Beaver County Mall. This meeting took place before she went to court for the preliminary hearing on July 12, 2002. On that occasion Respondent told Schupp that he knew Patricia Beahan personally and that he was going to talk to her because "he thought... that I deserved an opportunity to get a lesser charge than the ARD, I believe, and that was the conversation in a nutshell." (N.T. 52-53).
39. Kelly Jo Schupp's preliminary hearing was continued at least once (N.T. 30, 40) and was eventually scheduled for July 12, 2002 in the Beaver County Courthouse before Respondent. (N.T. 33). On that date Ms. Beahan, Assistant District Attorney Hare and Kelly Jo Schupp and her attorney were present in Respondent's court for the preliminary hearing. (N.T. 29, 39).
40. On that day, Schupp and her counsel waived the preliminary hearing pursuant to an agreement between the assistant district attorney, Schupp and her counsel, with the consent of Patricia Beahan as Boscov's representative. A plea agreement was entered into wherein Schupp was to obtain ARD before the Court of Common Pleas of Beaver County at a later date. (Stipulation No. 16).
41. Prior to the arraignment by the Respondent of Kelly Jo Schupp, she had never met, spoke with or knew of the Respondent. (Stipulation No. 19).
PART 5. Commonwealth v. Anson M. Murgenovich
42. On May 23, 2003, Patrolman Robert Applegarth filed a criminal complaint CR-244-02 against Anson M. Murgenovich. The charge was driving under the influence of alcohol, 75 Pa.C.S.A. § 3731(a)(4)(ii). (Stipulation No. 21, Joint Exhibit No. 5).
43. Sometime shortly after Applegarth filed the complaint against Mr. Murgenovich, Officer Applegarth was in Respondent's court on other business. On that occasion Respondent asked to speak to Officer Applegarth and the two entered Respondent's chambers. No one else was present and Respondent said to Officer Applegarth: "I see you filed a charge against Anson. He's a friend of ours. Do you think there's something we could do to help him out?" Respondent then told Officer Applegarth that he was going to be the district justice on the bench on the day Mr. Murgenovich's preliminary hearing was scheduled. (N.T. 65-66).
44. During the conversation in Respondent's chambers, Respondent did not ask Officer Applegarth to drop the charges; *884 he just made a general inquiry of Applegarth as to whether anything could be done. (N.T. 70).
45. The next day Officer Applegarth reported this encounter to his Chief of Police. (N.T. 66).
46. The preliminary hearing for that case was scheduled on July 8, 2002 at 11:00 a.m. in Beaver County Central Court. (Stipulation No. 22).
47. Patrolman Applegarth did not attend the scheduled preliminary hearing because of scheduled firearm training. (Stipulation No. 23).
48. Patrolman Applegarth advised the Beaver County District Attorney of his unavailability for the preliminary hearing on the morning of that hearing. (Stipulation No. 24).
49. Patrolman Applegarth's failure to appear at the hearing was solely because of scheduled firearm training. (Stipulation No. 25).
50. On the day of the preliminary hearing, the Commonwealth was represented by Assistant District Attorney William Hare, who, upon learning of the unavailability of Officer Applegarth, made a motion for a continuance. Respondent denied the motion and dismissed the case at the request of Mr. Murgenovich. (N.T. 85).
III. DISCUSSION
The amendment to the Constitution of Pennsylvania of 1993 established the Judicial Conduct Board and this Court, and provided certain specific instructions for the conduct of proceedings before this Court:
All hearings conducted by the court shall be public proceedings conducted pursuant to the rules adopted by the court and in accordance with the principles of due process and the law of evidence. Parties appearing before the court shall have a right to discovery pursuant to the rules adopted by the court and shall have the right to subpoena witnesses and to compel the production of documents, books, accounts and other records as relevant. The subject of the charges shall be presumed innocent in any proceeding before the court, and the board shall have the burden of proving the charges by clear and convincing evidence.
Pa. Const. Article V, § 18(b)(5).
The Pennsylvania Supreme Court has defined clear and convincing evidence as follows:
The witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty, and convincing as to enable the [trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.... It is not necessary that the evidence be uncontradicted ... provided it "carries a clear conviction to the mind" or "carries a clear conviction of its truth."
In re Adoption of J.J., 511 Pa. 590, 515 A.2d 883, 886 (1986). See, also, La Rocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963), and In re Cicchetti, 697 A.2d 297, 306 (Pa.Ct.Jud.Disc.1997).
PART 1. Commonwealth v. Anthony Martorella
The Board has charged the Respondent's conduct set out in Findings of Fact Nos. 4-12 is such that:
(a) brings the judicial office into disrepute; and
(b) prejudices the proper administration of justice.
*885 The Respondent, however, has filed a motion to dismiss the charges arising out of Respondent's conduct relating to the Martorella case. Respondent bases his motion on Rule 15 of the Judicial Conduct Board's Rules of Procedure. That Rule provides:
RULE 15. TIME LIMITATIONS
Except where the Board determines otherwise for good cause, the Board shall not consider complaints arising from acts or omissions occurring more than four years prior to the date of the complaint, provided, however, that when the last episode of an alleged pattern of recurring judicial misconduct arises within the four-year period, the Board may consider all prior acts or omissions related to such an alleged pattern of conduct.
Examination of Respondent's motion reveals that he misconstrues Rule 15. Respondent points out that the acts of Respondent which provide the basis for the charges in the Martorella case occurred before February 14, 2000 (which is true) and that the Board filed its Complaint with this Court on February 9, 2005 more than four years later. However, Rule 15 does not address the lapse of time between the occurrence of acts or omissions of a judicial officer and the filing of the Complaint in this Court, but rather, the time which intervenes between the occurrence of the acts or omissions and the receipt of the complaint by the Judicial Conduct Board. This is clear. The word "complaint" appears frequently in the Judicial Conduct Board's Rules of Procedure, and review of these Rules leaves no question that in every instance the reference is to a "complaint" filed by a "complainant" with the Board. See, e.g. Rules 10, 11, 16, 17, 18, 25, 26, 27, 28, 30, 31. By contrast, whenever the Rules refer to a Complaint filed by the Board in this Court the term "Board Complaint" is used, see, e.g. Rules 13, 34. Moreover, Rule 1 provides definitions of the two terms as follows:
Board Complaint is the document setting forth the formal charges and filed by the Board to initiate proceedings in the Court of Judicial Discipline.
Complaint means a document setting forth information alleging conduct within the jurisdiction of the Judicial Conduct Board pursuant to Pa. Const. Art. V, § 18.
That having been said, the fact is that no written "complaint" having to do with the Martorella case was ever filed with the Board. The facts are that Board investigator, Douglas Miller, while investigating Respondent's conduct in the Kelly Jo Schupp case in August 2003, was advised to speak to Trooper Neill about the Respondent. Miller then spoke to Neill who, in August, 2003, told him about his encounters with the Respondent which took place before Martorella's preliminary hearing in 1999 and before Martorella's guilty plea in February 2000. Thus, no "complaint" was filed with the Board, rather, after Miller's interview of Neill, the Board initiated its investigation. This the Board is constitutionally authorized to do. Pa. Const. Art. V, § 18(a)(7) provides:
(7) The board shall receive and investigate complaints regarding judicial conduct filed by individuals or initiated by the board ....
In this case the Board's investigation was initiated in August 2003. In order to determine whether this was more or less than the four-year limitation of Rule 15, we must determine whether the acts giving rise to the charges related to the Martorella case took place more or less than four years earlier.
Respondent had two conversations with Trooper Neill in which he tried to get Neill to drop or lower the charges against Martorella. *886 The first took place at or about the time of Martorella's preliminary hearing. (N.T. 166). The preliminary hearing was held on June 1, 1999. (N.T. 164-65). This was two and a half to three months more than four years before August 2003 when Neill provided Miller with the report of Respondent's intervention in the Martorella case. The second intervention took place on the telephone "at one point in time after the preliminary hearing [June 1, 1999] and prior to the pleading [the entry of the guilty plea on February 14, 2000]." (N.T. 168). There is no other evidence fixing with any more precision the date of the second conversation. This is important because if it occurred after August 1999, Rule 15 could not operate to bar the Board from considering that conversation inasmuch as it would have occurred less than four years before the Board obtained information from Trooper Neill alleging conduct within its jurisdiction and initiated its investigation of the Martorella case. It is important, also, because, if the second conversation took place after August 1999, then it would bring into play the exception to the four-year limitation of Rule 15 which provides:
[W]hen the last episode of an alleged pattern of recurring judicial misconduct arises within the four-year period, the Board may consider all prior acts or omissions related to such an alleged pattern of conduct.
Thus, if the second conversation took place after August 1999, the Board could consider the first conversation, for Respondent's second encounter with Trooper Neill was certainly "the last episode of ... a pattern of recurring judicial misconduct" which would enable the Board "to consider all prior acts or omissions related to such ... [a] pattern of conduct."
However, while we might be inclined to judge that the second encounter occurred closer to the entry of the plea, in February 2000 (because Respondent was discussing ARD with the Trooper), than it did to the time of the preliminary hearing the previous June, this has not been established. It is the Board's burden to do this and to do so by "clear and convincing evidence."[1] This the Board has not done. Thus, the Court cannot make a finding that the second encounter took place within the four-year limitation of Rule 15 or that the case can be brought within the "pattern of conduct" exception contained in the Rule.
It remains for us, nevertheless, to determine whether the Board was justified in determining that "good cause" existed in this case such that permitted it to consider Respondent's conduct in the Martorella case even though it occurred two or three months more than four years before the information was received from Trooper Neill and the investigation was initiated. Rule 15 begins with the following clause:
Except where the Board determines otherwise for good cause, the Board shall not consider complaints ....
Obviously, in this case, the Board did determine that good cause existed for it to consider the Martorella episodes because it did consider them. It now asks this Court to affirm that determination.[2]
*887 We do affirm that determination for the reasons which follow.
1. In this case, the time by which the four-year limitation was exceeded is quite short two and a half to three months. This is in sharp contrast to the only case where this Court has held complaints to be barred by Rule 15: In re Cicchetti, supra, at 306-10, where the acts complained of had occurred twenty and thirteen years before any complaint was made.
2. There is another contrast with the Cicchetti case. In Cicchetti there were individual victims who were complaining of sexual harassment who had made no complaint for twenty years in one case, and thirteen years in another. There we pointed out that in a case involving similar conduct: indecent assault and rape, the Pennsylvania Supreme Court was much less willing to consider the merits of a charge that was not filed promptly, holding that "the lack of a prompt complaint by a victim of a crime, although not dispositive of the merits of the case, may justifiably produce a doubt as to whether the offense indeed occurred, or whether it was a recent fabrication by the complaining witness." Commonwealth v. Lane, 521 Pa. 390, 555 A.2d 1246, 1250 (1989). That was true in Cicchetti, i.e. the long delay and the nature of the conduct produced doubt as to whether the conduct had, in fact, occurred. There is no doubt here, in this Court's judgment, that everything that Neill said happened in the Martorella case happened.
3. There is no worry in this case that Neill's allegations were "a recent fabrication" for, in this case Neill made an immediate complaint. He was not making something up after four years passed. Neill testified that immediately after his first conversation with Respondent about Martorella, he went back to the state police barracks and reported Respondent's conduct to his superior officer, David Liberum, the supervisor of the White Collar Crime Unit. (N.T. 172, 176-77). Neill testified he did not report this to anyone else, including the Judicial Conduct Board; but it would not be unreasonable to conclude that Neill considered his responsibility to report the incident at an end upon making his report to Trooper Liberum.
4. Probably the most important factor justifying the Board's determination that it should consider the conduct of Respondent in regard to the Martorella case is the conduct itself. To say it was egregious would be to understate; to say it is the embodiment of the kind of judicial conduct which the Judicial Conduct Board was created to eradicate would be accurate. To hold that the Judicial Conduct Board was prohibited, by its own rule,[3] from considering the information furnished by Trooper Neill would pervert the labors of the authors of the constitutional amendment which brought the Judicial Conduct Board into being.
We hold that the Board's determination that there was good cause to pursue its *888 investigation of Respondent based on the information furnished by Neill relating to Respondent's intervention in the case of Commonwealth v. Martorella, and to include charges relating thereto in a Complaint filed with this Court, was fully justified.
We turn now to consider the charges against Respondent arising out of his conduct in the Martorella case.
(a) Conduct which brings the judicial office into disrepute.
In In re Smith, 687 A.2d 1229 (Pa. Ct.Jud.Disc.1996), this Court noted that the conduct of a judge which results in a decline in the public esteem for that judge, may not support the conclusion that the conduct has brought the judiciary as a whole into disrepute, absent a persuasive showing by the Board that the conduct is so extreme as to have brought the judicial office itself into disrepute. In In re Cicchetti, 697 A.2d 297, 310 (Pa.Ct.Jud.Disc. 1997), this Court reiterated that notion as it concluded that a judge's conduct in persisting in making sexual advances towards a subordinate employee who repeatedly rejected the advances constituted conduct of such an extreme nature that the judicial officer had brought the judicial office itself into disrepute.
In Cicchetti, 697 A.2d at 312, this Court noted that:
The determination of whether particular conduct has brought the judicial office into disrepute, of necessity, is a determination which must be made on a case by case basis as the particular conduct in each case is scrutinized and weighed.
In this case, it has been established that Respondent called Trooper Donald Neill of the Pennsylvania State Police and asked him to stop by his office. A day or two later Neill did, and Respondent took him into his office and inquired about Anthony Martorella's case. Neill had charged Martorella with Burglary, Terroristic Threats, Theft by Extortion and Harassment by Communication and Martorella's preliminary hearing was coming up before another judge. Respondent asked Neill "if there was anything he [Neill] could do about the case" inasmuch as Martorella was "really not a bad guy." So did Respondent describe Martorella while intervening on his behalf with Neill who had witnessed Martorella threaten to kill an individual named Dobo for failing to repay a loan and who had sped to Dobo's home, and broke into the residence, all the time yelling he was going to kill Dobo. (See Findings of Fact Nos. 4-9). It is also established that after Martorella's preliminary hearing, Respondent telephoned Neill at his home urging him to agree to ARD for Martorella (Finding of Fact No. 12).
Respondent admits that he spoke to Neill about ARD for Martorella as if this was a perfectly normal thing for him to do. At his deposition Respondent testified:
A. I got a call from a friend of mine I used to work with at IBM and he said he had known somebody I think he said he knew a Mr. Martorella and he thought he was a decent guy I never heard of Mr. Martorella before and was it possible to get would he be eligible for ARD?
Q. Wait a minute. Who asked you that question?
A. Some some individual name Dennis Kearny (phonetic), okay, had called me and said, do you know you know, could you ask do you know the trooper?
And I asked him who it was. And he said Trooper Neill. I know Trooper Neill.
Q. Did you ask Kearny any questions about Anthony Martorella?
*889 A. No. No.
Q. Have you even seen Anthony Martorella?
A. No. No.
Q. So you went to I mean, you talked to Trooper Neill about Martorella's eligibility for ARD just because Dennis Kearny asked you to do that?
A. Yes.
(Zupsic deposition, pp. 60-61, 63).
In Smith, we said that:
"Disrepute" necessarily incorporates some standard with regard to the reasonable expectations of the public of a judicial officer's conduct.
Smith, supra, at 1239.
Certainly the reasonable expectations of the public[4] would include the expectation that a judicial officer will not make use of his high and trusted office in an overt attempt to influence a state policeman who regularly appears before him, to reduce the charges or to agree to ARD, particularly in a case where the behavior of the defendant giving rise to the charges was so violent and outrageous as Martorella's was. As we said in In re Trkula, 699 A.2d 3, 8 (Pa.Ct.Jud.Disc.1997):
It would be difficult to identify conduct which would more assuredly dash public confidence in that system and in the judicial office itself.
We conclude that the conduct of Respondent was so extreme as to bring the judicial office into disrepute.
(b) Conduct which prejudices the proper administration of justice.
This Court has held that:
Conduct which prejudices the proper administration of justice . . . is conduct which obstructs or interferes with those activities which enable the systematic operation of the courts. The term "systematic operation" encompasses not only the procedures adopted by courts which aid in functioning, but also the standards of conduct expected of judicial officers in the performance of the work of the courts. Hence, when a judicial officer's conduct departs from the standard expected of judges and has the effect of obstructing or interfering with the systematic operation or normal functions of the court, his conduct will have affected the proper administration of the courts.
Smith, supra, at 1237 (emphasis the Court's).
There is certainly no question that when Respondent called Trooper Neill into his office to tell him what a nice guy Mr. Martorella was thereby making it clear to the trooper that he, the judge before whom the trooper regularly appeared, would be pleased if the trooper would reduce the charges and even consider ARD in this egregious case, he was "interfering with the systematic operation or normal functions of the court" and as we said in Smith "[such] conduct will have affected the proper administration of the courts." Id.
Again we refer to Smith where we said:
A judicial officer who engages in conduct which prejudices the proper administration of justice would have the added element of a mental state in which he or she not only knew that the conduct at issue consisted of some neglect or impropriety, but also acted with the knowledge and intent that the conduct would have a deleterious effect upon the administration of justice, for example, by affecting a specific outcome.
Id. at 1238 (emphasis added); see, also, In re Trkula, 699 A.2d at 8.
*890 It is not open to question that when Respondent called Trooper Neill into his office before Martorella's preliminary hearing, and when he called him at home, Respondent's only purpose was to "[affect] a specific outcome" and that, on both occasions, he "acted with the knowledge and intent that the conduct would have a deleterious effect upon the administration of justice." There is no doubt that Respondent intended that his "talking to" Neill would have a deleterious affect on the administration of justice and intended that it would prejudice the right of the people of the Commonwealth, and of Mr. Dobo, to have the case tried on its merits and without interference.
We hold that Respondent's approaches to Neill and his conversations with him was conduct which prejudices the proper administration of justice.
PART 2. Commonwealth v. David Presto
The Board has charged that Respondent's conduct set out in Findings of Fact Nos. 13-21 is such that:
(a) brings the judicial office into disrepute, and
(b) constitutes a violation of Rule 8A of the Rules Governing Standards of Conduct of Magisterial District Judges.
We will discuss (b) first.
Rule 8A. provides:
RULE 8. DISQUALIFICATION.
A. A magisterial district judge shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:
(1) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings;
(2) he served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the magisterial district judge or such lawyer has been a material witness concerning it;
(3) he knows that he, individually or as a fiduciary, or his spouse or a minor child residing in his house-hold has a financial interest in the subject matter in controversy or in a party to the proceeding or any other interest that could be substantially affected by the outcome of the proceeding;
(4) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(a) is a party to the proceeding, or an officer, director or trustee of a party;
(b) is acting as a lawyer in the proceeding;
(c) is known by the magisterial district judge to have an interest that could be substantially affected by the outcome of the proceeding;
(d) is to the knowledge of the magisterial district judge likely to be a material witness in the proceeding.
We must determine whether, given his relationship with David Presto's father, James Presto, Respondent's failure to disqualify himself in the case of Commonwealth v. David Presto was a violation of Rule 8A, because Respondent's "impartiality might reasonably be questioned."
The procedure to be followed and the standard to be applied in dealing with recusal motions in the trial court and on appeal were crystallized and authoritatively set down by our Supreme Court in Reilly by Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985).
*891 As for the procedure in the trial courts the Supreme Court said that the trial judge "may determine the question in the first instance, and ordinarily his disposition of it will not be disturbed unless there is an abuse of discretion." Reilly, supra at 221, 489 A.2d at 1299. Since rulings on recusal motions are interlocutory, the ruling will not be examined until the case is tried and an appeal is taken.[5] The importance of Reilly for this Court in seeking guidance in the enforcement of rules of conduct, is its holding as to what shall happen on appeal and what shall not. That holding is:
If the cause is appealed, the record is before the appellate court which can determine whether a fair and impartial trial were had. If so, the alleged disqualifying factors of the trial judge become moot. (emphasis the Court's).
Reilly, 507 Pa. at 222, 489 A.2d at 1300.
Whatever may be the impact of this holding on litigants and on litigation and it is certainly substantial that is not our focus here. The importance of this holding on the question here is that appellate courts will not be reviewing the propriety of trial judges' denials of recusal motions. As an example, see, Southeast National Bank of Pa. v. Goldberg, 813 A.2d 916 (Pa.Super. 2002); Patrick v. Goldberg, 813 A.2d 915 (Pa.Super. 2002). In its disposition of the appeals in those cases, the Superior Court stated:
[B]ecause we find, based on our review of the record, that the trial court was fully able to dispose of the matter fairly and without prejudice, the alleged disqualifying factor, namely that the trial judge should have recused on the basis of his law clerk's relationship with Cuppy, is moot [citing Reilly].
See, also, e.g., Commonwealth v. Tharp, 574 Pa. 202, 228-29, 830 A.2d 519, 534-35 (2003) where the Supreme Court affirmed a sentence of death despite claims that the actions of the trial judge raised doubt as to his impartiality. The Supreme Court's opinion in that case makes it clear that the sole concern of the reviewing tribunal is whether there was a fair trial and not whether the trial judge's decision not to recuse was right or wrong or whether it constituted a violation of some rule of conduct. The Supreme Court said:
Although unusual and perhaps ill-advised, the trial judge's actions at sentencing do not warrant a retroactive finding that recusal at trial was required, especially in the absence of any evidence of record suggesting actual bias against appellant that may have affected the fairness of the trial.
More than simply directing that the inquiry on appeal is limited to whether there was a fair trial or not, the Supreme Court has held that the Superior Court had no *892 authority to consider the propriety of the trial judge's decision on a recusal motion.
In its opinion in Reilly the Supreme Court took the Superior Court to task for some of its rulings in that case relating to standards and procedures for the recusal of trial judges which the Supreme Court viewed as matters reserved exclusively to it. For example, the Supreme Court said:
Superior Court reasoned that the recusal standard was an objective one that created a burden to show only that a reasonable observer might question a judge's impartiality, not that the trial court's actions actually resulted in prejudice. In this regard, Superior Court established a rule of judicial administration that in any recusal motion, a different judge would be required to rule on the motion, because the judge being asked to recuse could not objectively address the issue of his impartiality.
Reilly, supra, at 218, 489 A.2d at 1298 (emphasis added). As to those rulings the Supreme Court said: "We declare this procedure inappropriate and preclude its use." Id.
The Supreme Court then declared the exclusivity of its jurisdiction in the enforcement of rules of judicial conduct and reproved the Superior Court for "unwarranted intrusions" thereupon. The Court said:
In furtherance of our exclusive right to supervise the conduct of all courts and officers of the judicial branch of government pursuant to Article V, Section 10(c) of our Constitution, we have adopted rules of judicial conduct for ourselves and all members of the judicial branch. (See Rules of Judicial Conduct, effective January 1, 1974, and reported at 455 Pa. XXXIX.) The enforcement of those rules, however, is beyond the jurisdiction of the Superior Court and to the extent that it has attempted to interpret Canon 3C by creating new standards of review on recusal motions, procedures for raising recusal questions, or for enforcement of violations of the Code, they are without effect, as unwarranted intrusions upon this Court's exclusive right to supervise the conduct of all courts and officers of the judicial branch.
* * * * *
Perceived violations of either Code do not permit the trial courts or the intermediate appellate courts to alter the rules of law, evidentiary rules, presumptions or burdens of proof. More importantly, violations of those Codes are not a proper subject for consideration of the lower courts to impose punishment for attorney or judicial misconduct. The Constitution provides a mechanism for the enforcement of violations of the Code of Judicial Conduct and the Judicial Inquiry and Review Board is authorized, on its own volition, where necessary, to investigate violations of the Code of Judicial Conduct (see Rule 1 Rules of Procedure Governing the Judicial Inquiry and Review Board). Upon the Board's findings and determinations recommending disciplinary action for violations of the Code, the matter is referred to this body. . . . This procedure, except for impeachment proceedings, is the exclusive mode established for the discipline of our judges for violations of the Code and we have not abdicated or delegated any of our supervisory authority in enforcing these standards of conduct to Superior Court. To presume that the Code or its alleged violations can be reviewed by any tribunal other than those we authorize is a misapprehension of the purpose of the Code, and is seen as an impermissible meddling into the administrative and supervisory functions of this Court over the entire judiciary. *893 Id. at 218-20, 489 A.2d at 1298-99 (emphasis added). See, also, Goodheart, et al. v. Casey, et al., 523 Pa. 188, 198, 565 A.2d 757, 762 (1989).
It is clear, then, that the reported opinions of our appellate courts[6] in cases which come to them from trial courts which have denied recusal motions provide no precedent to guide this Court in deciding whether Respondent's failure to recuse in this case was a violation of Rule 8A. of the Rules Governing Standards of Conduct of Magisterial District Judges.
Having said that and that is certainly true so far as the intermediate appellate courts of the Commonwealth are concerned on the authority of Reilly we note that in Municipal Publications, supra, and in a number of criminal cases, the Supreme Court has commented on the propriety of a trial judge's refusal to recuse.[7]
For example, in the Municipal Publications case, though specifically stating that it was not deciding the question of "whether Judge Snyder should be disqualified from the underlying libel action" the Supreme Court observed:
The allegations on which the recusal motion was based focused upon a purported personal relationship between Judge Snyder and counsel for plaintiff Edgehill in the libel suit, and specifically upon alleged ex parte discussions between them in chambers concerning the case, including the recusal motion. Taken as a whole those allegations, if true, would require Judge Snyder's disqualification from the libel action and necessitate a new trial.
Municipal Publications, Inc., et al. v. Court of Common Pleas of Philadelphia County, 507 Pa. 194, 201, 489 A.2d 1286, 1289 (1985).
We note that none of these Supreme Court cases came to the Court through the "mechanism for the enforcement of violations of the Code of Judicial Conduct." Reilly, supra, at 220, 489 A.2d at 1299 and, thus, the Court made no determination as to whether a violation of the Code of Judicial Conduct had, or had not, occurred.
Nevertheless, though not deciding that question head on, these Supreme Court cases do provide helpful insight for this Court in deciding the question.
In addition, there is one case which did come to the Supreme Court through the constitutionally prescribed mechanism for enforcement of violations of the Code of Judicial Conduct. That case, Judicial Inquiry and Review Board v. Fink, 516 Pa. 208, 532 A.2d 358 (1987), came to the Supreme Court from the Judicial Inquiry and Review Board (JIRB) with its recommendations[8]*894 relating to alleged violations of Canon 3(C)(1)(a) of the Code of Judicial Conduct.[9]
In that case, the Respondent was elected to office in 1977 after an acrimonious campaign in which he defeated the incumbent, Judge Patterson. In 1982, when Judge Patterson's son was brought before the Respondent on drug related charges, the defendant requested Respondent's recusal. Respondent denied the request stating he had no bad feelings about the defendant's father and that "The holy ghost came down on my shoulder and cleansed me of all those feelings." The Supreme Court held that Respondent's failure to recuse was a violation of Canon 3(C)(1)(a) for, in these circumstances, his impartiality might reasonably be questioned.
We find that this Respondent's impartiality to hear and decide the case of Commonwealth v. David Presto, might reasonably be questioned. The circumstances which lead to this conclusion include:
David Presto's father, James Presto, had been hanging around Respondent's court offices for several years leading up to the time when the case against David Presto was scheduled for hearing before Respondent.
During this time James Presto frequently had meetings with Respondent "most of the time behind closed doors."
During this time Respondent persuaded James Presto to give him $12,000 cash as a loan for two or three weeks to John Sabino, a friend of Respondent's.
Respondent then delivered Presto's $12,000, along with $10,000 of his own money to Sabino.
After the two or three weeks passed without repayment, Respondent called Sabino seeking repayment on behalf of himself and Presto.
Shortly thereafter Sabino gave Presto a check for $12,000 which "bounced." Thereupon, Respondent called Sabino threatening legal action on Presto's behalf.
There are indications that the Supreme Court expects the determination of whether a judge's impartiality might reasonably be questioned to be an objective one. See, Commonwealth v. Darush, 501 Pa. 15, 24, 459 A.2d 727, 732 (1983), where the Supreme Court said the trial judge should recuse when "a significant minority of the lay community could reasonably question the court's impartiality."
Since 1974, when Congress enacted revisions to the statute governing disqualification in the federal courts,[10] those courts have been employing an "objective" standard.[11] There is no doubt that is what Congress intended.[12] We are cautious *895 about relying on cases from other jurisdictions on matters of judicial discipline,[13] nevertheless, we find it appropriate here because the language of the federal statute is identical to Rule 8A. which we are here called upon to enforce, and because the indications we have from our Supreme Court on this subject appear to be in concord with those of the federal courts. We call attention, particularly, to the case of Pepsico v. McMillen, supra, where the test was stated to be:
[W]hether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case.
Id. at 460. In that opinion Judge Posner went on to make the observation that the court "Recogniz[ed] the inherently subjective character of this ostensibly objective test." Id. However, whatever the nature of the test is thought to be, we have little difficulty in concluding that such an observer would entertain such a doubt as to Respondent's impartiality in the case of Commonwealth v. David Presto.
We are mindful of what we said in In re McCutcheon, 846 A.2d 801 (Pa.Ct.Jud.Disc. 2004) regarding the reality of the conditions "on the ground" in the courts of our magisterial district judges in the Commonwealth. That case is the only case where this Court has considered disqualification under either Canon 3C(1) or Rule 8A., and in that case we said:
[G]eneralities do not serve in dealing with questions of personal bias; such determinations must be made case by case.
Id. at 816. In McCutcheon we found that the Judicial Conduct Board had failed to establish that the Respondent had a personal bias in favor of Philip Bartoe (a party) such as would bring her impartiality into question; but that case bears no resemblance to this: for example, in McCutcheon we found that the nature of the Respondent's contacts with Philip Bartoe were "incidental and adventitious."[14] By contrast, this Respondent's contacts with David Presto's father were part of everyday business, often in private, and included a distinctly uncommon business adventure which could be seen to have caused Respondent to become beholden to David Presto's father.
We conclude that the Judicial Conduct Board has established a violation of Rule 8A.(1) of the Rules Governing Standards of Conduct of Magisterial District Judges.
We mention that the parties filed a number of stipulations in this case which have to do with whether Respondent's disposition of the case was justified. Such considerations are irrelevant in this Court's assessment of Respondent's alleged violation of Rule 8A.(1).[15] Review of the propriety of Respondent's disposition is the responsibility of another court in the event an appeal is taken from Respondent's order.
(b) Conduct which brings the judicial office into disrepute.
As noted above, the Board has included this count in the Complaint, averring that the conduct of Respondent, in failing to *896 disqualify himself in the case of Commonwealth v. David Presto, was a violation of Rule 8A.(1), and we have so found, but also that the same conduct was a violation of this additional constitutional precept. Although the Board may have found it advisable to include this charge, we find it unnecessary to address it.
In In re Eagen, 814 A.2d 304 (Pa.Ct.Jud. Disc.2002) this Court said:
Unlike a criminal case in which the range of penalties is determined by the number of charges and the statutory sentence mandated for each offense upon which there is a finding of guilt, the scope of sanctions available to this Court is not so circumscribed. Any finding by this Court that a judicial officer has violated the Constitution of Pennsylvania or the Code of Judicial Conduct subjects that judge to the full range of appropriate discipline. Furthermore, in exercising our discretion in imposing disciplinary sanction, we are guided not by the number of ways the Respondent's conduct has offended the Constitution or Code, but by the nature of the conduct itself and any mitigating or aggravating circumstances.
Id. at 306-07. See, also, In re Pazuhanich, 858 A.2d 231, 234-35 (Pa.Ct.Jud.Disc. 2004); In re Berkhimer, 828 A.2d 19, 22 n. 1, 23 (Pa.Ct.Jud.Disc.2003); In re Sullivan, 805 A.2d 71, 74 (Pa.Ct.Jud.Disc.2002).
Accordingly, since we are satisfied that Respondent's conduct constituted a violation of Rule 8A.(1), we decline to address this additional charge.
PART 3. Commonwealth v. William G. Cornell
The Board has charged that Respondent's conduct set out in Findings of Fact Nos. 22-29 is such that:
(a) brings the judicial office into disrepute,
(b) prejudices the proper administration of justice, and
(c) constitutes a violation of Rule 8A. of the Rules Governing Standards of Conduct of Magisterial District Judges.
The conduct of Respondent in the Cornell case was essentially the same as in the Martorella case, i.e., an overt attempt to influence the prosecuting officer in this case the Chief of the local police, whose job required him to appear regularly before Respondent, by telling him the defendant was a union guy and that he wanted to help him. Actually, the only difference is that this time the case was coming up in Respondent's court.
The same reasons and the same authority which support our conclusions in the Martorella case hold here and we find that the Board has established that Respondent's conduct in the Cornell case was:
(a) such that brings the judicial office into disrepute, and
(b) such that prejudices the proper administration of justice.
In addition, the Board has charged that Respondent's conduct in the Cornell case was a violation of Rule 8A.(1) of the Rules Governing Standards of Conduct of Magisterial District Judges. That Rule requires a judge to disqualify himself from a case in which his impartiality might reasonably be questioned because of personal bias or prejudice.
We hold that a judge who interferes in a case in an attempt to affect the outcome of the case, by that act, announces his personal bias and prejudice and declares his partiality and is ipso facto unqualified to remain in the case; and if he does he violates Rule 8A.(1). Respondent did remain in the Cornell case and actually conducted the hearing and so we *897 find that to have been a violation of Rule 8A.(1).
PART 4. Commonwealth v. Kelly Jo Schupp
The Board has charged that Respondent's conduct set out in Findings of Fact Nos. 30-41 is such that:
(a) brings the judicial office into disrepute,
(b) prejudices the proper administration of justice, and
(c) constitutes a violation of Rule 8A. of the Rules Governing Standards of Conduct of Magisterial District Judges.
The elements of Respondent's conduct in this case are the same as in Cornell and Martorella in that Respondent again interfered in a case by attempting to persuade the prosecuting witness, Patricia Beahan, who had filed a private criminal complaint, to reduce the charge. Again, the case was pending before Respondent.
In addition, at Schupp's arraignment. Respondent struck up a singularly injudicious relationship with her. He told her that she didn't look like a person who would be guilty of shoplifting, that he knew the prosecuting witness and that her job as security officer at Boscov's required her to bring charges in his court frequently; he told her that the charges could be reduced and that he would help her. He gave her his cell phone number and the two had numerous phone conversations while the case was pending before Respondent. He had lunch with her at which time he told her she deserved a lesser charge and that he was going to talk to the prosecuting witness about that. True to his word, he did just that, presenting himself at Patricia Beahan's office at the Boscov's store where he solicited her to reduce the charges against Schupp.
Again, for the reasons and upon the authority set forth in our discussion of the Martorella case, supra, we find that Respondent's conduct in relation to Kelly Jo Schupp was such that:
(a) brings the judicial office into disrepute, and
(b) prejudices the proper administration of justice.
We turn now to consider whether, given Respondent's actions on behalf of Kelly Jo Schupp in the case against her, pending before him, Respondent's impartiality might reasonably be questioned and, thus, his failure to disqualify himself was a violation of Rule 8A.(1) of the Rules Governing Standards of Conduct of Magisterial District Judges.
There is no doubt that Respondent's conduct in the Kelly Jo Schupp case, as in the Cornell case, demonstrated his personal bias and prejudice and made him ipso facto unqualified to act as the judge in that case.
We note, however, that in the Schupp case, the parties, i.e., the Commonwealth with the consent of Patricia Beahan on behalf of Boscov's, and the defendant, agreed that Schupp would enter a plea and would be placed in the ARD program. The arrangement was made by the parties who were all present in Respondent's court on the day of Schupp's preliminary hearing but before the hearing. It is suggested that, because Respondent did not actually conduct a hearing, there was no violation of Rule 8A.(1).
We reject that suggestion.
Any trial lawyer knows that the disposition of cases is driven by the identity of the judge assigned to the case as much as by anything else. A judge need not actually preside at the trial in order to actually affect the outcome; pre-trial rulings and pre-trial behavior of the judge *898 affect pre-trial decisions which parties must regularly make. We do not consider that the Supreme Court, in promulgating Rule 8A.(1), intended to limit its application to cases where the judge actually conducts a trial. We believe the Supreme Court intended certainly in a case like Commonwealth v. Kelly Jo Schupp where the bias of the judge is so evident and unconcealed and his partiality so recognizable that the obligation of the Rule be not so limited. We believe the obligation to disqualify mandated by Rule 8A.(1) becomes an obligation at whatever point in the proceeding that it should be evident to the judge that his impartiality might reasonably be questioned.[16]
It seems to us, moreover, that the language of the Rule itself verifies this. Rule 8A. provides:
A. A magisterial district judge shall disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . . (Emphasis added.)
Accordingly, we find that Respondent's failure to disqualify himself in the case of Commonwealth v. Kelly Jo Schupp was a violation of Rule 8A.(1) of the Rules Governing Standards of Conduct of Magisterial District Judges.
PART 5. Commonwealth v. Anson M. Murgenovich
The Board has charged that Respondent's conduct set out in Findings of Fact Nos. 42-50 constitutes such that:
(a) brings the judicial office into disrepute,
(b) prejudices the proper administration of justice, and
(c) constitutes a violation of Rule 8A. of the Rules Governing Standards of Conduct of Magisterial District Judges.
In this case Patrolman Appelgarth filed a criminal complaint against Anson Murgenovich charging him with operating a motor vehicle while under the influence of alcohol. Shortly thereafter, while Appelgarth was in Respondent's court on other business Respondent called Appelgarth into his chambers and said: "I see you filed a charge against Anson. He's a friend of ours. Do you think there's something we could do to help him out?" Respondent then told Patrolman Appelgarth that he, Respondent, was going to be the district justice on the bench on the day Mr. Murgenovich's preliminary hearing was scheduled.
This behavior is a perfect reflection of Respondent's conduct in the Martorella, Cornell and Schupp cases which we found to be such that (a) brings the judicial office into disrepute, and (b) prejudices the proper administration of justice. Therefore, we find that his conduct in the Murgenovich case constituted a violation of those two constitutional provisions.
Further, we hold, for the reasons set out supra in the Cornell and Schupp cases *899 that Respondent's failure to disqualify himself from the Murgenovich proceeding constituted a violation of Rule 8A.(1) of the Rules Governing Standards of Conduct of Magisterial District Judges.
IV. CONCLUSIONS OF LAW
PART 1. Commonwealth v. Anthony Martorella
1. The conduct of Respondent is such that brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.
2. The conduct of Respondent is such that prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.
3. The determination of the Judicial Conduct Board that there existed good cause for it to consider the acts of Respondent even though they may have taken place more than four years prior to the Board's notification thereof was justified and appropriate under the circumstances of this case.
PART 2. Commonwealth v. David Presto
4. The conduct of Respondent constituted a violation of Rule 8A.(1) of the Rules Governing Standards of Conduct of Magisterial District Judges.
PART 3. Commonwealth v. William G. Cornell
5. The conduct of Respondent is such that brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.
6. The conduct of Respondent is such that prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.
7. The conduct of Respondent constituted a violation of Rule 8A.(1) of the Rules Governing Standards of Conduct of Magisterial District Judges.
PART 4. Commonwealth v. Kelly Jo Schupp
8. The conduct of Respondent is such that brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.
9. The conduct of Respondent is such that prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.
10. The conduct of Respondent constituted a violation of Rule 8A.(1) of the Rules Governing Standards of Conduct of Magisterial District Judges.
PART 5. Commonwealth v. Anson M. Murgenovich
11. The conduct of Respondent is such that brings the judicial office into disrepute, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.
12. The conduct of Respondent is such that prejudices the proper administration of justice, a violation of Article V, § 18(d)(1) of the Pennsylvania Constitution.
13. The conduct of Respondent constituted a violation of Rule 8A.(1) of the Rules Governing Standards of Conduct of Magisterial District Judges.
14. For the reasons set forth in Conclusions of Law Nos. 1-13, Respondent is subject to discipline under Article V, § 18(d)(1) of the Pennsylvania Constitution.
*900 PER CURIAM.
ORDER
AND NOW, this 29th day of December, 2005, based upon the Opinion filed herewith, it is hereby ORDERED:
That, pursuant to C.J.D.R.P. No.503, the attached Opinion with Findings of Fact and Conclusions of Law be and it is hereby filed, and shall be served on the Judicial Conduct Board and upon the Respondent,
That, either party may file written objections to the Court's Findings of Fact and Conclusions of Law within ten (10) days of this Order. Said objections shall include the basis therefor and shall be served on the opposing party,
That, in the event that such objections are filed, the Court shall determine whether to entertain oral argument upon the objections, and issue an Order setting a date for such oral argument, That, in the event objections are not filed, within the time set forth above, the Findings of Fact and Conclusions of Law shall become final, and this Court will issue an Order setting a date, pursuant to C.J.D.R.P. No. 504, for a hearing on the issue of sanctions.
MUSMANNO, J., did not participate in the consideration or disposition of this case.
NOTES
[1] See, p. 885, supra.
[2] In an early case before this Court, the Board contended that its determination of "good cause" was entirely within its discretion and not reviewable by this Court. We rejected that argument. We said: "We therefore find that reviewing the Board's compliance with its Rule 15 is a matter within our purview indeed it is our duty . . . ." In re Cicchetti, 697 A.2d 297, 308 (Pa.Ct.Jud.Disc. 1997). Indeed, the Pennsylvania Supreme Court has held: "We emphatically reject the assertion that the board's compliance with its rules of procedure is absolutely beyond judicial review. The rules exist in part to insure that due process is accorded judicial officers subject to investigation and prosecution by the board .... Every minor or technical violation of the board's rules may not be a denial of due process, and the appropriate remedy may be a minor matter; nonetheless, the guarantee of due process requires that the board's procedures be reviewable." In re Hasay, 546 Pa. 481, 494-97, 686 A.2d 809, 816-17 (1996).
[3] We call attention to the fact that in Cicchetti, Rule 15 was not the only basis for excluding the twenty and thirteen year old testimony. Fundamental fairness upon which due process is grounded was the concept relied upon. Laches was another. See, Cicchetti, supra, at 306-07, 310. There is no suggestion that either of those doctrines is implicated in this case.
[4] Not to mention Mr. Dobo.
[5] The case of Municipal Publications, Inc., et al. v. Court of Common Pleas of Philadelphia County, 507 Pa. 194, 489 A.2d 1286 (1985) is an exception for there the Supreme Court invoked its plenary jurisdiction and issued a writ prohibiting the trial judge from conducting the recusal hearing, which was being held after the underlying case had been tried. In that case, the Supreme Court's ruling was virtually inevitable because, in addition to a personal relationship between Judge Snyder and counsel for plaintiff and ex parte communications between them. "The crucial aspect of the disqualification proceedings is the fact that Judge Snyder actually permitted himself to be called as a witness and decided to give testimony concerning his own conduct. Thus he not only had personal knowledge of disputed facts but was in a position to rule on objections to his own testimony and to assess his own credibility in light of conflicting evidence. Under such extraordinary circumstances, it was clearly inappropriate for Judge Snyder to preside over the recusal hearing." Id. at 201, 489 A.2d at 1289.
[6] See, as well, U.S. Steel Corporation v. Papadakos, 63 Pa. Cmwlth. 213, 437 A.2d 1044 (1981), where the Commonwealth Court, in refusing to review Judge Papadakos's refusal to recuse in the real estate tax assessment appeal of U.S. Steel despite his public statements that he desired the assessments on U.S. Steel property to be raised, held that "the enforcement of the Code of Judicial Conduct is not within the purview of the Commonwealth Court." Id. at 218, 437 A.2d at 1047.
[7] See, e.g., Commonwealth v. King, 576 Pa. 318, 839 A.2d 237 (2003); Commonwealth v. White, 557 Pa. 408, 734 A.2d 374 (1999); Commonwealth v. Abu-Jamal, 553 Pa. 569, 720 A.2d 121 (1998); Commonwealth v. Darush, 501 Pa. 15, 459 A.2d 727 (1983); Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982); Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976); Commonwealth v. Goodman, et al., 454 Pa. 358, 311 A.2d 652 (1973); Commonwealth v. Young, 439 Pa. 498, 269 A.2d 18 (1970); Commonwealth ex rel. Allen v. Rundle, 410 Pa. 599, 189 A.2d 261 (1963).
[8] Under the constitution as then structured, i.e., before the amendments of 1993 which created the Judicial Conduct Board and this Court, JIRB held hearings and made recommendations to the Supreme Court which then conducted de novo review.
[9] Canon 3(C)(1)(a) is identical to Rule 8A. of the Rules Governing Standards of Conduct of Magisterial District Judges with one (curious) exception: The canon prescribes what the judge "should" do; the rule prescribes what the magisterial district judge "shall" do.
[10] See, 28 U.S.C. § 455.
[11] See, e.g., Pepsico v. McMillen, 764 F.2d 458 (7th Cir.1985); Home Placement Service, Inc., et al. v. Providence Journal Company, 739 F.2d 671 (1st Cir.1984); U.S. v. Sellers, 566 F.2d 884 (4th Cir.1977).
[12] See, Report of the House Committee on the Judiciary, H.R.Rep. No. 93-1453, 93rd Cong. 2nd Sess. Reprinted [1974] U.S.Code Cong. & Admin. News, pp. 6351, 6354-55.
[13] In re Toczydlowski, 853 A.2d 20, 24 (Pa.Ct. Jud.Disc.2004); In re Crahalla, 747 A.2d 980, 988 (Pa.Ct.Jud.Disc.2000).
[14] The full text of our discussion of the alleged violation of Rule 8A.(1) in McCutcheon is set out at 846 A.2d at 813-16.
[15] Similar stipulations were filed with respect to Respondent's disposition of the Schupp and Murgenovich cases. All of these stipulations are irrelevant and none have been included in our Findings of Fact.
[16] See, Abramson, Judicial Disqualification under Canon 3 of the Code of Judicial Conduct, 2d Ed. 1992, p. 10. "Canon 3C is intended to be used by a judge at the start of each case . . . to assist in deciding whether at that point he should disqualify himself from any participation in the proceedings." See, also, Duplan Corporation v. Deering Milliken, Inc., 400 F.Supp. 497 (D.S.C.1975) and In the Matter of Judicial Disciplinary Proceedings Against Carver, 192 Wis.2d 136, 531 N.W.2d 62 (1995) where the Supreme Court of Wisconsin, suspended a judge "when he did not disqualify himself from the pending case promptly upon determining there was cause for his disqualification." Id. at 63. That court adopted the findings of the Judicial Conduct Commission that Judge Carver "was required by law to disqualify himself as soon as he learned on March 22, 1993 that the Wilcox case was assigned to him . . . ." Id. at 69. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263346/ | 893 A.2d 849 (2006)
Beverly J. SCHENCK, Appellant
v.
TOWNSHIP OF CENTER, BUTLER COUNTY, Pennsylvania.
Commonwealth Court of Pennsylvania.
Argued October 17, 2005.
Decided February 28, 2006.
*851 Robert F. Hawk, Butler, for appellant.
Manning J. O'Connor II, Pittsburgh, for appellee.
BEFORE: FRIEDMAN, Judge, COHN JUBELIRER, Judge, and SIMPSON, Judge.
OPINION BY Judge SIMPSON.
This case involves a request under the law commonly known as the Right to Know Act (Act),[1] by an adverse party for a description of billed litigation services rendered to a municipality by its solicitor. Beverly J. Schenck (Plaintiff) appeals from an order of the Court of Common Pleas of Butler County (trial court) essentially denying disclosure of a description of legal services rendered in litigation.
Plaintiff filed a request with the Township of Centre seeking copies of itemized invoices from its solicitor, Michael D. Gallagher, for the period from December 2002 through 2003. The requested invoices included bills for the solicitor's services in a pending action filed by Plaintiff against four members of the Township's Board of Supervisors.[2]
Thereafter, the Township sent Plaintiff copies of the solicitor's invoices that related to general legal services. However, the Township indicated that further review of invoices for litigation services was necessary to determine whether any entries were subject to attorney-client privilege, attorney work product privilege or deliberative process privilege and thus not subject to access under the Act.
Later, the Township sent Plaintiff copies of the solicitor's invoices that related to litigation matters, explaining that the "description of services rendered" for each charge was redacted pursuant to section 3.2 of the Act, 65 P.S. § 66.3.2.[3] The copies provided to Plaintiff reflected the identity of the case for which the services were provided, the dates that the services were provided, the name of the attorney providing *852 the services, the time expended, the hourly rate and the total amount charged. The Township also attached a letter from the solicitor to the Township advising that the described services are not subject to access under the Act.[4]
Ultimately, Plaintiff filed a complaint against the Township,[5] seeking an order directing the Township to provide un-redacted copies of the invoices and awarding attorney fees and costs. Thereafter, the Township filed a motion for judgment on the pleadings. Plaintiff filed a motion for summary judgment, and the Township asked the trial court to consider its motion for judgment on the pleadings as a cross-motion for summary judgment.
The trial court heard argument, but did not receive evidence. During argument, Plaintiff's counsel asserted that the Township needed to produce the invoices to prove that the documents were not accessible. However, special counsel now representing the Township argued that production of the invoices was not required. According to Township's special counsel, this controversy involved only a question of law, that is, whether the services description of a solicitor's invoice is subject to access under the Act.
The trial court determined the description of services portion of litigation invoices constitutes attorney work product and does not qualify as a public record. It therefore granted summary judgment to the Township, thereby affirming the action taken by the Township.
A timely appeal was taken to this Court.[6] Plaintiff assigns numerous trial court errors, including: error by making a decision without examining the un-redacted invoices; error by failing to identify a statutory basis for its decision and by relying on inappropriate cases; error by permitting the solicitor to raise privilege properly belonging to the client municipality; and, error by denying access in the absence of just and proper cause. Plaintiff also asserts she was denied due process because the solicitor was biased and did not immediately "recuse himself" from the *853 Township's initial determination, thereby perpetuating a conflict of interest.
The primary issue we decide is whether the description of litigation-related legal services in a solicitor's invoice is shielded from access under the Act. We hold that it is, although for reasons different than those upon which the trial court relied. Brown v. Blaine, 833 A.2d 1166 (Pa.Cmwlth.2003) (Commonwealth Court may affirm trial court for any reason so long as the basis of decision is clear).
A party asserting right to disclosure of documents pursuant to the Act must establish that the requested documents were generated or kept by "an agency" and that they constitute "public records." Goppelt v. City of Phila. Revenue Dep't, 841 A.2d 599 (Pa.Cmwlth.2004). The party seeking access bears the burden of establishing that the requested material bears the characteristics of a public record. Id.
Here, there is no dispute that the invoices in question bear the characteristics of a "public record" as defined in the Act. However, this does not conclude our inquiry, as certain types of privilege may exclude the invoices from the definition. See LaValle v. Office of General Counsel, 564 Pa. 482, 769 A.2d 449 (2001) (attorney work product and materials reflecting predecisional, internal deliberative aspects of agency decision making not qualify as public records under the Act).
Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things. 1 Pa.C.S. § 1932(a). Statutes in pari materia shall be construed together, if possible, as one statute. 1 Pa.C.S. § 1932(b). Statutes are to be construed in harmony with the existing law and as part of a general and uniform system of jurisprudence. Northern Tier Solid Waste Auth. v. Dep't of Revenue, 860 A.2d 1173 (Pa.Cmwlth.2004).
The Act is one of a series of legislative enactments designed to provide a comprehensive format governing public access to the meetings and hearings of public agencies. Judge v. Pocius, 28 Pa.Cmwlth. 139, 367 A.2d 788 (1977). The other statutes are now embodied in the Sunshine Act.[7]Id. Because they relate to the same class of things, information about actions by public agencies, the Act and the Sunshine Act are in pari materia. See Mellin v. City of Allentown, 60 Pa.Cmwlth. 114, 430 A.2d 1048 (1981) (open meeting laws and right to know laws in pari materia with provisions of Third Class City Code addressing open meetings and open journals); 1974 Op. Att'y Gen. Pa. 175 (Right to Know Act presumed to be read in pari materia with Sunshine Act). Indeed, this has been the practice for Commonwealth agencies since 1974. 1974 Op. Att'y Gen. Pa. 175 (attorney general opinion regarding Act binding upon Commonwealth agencies, advisory as to other governmental bodies); see 1977 Op. Att'y Gen. Pa. 40, 4 D. & C.3rd 218 (Pa.Dept.Just.1977). Therefore, they shall be construed together, if possible, as one statute.
A provision in the Sunshine Act permits an agency to conduct some of its business in executive session, outside the view of the public. Thus, 65 Pa.C.S. § 708(a)(4) permits an executive session so the agency may "consult with its attorney or other professional advisor regarding information *854 or strategy in connection with litigation or issues on which identifiable complaints are expected to be filed." This provision acknowledges that the public would be better served if the governing body had private discussions on matters in litigation prior to public resolution. Reading Eagle Co. v. Council of City of Reading, 156 Pa. Cmwlth. 412, 627 A.2d 305 (1993). If knowledge of litigation information became public, it would impair a municipality's ability to defend those matters. Id.
This statutory exception from the disclosure provisions of the Sunshine Act broadly relates to information in connection with pending or impending litigation. It is not limited to attorney work product.
Construing the Act and the Sunshine Act together as one statute and as part of a uniform system of jurisprudence, this exception from disclosure applies here. Indeed, it would be absurd if litigation information from the solicitor was protected the evening of a municipal meeting, but it could be accessed the next morning through a description of litigation-related legal services in an invoice. We presume such an unreasonable result is not intended. 1 Pa.C.S. § 1922(1). Under this construction, it is not necessary for a trial court to read every invoice and evaluate every described service for the presence of attorney work product. Instead, all information from the solicitor relating to pending or impending litigation is inaccessible.
Turning now to the specific arguments raised by Plaintiff, we hold they lack merit. The Township did not err when it denied access to the description of litigation-related services, because the litigation information provision of the Sunshine Act is construed to be part of all statutes with which it is in pari materia, including the Act. The solicitor properly protected the information in the absence of his client's consent to disclose it. Rule 1.6(a) of the Rules of Professional Conduct, 204 Pa. Code § 81.4, Rule 1.6(a) (Explanatory Comment [3]: "The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source." (emphasis added); Explanatory Comment [4]: "Paragraph (a) prohibits a lawyer from revealing information relating to the representation of a client. This prohibition also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person." (emphasis added).) See also, 1977 Op. Att'y Gen. Pa. 40.
As to the request for hearing on remand, we decline the invitation. As previously discussed, it is not necessary for someone to cull through each service described in each invoice searching for attorney work product.
Plaintiff also makes a brief argument that Section 704(2) of the Second Class Township Code, 53 P.S. § 65704(2),[8] which requires a township treasurer to keep accounts open for inspection by supervisors and citizens, also supports access. This argument was not made to the trial court, nor was it preserved in the Statement of Matters Complained of on Appeal. Moreover, the argument is meritless, as provisions in the Second Class Township Code relating to open journals shall be read in pari materia with the Act and the Sunshine Act. See Mellin v. City of Allentown.
Regarding the claim of denial of due process for failure of the solicitor to withdraw earlier, we discern no merit, for several reasons. First, there is no indication in the record that Plaintiff sought the *855 solicitor's disqualification. Second, as to the merits, there is no obvious reason why the interests of the solicitor and the Township are in conflict. Instead, both seem equally motivated to protect information about current litigation. Because Plaintiff fails to explain the conflict or to refer to any Rule of Professional Conduct or of Disciplinary Enforcement which the solicitor supposedly violated, there is no basis for relief on the theory of conflict of interest. Third, we conclude the solicitor's advice was correct.
For all the foregoing reasons, we hold that the description of litigation-related services in a solicitor's invoice is not accessible under either the Act or the Sunshine Act in the absence of consent from the client municipality. Therefore, we affirm the trial court's grant of summary judgment to the Township.[9]
ORDER
AND NOW, this 28th day of February, 2006, the order of the Court of Common Pleas of Butler County in the above-captioned matter is AFFIRMED.
Dissenting Opinion by Judge FRIEDMAN.
I respectfully dissent. The narrow issue raised in this appeal is whether the description of services rendered by a township solicitor, as set forth in the solicitor's invoices, constitutes attorney work product as a matter of law. In affirming, the majority concludes that "all information from the solicitor relating to pending or impending litigation is inaccessible" to the public under the law commonly known as the Right to Know Law (Law).[1] (Majority op. at 854) (emphasis added).
The majority reasons that: (1) the Law and the Sunshine Act[2] are in pari materia because they relate to the same class of things (access to information about actions by public agencies);[3] (2) because they are in pari materia, the statutes shall be construed together, if possible; (3) section 8(a)(4) of the Sunshine Act, 65 Pa.C.S. § 708(a)(4), permits an agency to hold executive session for the purpose of consulting with its attorney regarding information in connection with litigation; (4) this exemption from the Sunshine Act's requirement to hold public meetings is not limited to attorney work product; and, therefore, (5) all information from the solicitor related to pending or impending litigation is inaccessible to the public under both statutes.[4] (Majority op. at 853-54.)
Under the analysis employed by the majority, all disbursements made by a government *856 agency that flow from deliberations shielded from public scrutiny under the Sunshine Act would be protected from disclosure under the Law. I submit that the majority's analysis ignores the important distinction between the two statutes and is contrary to well-settled law.
Significantly, although the Law and the Sunshine Act are similar in design, they are not applicable to the same specific issues. The Sunshine Act applies to official action and deliberations by a quorum of agency members and requires that the same take place at a public meeting. The Law, on the other hand, applies only to "public records," a term specifically defined by that statute to mean certain documents, i.e., "any account, voucher or contract dealing with the receipt or disbursement of funds ... and any minute, order or decision by an agency...." 65 P.S. § 66.1 Because the statutes are intended to apply to different, specific matters, application of the two statutes will yield different results, even where the general matter at issue is substantially similar.
The Sunshine Act permits an agency to meet in executive session for the purpose of: discussing any employment matter; discussing the negotiation or arbitration of collective bargaining agreements; considering the purchase or lease of real property; consulting with an attorney; and discussing other matters protected by a lawful privilege. 65 Pa.C.S. § 708. However, once public funds are expended, regardless of whether the expenditure flows from deliberations in an executive session, documents reflecting that expenditure are public documents subject to access under the Law. 65 P.S. § 66.1. See Tribune-Review Publishing Company v. Westmoreland County Housing Authority, 574 Pa. 661, 833 A.2d 112 (2003) (holding that litigation settlement between a public entity and its employees was a public document under the Act); Legal Capital, LLC v. Medical Professional Liability Catastrophe Loss Fund, 702 A.2d 869 (Pa.Cmwlth.1997), aff'd, 557 Pa. 10, 731 A.2d 132 (1999) (holding that settlement records concerning medical malpractice claims were public records under the Right to Know Law unless a statutory *857 exception to the act applied); and Morning Call, Inc. v. Lower Saucon Township, 156 Pa.Cmwlth. 397, 627 A.2d 297 (1993) (holding that settlement agreement between township and private party was a public record subject to disclosure under the Law).
There is no dispute that records reflecting attorney work product doctrine do not qualify as public records under the Law. LaValle v. Office of General Counsel, 564 Pa. 482, 769 A.2d 449 (2001). However, LaValle does not support the majority's statement that certain types of privilege "may exclude the invoices" from the definition of a public record. (Majority op. at 853.) Rather, the court in LaValle held that the report at issue was not subject to disclosure under the Law "to the extent that [it] constitutes work product ...." Id. at 497, 769 A.2d at 458. Therefore, I believe that the narrow issue raised in this case, i.e., whether the descriptions of services rendered as set forth in an attorney's invoice constitutes attorney work product as a matter of law, must be addressed.
The work product doctrine evolved from the holding in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947) (recognizing a qualified immunity from discovery "for the work product of a lawyer"),[5] and is embodied in Pa. R.C.P. No. 4003.3, which states:
Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party's representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party's attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party's attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.
The comment to the rule states that this rule is carefully drawn and means exactly what it says. "It immunizes the lawyer's mental impressions, conclusions, opinions, memoranda, notes summaries, legal research and legal theories, nothing more." Pa. R.C.P. No. 4003.3, Explanatory cmt. 1978.
The majority's broad holding (that all information from the solicitor related to litigation, not just attorney work product, is inaccessible to the public under both statutes) would lead to an absurd result: an individual such as Plaintiff would not be entitled to review documents related to litigation under the Law, but would be entitled to obtain production of the same documents through discovery, which only protects attorney work product.
The specific question presented here has not been decided by our appellate courts. However, federal decisions have addressed the applicability of the attorney-client privilege and work product doctrine in the context of discovery disputes. Federal courts have held that attorney billing statements and time records are subject to the attorney-client privilege to the extent those records reveal the nature of services *858 performed. See e.g., Fidelity & Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516 (E.D.Pa.1996). However, federal courts have repeatedly reviewed documents in camera when deciding claims that documents are protected from discovery under the attorney-client and/or work product privilege. For example, see Valenti v. Allstate Insurance Co., 243 F.Supp.2d 200 (M.D.Pa.2003), wherein the "description of services" was redacted from legal invoices in an action seeking attorney fees. The court reviewed a privilege log listing more than 100 redacted documents, with all of the redactions based on claims that the redacted material related to an attorney's mental impressions, conclusions or legal strategy. After reviewing the unredacted documents, the court rejected numerous assertions that the descriptions of services were protected by the work product doctrine as unfounded. See also Carter v. City of Philadelphia, 2000 WL 632988, 2000 U.S. Dist. Lexis 6658 (E.D.Pa. No. 97-4499, filed May 5, 2000), and Garvey v. National Grange Mutual Insurance Co., 167 F.R.D. 391 (E.D.Pa.1996), reflecting the court's in camera review of documents claimed to be protected by the work product doctrine and attorney-client privilege. Similarly, in the context of a probate proceeding, In re Estate of Wood, 818 A.2d 568 (Pa.Super.2003), appeal denied, 584 Pa. 696, 882 A.2d 479 (2005), our superior court instructed the trial court to review material in camera to determine if protection under the work product doctrine was warranted.
Contrary to the approach taken by the majority here, in these cases the courts declined to base their decisions on the mere assertions of a party that the privilege applies. I, too, would decline to accept the Township's mere assertions in this matter as sufficient to support the grant of summary judgment. Instead, I would hold that the issue presented here is a mixed question of fact and law that cannot be answered without review of the solicitor's invoices.[6]
The trial court did not review the invoices at issue, and its determination is not supported by any other evidence of record. Accordingly, I would reverse.
NOTES
[1] Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1-66.9.
[2] In that action, the trial court sustained several of the Township's preliminary objections on July 14, 2003. Nine days later, Plaintiff filed her request under the Act. The trial court subsequently dismissed Plaintiff's complaint by order dated February 26, 2004. Plaintiff unsuccessfully appealed to this Court, and to the Supreme Court, which denied appeal by allowance. (Township's brief at.1.)
[3] Section 3.2 of the Act was added by the Act of June 29, 2002, P.L. 663. It provides that where information not subject to access is an integral part of the public record and cannot be separated, the agency shall redact the information that is not subject to access and grant access to the remainder of the public record.
[4] Plaintiff filed exceptions to the partial denial of her request, contesting the solicitor's assertions that the redacted information was not accessible under the Act. By letter, the Township informed Plaintiff that at its regularly scheduled meeting of September 10, 2003, the Board of Supervisors voted to deny her exceptions. Thereafter, attorney Manning J. O'Connor II, who was retained by the Township as special counsel, served Plaintiff with findings of fact and conclusions of law in support of the Board of Supervisors' decision. Reproduced Record (R.R.) at 52a-64a. In pertinent part, the Board of Supervisors found that the solicitor's invoices reflect summaries of legal advice given to the Township and contain descriptive entries that include mental impressions, strategy, tactics and other matters that are subject to the attorney-client privilege, the work product privilege and/or the deliberative process privilege. (Findings of Fact, Nos. 24, 33, 34.) Thus, the Board of Supervisors concluded that the Township properly redacted that information.
[5] Section 4 of the Act, 65 P.S. § 66.4(b), provides that a requester may file a petition for review, or other document as may be required by local rule, with the court of common pleas, within thirty days of the denial of a request or final decision affirming the denial of a request by a non-Commonwealth agency.
[6] Our standard of review in a Right to Know Act case is whether an error of law was committed, constitutional rights were violated, or necessary findings of fact are supported by substantial evidence. Inkpen v. Roberts, 862 A.2d 700 (Pa.Cmwlth.2004). As to questions of law, the scope of review is plenary. Id. We review the agency's decision. See Section 4 of the Act, as amended by Act of June 29, 2002, P.L. 663, 65 P.S. § 66.4(d) (record on appeal consists of request, response, exceptions, any agency hearing transcript, and agency's final determination).
[7] 65 Pa.C.S. §§ 701-716. The former Open Meeting Law, Act of July 19, 1974, P.L. 486, as amended, formerly 65 P.S. §§ 261-269, was repealed by the former Sunshine Act, Act of July 3, 1986, P.L. 388, as amended, formerly 65 P.S. §§ 271-286, which in turn was repealed and reenacted in codified form by the Act of October 15, 1998, P.L. 729.
[8] Act of May 1, 1933, P.L. 103, as reenacted and amended.
[9] In the absence of any authority that the Pennsylvania Rules of Civil Procedure in general, and the discovery rules in particular, apply to this statutory appeal under the Act, we decline to embrace the dissent's discussion regarding discovery rules and cases applying them.
[1] Act of June 21, 1957, P.L. 390, as amended, 65 P.S. §§ 66.1-66.9.
[2] 65 Pa.C.S. §§ 701-716.
[3] I agree that the Law and the Sunshine Act are part of a series of enactments designed to provide a comprehensive format governing public access to official information and meetings of public agencies. The two statutes are distinguishable, however, in that the intent of the Law is to ensure the availability of government information to the citizens of the Commonwealth by permitting access to official information, Tribune-Review Publishing Co. v. Allegheny County Housing Authority, 662 A.2d 677 (Pa.Cmwlth.1995) appeal denied, 546 Pa. 688, 686 A.2d 1315 (1996), whereas the object of the Sunshine Act was to open the decision-making processes of state government to greater public scrutiny and accountability. Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 368 A.2d 675 (1977).
[4] The majority then cites Rule 1.6 of the Rules of Professional Conduct and states that "the solicitor properly protected the information in the absence of his client's consent to disclose it." (Majority op. at 854.) However, the Rules of Professional Conduct do not apply to government agencies, but only to professionals engaged in the practice of law. Because Plaintiff here requested public records from the Township itself and not from the Township's counsel, the Rules of Professional Conduct have no bearing on this matter.
In quoting the explanatory comment to Rule 1.6, the majority impliedly holds that this rule provides a separate basis for denying public access to the entire invoice under the Law. Such a holding has no support in the law, and it ignores the critical distinction between private entities, to whom the Law does not apply, and public entities, which are accountable to the public for the expenditure of public funds. Unlike a private individual, a township may not conceal the fact that it has engaged legal representation once the township has disbursed public funds or entered into a contract to do so. See 65 P.S. § 66.1.
In addition, the majority does not conclude that the redacted information at issue in this case is protected by the attorney-client privilege. Nevertheless, I note that it is well-settled that the attorney-client privilege does not apply to all documents prepared by an attorney. See, e.g., Slusaw v. Hoffman, 861 A.2d 269 (Pa.Super.2004) (holding that invoices were not privileged documents to the extent that they do not disclose confidential communications), and Joe v. Prison Health Services, Inc., 782 A.2d 24 (Pa.Cmwlth.2001) (holding that the defendants failed to establish that any documents for which they claimed attorney-client privilege were confidential communications for which attorney-client privilege is properly invoked). There is no indication in the majority opinion, or in the record, that the redacted information consists of or reflects confidential communications between attorney and client.
[5] The majority dismisses the analysis of the work product doctrine undertaken in cases concerning discovery issues. I submit, however, that whether attorney work product is protected from disclosure by discovery rules, statute or common law, the determination of whether particular information is or is not attorney work product requires the same analysis.
[6] Reading Eagle Co. v. Council of City of Reading, 156 Pa.Cmwlth. 412, 627 A.2d 305 (1993), the case upon which the majority relies, does not support the majority's analysis. In Reading Eagle Co., the issue before the court was the specificity of the reason for holding executive session that must be disclosed to the public under section 8 of the Sunshine Act, 65 Pa.C.S. § 708. The court observed that section 8 of the Sunshine Act acknowledges that the public is better served if the governing body is permitted to have private discussions of litigation matters. However, we determined that the reason given for the executive session must be genuine and meaningful, and one the citizen can understand, because permitting "generalized fluff would frustrate the very purpose of the Act." Reading Eagle, 627 A.2d at 307 (quotation omitted). We rejected the city council's contention that the public could be adequately informed without identifying the general nature of the complaint to be discussed at executive session; we also rejected the city council's assertion that the outcome of our decision was unduly burdensome. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334496/ | 260 S.E.2d 841 (1979)
Wanda C. GABRITSCH
v.
Donald F. GABRITSCH.
No. 14482.
Supreme Court of Appeals of West Virginia.
December 18, 1979.
*842 Robert M. Harvey, Dunbar, for appellant.
Don C. Kingery, Kingery & Nibert, Point Pleasant, for appellee.
PER CURIAM:
In this proceeding the appellant, Wanda C. Gabritsch, contends that an attorney, whom she had previously relieved of representation, improperly, and without authority, prepared and submitted for entry a judgment order which adversely affected her. She also contends that the Circuit Court of Mason County erred in denying her motion, made under Rule 60(b) W.Va.R. C.P., to set aside that order.
On June 22, 1977, the Circuit Court of Mason County conducted a hearing in this divorce proceeding. After the appellant had presented her case, the court declared a recess. During that recess the parties discussed certain contested property matters. When the hearing resumed, counsel for the appellant's husband announced that the parties had, during the recess, reached an agreement. Among other points, the appellant, Mrs. Gabritsch, interjected, "It's not agreeable, but we accept." The judge asked: "I understand alimony will be waived." The appellant responded: "That's correct." Thereupon, the court granted the appellant a divorce and noted the court would confirm the agreement and that it would be merged into the final decree in the case.
According to the appellant's petition for appeal, after the hearing the appellant and her counsel fell into disagreement as to what the terms of the agreement reached during the recess had been. Some two weeks after the hearing, the appellant, by letter dated July 11, 1977, advised her counsel that she was relieving him of his representation of her in the case.
In spite of the appellant's letter, the appellant's counsel prepared and submitted for entry a judgment order incorporating the agreement reached during the recess in the divorce hearing. That order was approved by the husband's counsel and was entered on July 25, 1977.
Subsequently, the appellant filed a motion under Rule 60(b), W.Va.R.C.P., to set aside the final order. Among other points, the appellant alleged that:
1. Her counsel had no authority to prepare and submit for entry the judgment order because she had relieved him from representation of her in the case and had instructed him not to enter the order.
2. She was not adequately represented by counsel at the divorce hearing in that counsel (a) did not allow her to present *843 favorable evidence; (b) counsel did not discuss the case with her prior to the hearing, and at the time of the hearing incorrectly advised her that she would have to reach a settlement agreement in the case; and (c) counsel made no attempt to put into the record any of the appellant's objections to the agreement.
Subsequent to the filing of the 60(b) motion, the trial court on May 24, 1978, conducted a hearing to determine whether there were sufficient grounds to set aside the divorce decree. At that hearing the appellant was permitted to introduce evidence on her motion. At the conclusion of the hearing, the court found that the settlement agreement arrived at between the parties during the recess had been dictated into and made a part of the record of the hearing. The court also found that at the time of the hearing the appellant had raised no objection to the agreement. The court concluded that the judgment order entered by the court reflected the ruling made by the court at the conclusion of the hearing. The court ruled that the appellant had failed to establish sufficient grounds under Rule 60(b) for the court to set aside the final decree and award a new trial.
The appellant, Mrs. Gabritsch, now appeals contending that the Judge of the Circuit Court of Mason County abused his discretion in denying her 60(b) motion when the undisputed facts in the case show that:
(a) Her former counsel had no authority to prepare and submit to the court for entry a judgment order because he had been relieved by her as counsel and had been instructed by her not to enter the order.
(b) Appellant was denied due process of law because she received no notice that the judgment order would be entered.
(c) The evidence reveals substantial equitable circumstances in favor of the appellant such as require that the judgment order of July 25, 1977, be set aside on a Rule 60(b) motion.
We have held that a motion to vacate a judgment made pursuant to Rule 60(b), W.Va.R.C.P., is addressed to the sound discretion of the court, and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion. Toler v. Shelton, W.Va., 204 S.E.2d 85 (1974).
To support her contention that her former counsel had no authority to enter a judgment order because she had relieved him of representation of her in the case, the appellant relies upon Kelly v. Belcher, 155 W.Va. 757, 187 S.E.2d 617 (1972). In Syllabus point 2 of Kelly we said:
"When it appears from the evidence that an order of dismissal confirming a compromise resulted from a misunderstanding or mistaken belief of the attorney for the parties whose cause of action was dismissed by virtue of the compromise and that such compromise was unauthorized and was not consented to by such parties, the judgment of the trial court denying their motion to set aside and vacate the order of dismissal constituted an abuse of discretion and such judgment will be reversed upon appeal."
The case before us is clearly distinguishable from the Kelly case in that in the case before us the appellant accepted and authorized the proposed divorce settlement as it was read into the record by her husband's attorney. She stated: "It's not agreeable, but we accept." When asked whether she understood that alimony would be waived, the appellant indicated that she did. The final order as entered by the court contains substantially the same provisions contained in the compromise agreement as read into the record by the husband's attorney during the divorce hearing. The attorney who prepared the final order for entry had been retained by appellant; in preparing the order he substantially reduced the oral agreement which had been placed before the court in formal written form. In view of these circumstances, we cannot conclude that the trial court abused its discretion in denying the appellant's 60(b) motion on the ground that the appellant's former counsel had no authority to submit the order for entry to the court.
*844 With regard to her other two contentions, that she was denied due process of law because she received no notice that the judgment order would be entered, and that the evidence reveals substantial equitable circumstances such as require the order to be set aside, the appellant introduced no evidence during the 60(b) motion hearing.
The case is distinguishable from State ex rel. Atkinson v. Belcher, W.Va., 258 S.E.2d 442 (1979) and Peck v. Goshorn, W.Va., 249 S.E.2d 765 (1978) where we held that the dismissal by the circuit court of an appeal of a civil case from the magistrate court without notice to the affected party of when the matter would be heard violates due process. Here the divorce case was heard in the circuit court. The appellant was present with her counsel and participated in the agreed settlement which was then communicated to the court and dictated into the record. The appellant was not deprived of notice, and as we have previously found, the order did not alter the material terms of the settlement agreement. The appellant's due process contention is, therefore, without merit.
The appellant's final ground, that the record reveals substantive equitable grounds for setting aside the order, is also without merit. We have reviewed the record of the Rule 60(b) hearing and while it discloses that the appellant was not happy about the terms of the divorce settlement or the performance of her retained counsel, nevertheless, it does not reveal any ground that would prove mistake, inadvertence, surprise, excusable neglect or unavoidable cause which we require on a Rule 60(b) motion. Dissatisfaction by the parties with the results of a divorce case is common, but such dissatisfaction does not constitute a ground for relief under Rule 60(b).
The judgment of the Circuit Court of Mason County is therefore, affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1010309/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 02-4897
SHAUNDELL LAMAR WILSON, a/k/a
Dale,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-00-136-MU)
Submitted: April 9, 2003
Decided: April 25, 2003
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Randolph M. Lee, Charlotte, North Carolina, for Appellant. Jack M.
Knight, Jr., Assistant United States Attorney, Charlotte, North Caro-
lina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WILSON
OPINION
PER CURIAM:
In February 2002, Shaundell Lamar Wilson pled guilty to conspir-
acy to possess with intent to distribute cocaine base in violation of 21
U.S.C. § 846 (2000), pursuant to a written plea agreement. The plea
agreement stipulated that if Wilson provided substantial assistance,
the Government could, within its sole discretion, make a motion for
a downward departure pursuant to U.S. Sentencing Guidelines Man-
ual § 5K1.1 (2000). The plea agreement likewise stated that the Gov-
ernment would exercise its discretion to determine whether Wilson’s
assistance was substantial. At sentencing, the Government did not
move for a downward departure for substantial assistance. Wilson did
not object to his guidelines sentencing range or the failure of the Gov-
ernment to move for a substantial assistance departure. The court sen-
tenced Wilson to serve 292 months’ imprisonment, and Wilson filed
a timely notice of appeal.
Wilson’s counsel has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), acknowledging that he has examined
the entire record and has been unable to identify any meritorious
issues for appeal. Nevertheless, counsel raised the issue of whether
the Government breached the plea agreement or acted in bad faith in
failing to recommend a downward departure based on substantial
assistance. Counsel has notified Wilson of his right to file a pro se
supplemental brief, but Wilson has not done so.
When the Government has not promised to request a substantial
assistance departure in return for defendant’s substantial assistance, a
court may review the prosecutor’s decision not to move for a depar-
ture only if the refusal is based on an unconstitutional motive, such
as race or religion, or is not rationally related to a permissible govern-
ment objective. Wade v. United States, 504 U.S. 181, 185-86 (1992);
United States v. Maddox, 48 F.3d 791, 796 (4th Cir. 1995). Before the
court may inquire into the Government’s reasons, defendant must
make a "substantial threshold showing" of impropriety. Wade, 504
U.S. at 186. As counsel concedes, Wilson has failed to make the nec-
essary threshold showing. In the absence of any evidence of an
unconstitutional motive or bad faith on the part of the Government,
UNITED STATES v. WILSON 3
we find no error in the Government’s declining to move for a down-
ward departure based on substantial assistance. See United States v.
Snow, 234 F.3d 187, 191 (4th Cir. 2000).
We have examined the entire record in this case in accordance with
the requirements of Anders and find no meritorious issues for appeal.
Accordingly, we affirm Wilson’s conviction and sentence. This court
requires that counsel inform his client, in writing, of his right to peti-
tion the Supreme Court of the United States for further review. If the
client requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334543/ | 271 S.C. 289 (1978)
247 S.E.2d 315
INSURANCE FINANCIAL SERVICES, INC., Appellant,
v.
The SOUTH CAROLINA INSURANCE COMPANY, Respondent.
20742
Supreme Court of South Carolina.
August 14, 1978.
*290 David M. Ratchford and Donald E. Jonas, of Ratchford & Cooper, Columbia, for appellant.
David W. Robinson, II of Robinson, McFadden, Moore & Pope, Columbia, for respondent.
August 14, 1978.
RHODES, Justice:
This action was brought by the appellant insurance agency against the respondent insurance company seeking both a temporary and permanent injunction against respondent's alleged unlawful termination of the appellant's agency contract with the company. The complaint also sought damages for the alleged unlawful termination. After an injunction pendente lite had been obtained barring termination of the contract, a $2,000 injunction bond was set by the court in accordance with an agreement between the parties. The respondent subsequently made motions to have the bond increased and to have the action transferred to the nonjury, equity calendar for trial. The lower court granted both motions. The appellant contends it was error to place the action on the equity docket and to increase the bond. We affirm the lower court.
*291 This action centers around South Carolina Act 1177, which was passed in 1974 and significantly revised the automobile insurance law in this State. Prior to passage of this act, high risk drivers were authorized to be written insurance at "nonstandard" rates which were higher than the "standard" rates at which other drivers were offered insurance. However, the 1974 Act eliminated the distinction between "standard" and "nonstandard" risks and mandated that insurance for all drivers be provided at equalized rates based on a uniform rating and classification system to be developed by the South Carolina Insurance Commissioner.
The appellant alleges that prior to passage of the 1974 Act, it had a considerable volume of "nonstandard" automobile business written through The Travelers Insurance Companies at the higher "nonstandard" rates. According to the complaint, the respondent, anticipating that Travelers was going to cancel the contract with the appellant, notified the appellant on July 18, 1975 that its agency contract with appellant was being terminated effective August 18, 1975. Travelers terminated the agency agreement with appellant on July 24, 1975, and the appellant alleges the cancellation by the respondent was an attempt to avoid writing the "nonstandard" business which had been previously placed by appellant with Travelers. The appellant claims that the respondent's conduct specifically violates the provision of the 1974 Act which is presently codified as S.C. Code § 38-37-940 (2) (1976) and which states that:
No insurer of automobile insurance shall cancel its representation by an agent primarily because of the volume of automobile insurance placed with it by the agent on account of the statutory mandate of coverage nor because of the amount of the agent's automobile insurance business which the insurer has deemed it necessary to reinsure in the Facility.
As a result of the termination of the agency relationship, the appellant alleges that its business has been greatly damaged *292 and that, if the termination is allowed to remain in effect, it will suffer irreparable harm to its business. In its prayer, appellant asks that the respondent be enjoined from terminating the agency relationship and that it be awarded damages in the amount of $500,000 actual and punitive.
The appellant's action was instituted on August 4, 1975. A hearing on the temporary relief sought was held before the Honorable Clyde A. Eltzroth and an injunction pendente lite was issued on October 31, 1975. Judge Eltzroth concluded that, if the temporary injunction were not granted, the appellant would suffer irreparable harm. This was based on his finding that, if the respondent were allowed to terminate the agency relationship, a "domino effect" would likely ensue whereby other companies represented by the appellant would also terminate the appellant in order to avoid writing the large book of "nonstandard" business with the ultimate result that appellant would represent no companies. Pursuant to Code § 15-55-60, Judge Eltzroth, by order dated November 10, 1975, set an injunction bond of $2,000, this amount having been agreed to by the parties.
The respondent subsequently moved on September 30, 1976 to have the injunction bond increased. In connection with this motion, the respondent also sought to have the action transferred to the non-jury, equity calendar for trial. After conducting a hearing, the Honorable Walter J. Bristow ordered that the action be transferred to the equity calendar and that the amount of the bond be increased to $50,000. This appeal followed.
We first consider the question of whether Judge Bristow erred in transferring the action to the equity calendar.
The appellant first contends that S.C. Code § 15-23-60 (1976) grants it an absolute right to a trial by jury. This contention is without merit. In pertinent part, § 15-23-60 provides that "[a]n issue of fact in an action for the recovery of money only ... must be tried by a *293 jury ..." (Emphasis added.) The present action, however, is not one for the recovery of money only for the appellant also seeks permanent injunctive relief. The action has both legal and equitable attributes and § 15-23-60 is inapplicable.
The appellant next contends that, even if Code § 15-23-60 does not vest it with an absolute right to trial by jury, the overwhelming character of the action is, nevertheless, legal because: (1) the action is based on a tort;[1] and (2) its main concern in bringing the action is to recover damages with the permanent injunction sought being merely incidental.
The appellant's argument that the present action is one at law solely because of its contention that it is based upon a tort is without merit. This argument ignores the fact that an action sounding in law may be transformed to one in equity because equitable relief is sought. See, 1 Am. Jur. (2d), Actions § 7 (1962). The appellant seeks a permanent injunction in the present action and, ordinarily, when injunctive relief is sought, an action is considered to be equitable. Atlantic and C. Air Line Ry. Co., 79 S.C. 266, 60 S.E. 675 (1908).
Since the appellant has prayed for money damages in addition to seeking equitable relief, characterization of the action as equitable or legal depends on the appellant's "main purpose" in bringing the action, Bramlett v. Young, 229 S.C. 519, 93 S.E. (2d) 873 (1956); Ogilvie v. Smith, 215 S.C. 300, 54 S.E. (2d) 860 (1949); and Alford v. Martin, 176 S.C. 207, 180 S.E. 13 (1935). The main purpose of the action should generally be ascertained from the body of the complaint. Id. However, if necessary, resort may also be had to the prayer for relief and any other facts and circumstances which throw light upon the main purpose of the action. Bramlett, supra.
Although the appellant asserts that its main purpose in bringing this action was to recover damages for the injury to its business, it seems clear that appellant's *294 main concern is to permanently enjoin the respondent from terminating the appellant's contract. As the appellant points out in its brief, "The character of its [the appellant's] relationship with those companies it represents is vitally important, the very essence of its continued existence." (Emphasis added.) The gravamen of the action is the preservation of the relationship. At the hearing before Judge Eltzroth, the appellant argued that if the respondent terminated the appellant agency other companies would follow suit and the appellant would be forced out of business. This project was a primary factor underlying Judge Eltzroth's decision to grant the injunction pendente lite. Given these circumstances, it is our opinion that the recovery of damages is only incidental to the primary objective of permanently enjoining defendant from terminating the agency relationship, which plaintiff maintains would have the effect of putting it out of business.
In addition, although the appellant demands considerable damages in the prayer of its complaint, it would appear that damages are limited by the facts of this case. Appellant was terminated for only a short period before the temporary injunction was granted. During this period, there were other companies in the agency with which business could be written. And, other than the bare assertion in the complaint that the appellant "has been damaged greatly", there is no allegation that appellant has lost customers or suffered other pecuniary loss.
The trial of a case in a court of equity does not foreclose the award of damages. Alderman v. Cooper, 257 S.C. 304, 185 S.E. (2d) 809 (1971).
The second question presented by the appellant is whether it was error for Judge Bristow to increase the amount of the injunction bond from $2,000 to $50,000.
An injunction bond may be subsequently increased upon a showing of a material change in conditions or *295 if unusual and unforeseen circumstances have developed since the original setting of the bond. Epps v. Bryant, 219 S.C. 307, 65 S.E. (2d) 112 (1951). We feel Judge Bristow correctly concluded that there had been a material change in conditions warranting an increase in the bond to $50,000.
The record indicates that, at the time the $2,000 bond was set by consent of the parties, the respondent's net loss on the business written by the appellant from January through August of 1975 was $5,987. However, the amount of loss thereafter materially increased to the extent that the net loss on the business written by the appellant totaled $56,850 for the first eight months of 1976.
While appellant argues that the respondent failed to minimize these losses by making maximum use of the reinsurance facility created under the Act, we are not impressed by this argument. The drastic increase in losses suffered by the respondent during the interim period in question is ample reason for the aforesaid increase of the injunction bond.
Affirmed.
LEWIS, C.J., and LITTLEJOHN, NESS and GREGORY, JJ., concur.
NOTES
[1] Relying primarily on the provisions of the 1974 Act codified in Code § 38-37-940, the appellant asserts the respondent's actions give rise to a cause of action for the tort of "unfair competition". | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2567336/ | 116 P.3d 978 (2005)
2005 UT App 285
SAVE OUR CANYONS, a Utah non-profit corporation; Herbert & Helga Lloyd, individuals; Karl Bryner, an individual; Mark & Pamela Anderson, individuals; Stephan & Veronique Otto, individuals; Lionel & Janice Mausberg, individuals; and Brian Moench, an individual, Plaintiffs and Appellants,
v.
BOARD OF ADJUSTMENT OF SALT LAKE COUNTY; Wasatch Pacific, Inc., a corporation; and Terry Diehl, an individual, Defendants and Appellees.
No. 20040766-CA.
Court of Appeals of Utah.
June 23, 2005.
*980 Paul R. Poulsen and Joseph E. Tesch, Tesch Law Offices, Park City, for Appellants.
David E. Yocom, District Attorney's Office, Thomas L. Christensen, Salt Lake County Attorney's Office, Richard D. Burbidge, and Jefferson W. Gross, Burbidge & Mitchell, Salt Lake City, for Appellees.
Before Judges BILLINGS, DAVIS, and THORNE.
OPINION
BILLINGS, Presiding Judge:
¶1 Appellants Save Our Canyons and various individuals (collectively SOC) challenge the trial court's order granting summary judgment to Appellees Board of Adjustment of Salt Lake County (the Board), Wasatch Pacific, Inc., and Terry Diehl (collectively Wasatch) and denying SOC's motion for summary judgment. Specifically, SOC argues that the trial court erred by affirming the Board's decision granting three variances from the Salt Lake County Foothills and Canyons Overlay Zone ordinances (FCOZ) for an access road to Wasatch's property (the Property) located north of the mouth of Big Cottonwood Canyon. We affirm.
BACKGROUND
¶2 On December 15, 1993, Salt Lake County (the County) approved a fifty-two lot subdivision of the Property.[1] The County *981 also approved an access road (original access road) to the Property that ran adjacent to the Salt Lake City Water Treatment Plant (the Plant) at the mouth of Big Cottonwood Canyon. The Salt Lake City Water Department (Water Department) notified Wasatch that it objected to the location of the original access road because of its close proximity to the Plant after the September 11, 2001 terrorist attacks. The Water Department informed Wasatch that it would refuse to provide service to the Property unless the original access road was relocated east of the Plant.
¶3 In order to alleviate the Water Department's safety concerns, Wasatch sought approval for construction of a new access road (new access road). On August 20, 2002, Wasatch filed an application with the Board requesting fourteen variances from FCOZ and the Foothills and Canyons Site Development and Design Standards. On December 10, 2002, the Salt Lake County Planning and Development Services Division approved the new access road subject to the Board's granting the variances.
¶4 On December 28, 2002, the Board held a public hearing on the fourteen variances. At that hearing, the Salt Lake County planning staff (the Staff) recommended denial of Wasatch's variance application because "the impacts to the site that are proposed by [Wasatch] far exceed the intent and purpose of the FCOZ ordinance."[2] The Board then closed the public hearing and did not reach a decision regarding the variances. The Board continued the matter to February 19, 2003 and requested that Wasatch coordinate and conduct any studies necessary to provide the Staff with more technical information regarding construction of the new access road.
¶5 At the February 19 meeting, the Staff, after conferring with Wasatch and receiving further technical information, again recommended denial of the fourteen variances. One of the Staff members stated that Wasatch had not fully explored other means of access to the Property including the original access road adjacent to the Plant. The Staff also expressed concern that the new access road required deep cuts and fills along the slope. After lengthy discussions, including testimony from the Staff; the County geologist; the County transportation engineer; Wasatch and its engineer; the County attorney; and after viewing a computer model of the new access road, the Board voted three to two to grant the fourteen variances subject to the approval of findings of fact and conclusions of law (Findings and Conclusions) to be presented at the next Board meeting.
¶6 After the Board approved the fourteen variances, on February 25, 2003, Utah Power & Light Company (UP & L), which owned the property where the original access road adjacent to the Plant was to be constructed, granted a conservation easement (the Easement) to Salt Lake City. The purpose of the Easement "is to preserve, protect[,] and maintain the Easement Property predominantly in a natural, scenic[,] and open condition in perpetuity in order to protect [Salt Lake City's] use of its water treatment plant."
¶7 On March 19, 2003, the Board held a meeting during which a motion was made to adopt the Findings and Conclusions for the fourteen approved variances. The Board voted not to adopt the Findings and Conclusions by a three to two vote because one Board member wanted more time to study them. Rather than continuing the vote, the Board denied the variances.
¶8 On April 11, 2003, Wasatch filed a notice of claim for injury with the County pursuant to Utah Code section 63-30-11, which provides, in relevant part, "[a]ny person having a claim for injury against a governmental entity . . . shall file a written notice of claim with the entity before maintaining *982 an action." Utah Code Ann. § 63-30-11 (2003).[3] At a subsequent Board meeting, Wasatch indicated that it had filed the notice in order to preserve its claim.
¶9 Wasatch redesigned the new access road (the redesigned access road) in order to alleviate most of the Staff's concerns with the previous design and eliminate the need for all but three of the fourteen variances. On April 28, 2003, Wasatch submitted a second application requesting the three variances from FCOZ: (1) section 19.72.030D.3.b, which limits individual segments of a road that will cross slopes between 30% and 50% to no more than 100 feet in length, (2) section 19.72.030D.3.c, which limits the cumulative length of individual segments that will cross slopes between 30% and 50% to no more than 10% of the total length of the road, and (3) section 19.72.030D.4, which provides that no street shall cross slopes greater than 50%.
¶10 On June 18, 2003, the Board held a public hearing on Wasatch's request for the three variances from FCOZ on the redesigned access road. The Staff recommended that the Board grant the three variances. In its written recommendations, the Staff stated that the previous design was reviewed on the basis that it was not the sole means of access to the Property and that "[s]ufficient information has now been presented to confirm [Wasatch's] previously unsubstantiated assertions that access via the subject property is indeed the only location for the proposed roadway." Thus, the Staff concluded that literal enforcement of FCOZ would deny Wasatch access to the Property and prohibit all development potential resulting in an unreasonable hardship to Wasatch. In addition, the Staff found that the new road design (1) eliminates the most severe cuts and fills required by the previous design because the new design incorporates elevated bridge segments, (2) better addresses environmental concerns by leaving wildlife corridors and surface water run-off substantially unimpeded in the elevated bridge segment areas, (3) complies with applicable ordinance requirements wherever feasible, (4) is more respectful of existing topography and strives to achieve acceptable slopes, and (5) allows for re-vegetation with native plants under and around the elevated bridge segments. The Staff also stated that Wasatch and its engineer have worked cooperatively with the County geologist, grading specialist, traffic engineer, and urban hydrologist to ensure that all safety issues will be satisfactorily addressed in the final road design and appropriately regulated through the permitted use process. Furthermore, the Staff noted that the County traffic engineer had concluded that the previous concerns regarding snow removal had been satisfactorily addressed with the new road design. After receiving the Staff's written recommendations to grant the three variances; reviewing a computer model of the redesigned road; and listening to presentations and testimony from the Staff, Wasatch, and members of the public, the Board voted unanimously to adopt the findings of the Staff and grant the three variances.
¶11 SOC appealed this decision to the Third District Court under Utah Code section 17-27-708, which provides that "[a]ny person adversely affected by any decision of a board of adjustment may petition the district court for a review of the decision." Utah Code Ann. § 17-27-708 (2001 & Supp.2004). On cross-motions for summary judgment, the district court upheld the Board's decision. SOC now appeals.
ISSUES AND STANDARDS OF REVIEW
¶12 SOC argues that the trial court erred by upholding the Board's granting of the three variances. "`When a lower court reviews an order of an administrative agency and we exercise appellate review of the lower court's judgment, we act as if we were reviewing the administrative agency decision directly' and `do not defer, or accord a presumption of correctness, to the lower court's decision.'" Carrier v. Salt Lake County, 2004 UT 98,¶17, 104 P.3d 1208 (citations omitted). Like the district court, our review is limited to whether the Board's decision *983 (1) "was conducted in an arbitrary or capricious manner," or (2) "illegally violated a statute, ordinance, or existing law." Id. at ¶26; see Utah Code Ann. § 17-27-708(2)(a), (b) (2001). We will consider the Board's decision arbitrary or capricious only if it is not "supported by substantial evidence in the record." Utah Code Ann. § 17-27-708(6); see Patterson v. Utah County Bd. of Adjustment, 893 P.2d 602, 604 (Utah Ct.App.1995). "In determining whether substantial evidence supports the Board's decision we will consider all the evidence in the record, both favorable and contrary . . . . [and] determine . . . whether a reasonable mind could reach the same conclusion as the Board. It is not our prerogative to weigh the evidence anew." Patterson, 893 P.2d at 604. However, whether or not the Board's decision "violates a statute, ordinance, or existing law," Utah Code Ann. § 17-27-708(2)(b), is reviewed for correctness, but we "also afford some level of non-binding deference to the interpretation advanced by" the Board. Carrier, 2004 UT 98 at ¶28, 104 P.3d 1208.
ANALYSIS
¶13 SOC argues that the Board's grant of the three variances was arbitrary, capricious, and illegal because its decision was not supported by substantial evidence in the record, see Utah Code Ann. § 17-27-708(2)(a), and because the Board failed to comply with all of the requirements in Utah Code section 17-27-707 and FCOZ.
¶14 Pursuant to Utah Code section 17-27-707, the Board may grant a variance from the zoning ordinance only if:
(i) literal enforcement of the zoning ordinance would cause an unreasonable hardship for the applicant that is not necessary to carry out the general purpose of the zoning ordinance;
(ii) there are special circumstances attached to the property that do not generally apply to other properties in the same district;
(iii) granting the variance is essential to the enjoyment of a substantial property right possessed by other property in the same district;
(iv) the variance will not substantially affect the general plan and will not be contrary to the public interest; and
(v) the spirit of the zoning ordinance is observed and substantial justice done.
Utah Code Ann. § 17-27-707(2)(a) (2001). SOC argues that the Board failed to satisfy prongs (i), (iv), and (v). However, the Board found[4] that prong (i) had been complied with as (1) there is no other location currently available for an access road than on this particular property slope, (2) literal enforcement of the zoning ordinance would deny Wasatch access to its adjoining property, (3) literal enforcement would prohibit all development potential of that parcel,[5] and (4) the road currently proposed could be safely *984 built in a way that substantially complies with the other ordinance requirements. The Board also found that the requirements for prong (iv) had been met as (1) allowing permitted uses complies with the general plan, (2) public interest is maintained by requiring whatever is built meets safety standards, (3) public interest is also maintained by the mitigation of environmental impacts, and (4) public interest is maintained as the design minimizes negative visual impact as much as possible. Finally, the Board found that the conditions of prong (v) were met because
[t]he Wasatch Canyons Master Plan supports residential development in the canyons subject to compliance with applicable ordinance provisions. By recognizing and respecting the rights of [Wasatch] to develop [its] property within the scope of the current ordinances, while at the same time requiring substantial compliance with those ordinances, and allowing for relief where it is impossible to comply with the strict interpretation of the ordinance, the spirit of the zoning ordinance is observed and substantial justice done.
¶15 SOC argues that there are no facts in the record to support the Board's findings. However, SOC has failed to marshal the evidence in the record supporting each of the challenged findings. SOC asserts that marshaling is not required in this case because the Board did not make its own findings of fact, relying instead upon the Staff's "unsubstantiated conclusory statements." SOC further argues that because there are ten years of records in this case, it is impossible to know which facts the Board relied upon in reaching its decision.
¶16 We have previously held that "[i]t is incumbent upon the party challenging the Board's findings or decision to marshal all of the evidence in support thereof and show that despite the supporting facts, and in light of conflicting or contradictory evidence, the findings and decision are not supported by substantial evidence." Patterson, 893 P.2d at 604 n. 7. We have refused to address claims for lack of proper marshaling. See id. at 605.
¶17 Thus, because the Board adopted the findings of the Staff, SOC could have marshaled all of the evidence in the record that supported the Staff's findings. See id. Because SOC failed to marshal the evidence, we accept the Board's findings. Accordingly, we will not address SOC's claim that granting the three variances was arbitrary and capricious. See id. at 604 ("[T]he Board's decision can only be considered arbitrary or capricious if not supported by substantial evidence.").
¶18 SOC further argues that the Board's decision was illegal because the board failed to address and comply with all FCOZ standards. In particular, SOC asserts that the Board is not permitted to grant a variance from section 19.72.030D.4 of FCOZ because it provides that "[u]nder no circumstances other than for permitted minor ski resort improvements shall any street, road, private access road, or other vehicular route cross slopes greater than fifty percent." However, this section of FCOZ merely sets forth in various subsections the development standards for roads and does not address variances. Under Utah Code section 17-27-707, a board of adjustment may grant a variance from "the requirements of the zoning ordinance as applied to a parcel of property" provided the applicant meet certain criterion, which the Board determined that Wasatch had met. Utah Code Ann. § 17-27-707(1), (2)(a). Further, there is nothing in FCOZ that prohibits the Board from granting variances from its standards. Accordingly, the Board had the authority to grant Wasatch a variance from this ordinance.
¶19 Additionally, SOC contends that the proposed road does not comply with road standards regarding the length of or number of lots within a cul-de-sac and that a final geologic report was not prepared prior the granting of the variances. The Board asserts that it was merely deciding whether or not to grant three specific variances from FCOZ; the Board was not approving the access road, nor its final design. We agree. Whether the access road complies with other development standards and ordinances was not before the Board, nor is it properly before this court.
*985 ¶20 SOC also contends that the Board violated the Open and Public Meetings Act, see Utah Code Ann. § 52-4-4 (2002), and had improper ex parte contacts with interested parties. There is no evidence in the record demonstrating that the Board conducted a closed meeting prior to the public hearing on June 18, 2003, and thus, there is nothing for us to review. Accordingly, we refuse to address this claim.
¶21 In addition, SOC argues that several members of the Board had improper ex parte contacts with a member of the Salt Lake County Council (the Council). SOC relies upon a newspaper article attached to its memorandum in support of its motion to clarify the record filed in Third District Court, which was denied. Thus, the article is not part of the Board's record and cannot be considered. Furthermore, the limited evidence in the record regarding ex parte contacts supports the trial court's conclusion that there were no improper ex parte contacts between members of the Board and the Council. SOC also asserts that the trial court's conclusion that there was no evidence of improper contact is "somewhat empty since the court frustrated that effort by denying [SOC's] request to engage in discovery to perfect that point." However, SOC did not appeal the denial of its discovery motion. Accordingly, we refuse to address this claim.[6]
CONCLUSION
¶22 We hold that the Board's decision was supported by substantial evidence in the record and that none of the Board's findings were arbitrary, capricious, or illegal. Accordingly, we affirm.
¶23 WE CONCUR: JAMES Z. DAVIS and WILLIAM A. THORNE JR., Judges.
NOTES
[1] The Boyer Company (Boyer) originally owned the Property and it was originally approved for a sixty-one lot subdivision. Wasatch obtained an option to purchase the property and acquired the property from Boyer on February 26, 2003.
[2] Under Salt Lake County Ordinance § 19.72.010, the general purpose of the FCOZ is to "promote the health, safety, and public welfare of the residents of the County, and, while being cognizant of private property rights, to preserve the natural character of the foothills and canyons by establishing standards for foothill and canyon development proposed in the unincorporated areas of the County."
[3] Title 63, Chapter 30 Governmental Immunity Act, was repealed in 2004 and replaced by Chapter 30d Governmental Immunity Act of Utah. See Utah Code Ann. §§ 63-30d-101 to -904 (2004). However, claims arising prior to July 1, 2004 are to be governed by Chapter 30. See id.
[4] The Board adopted the Staff's findings at the June 18, 2003 meeting. Specifically, the Board voted unanimously to "accept the findings of the staff and approve the three variances." (Emphasis added.)
[5] However, an applicant for a variance from a zoning ordinance may not demonstrate an "unreasonable hardship," Utah Code Ann. § 17-27-707(2)(a)(i) (2001), solely by economic loss; the hardship must be related to "special circumstances attached to the property that do not generally apply to other properties in the same district." Id. § 17-27-707(2)(a)(ii). In Xanthos v. Board of Adjustment of Salt Lake City, 685 P.2d 1032 (Utah 1984), our supreme court held that "[h]ardship is not demonstrated by economic loss alone. It must be tied to the special circumstances. . . . Every person requesting a variance can indicate some economic loss. To allow a variance anytime any economic loss is alleged would make a mockery of the zoning program." Id. at 1037. Unlike the applicant in Xanthos, Wasatch has demonstrated that special circumstances attach to the Property that do not generally apply to other properties in the district. Specifically, the Property is bounded on the east by forest service property and the forest service does not allow encroachment onto public property by private property interests; the Property is bounded on the west by the Plant and because of the serious safety issues that exist concerning access above the Plant since the September 11 terrorist attacks, the Water Department will not allow encroachment; UP & L granted a conservation easement to Salt Lake City that bounds the northwest corner of the Property; and the height of the hill and the elevation of Big Cottonwood Canyon Road are also limiting factors as the road must meet minimum slope requirements. Thus, Wasatch's hardship is not purely economic. See id.
[6] We do not reach the remaining issue regarding attorney fees under the private attorney general doctrine because of our disposition in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334449/ | 151 Ga. App. 425 (1979)
260 S.E.2d 381
KUSHNER
v.
SOUTHERN ADVENTIST HEALTH AND HOSPITAL SYSTEM, INC.
57740.
Court of Appeals of Georgia.
Argued May 9, 1979.
Decided September 20, 1979.
M. Jerome Elmore, for appellant.
Randall L. Hughes, for appellee.
SMITH, Judge.
Appellant, Dr. Robert L. Kushner, Jr., asserts that the trial court erred in entering judgment on the pleadings in his action for breach of contract. We affirm.
Appellant entered into a medical services contract with appellee hospital, under which appellant was to provide appellee radiological services for renewable three year periods. Procedural requirements for termination or nonrenewal of the contract are contained in paragraph 11, which states: "The term of this Agreement shall be for three years and shall automatically be renewed for three *426 years unless either party gives the other party at least 120 days written notice prior to the expiration of the three-year period. Thereafter, the agreement shall automatically be renewed for three-year periods unless either party gives the other party at least 120 days written notice prior to the expiration of such three-year periods.
"During the initial terms of this Agreement or any renewal term thereof, the services of the Radiologist as set forth herein, shall not be terminated by the Hospital except after 120 days written notice and after a determination has been made that the Radiologist is not providing adequate radiological services under the terms of this Agreement. The initiation of this determination will be based upon a recommendation originating from the Medical/Dental staff. Further, no termination shall take effect without prior consultation with the Medical/Dental staff of the Hospital and without the Radiologist being afforded a hearing on all matters concerning any proposed termination." The initial three-year period under the contract began on January 1, 1975 and ended on December 31, 1978. By letter dated August 21, 1978, appellant was given notice that his contract with appellee was not going to be renewed for another three-year period. In entering judgment on the pleadings, the trial court held that, as a matter of law, appellee's notice to appellant satisfied the nonrenewal provisions of the contract and therefore the contractual relationship had ended. Appellant asserts that notice alone did not satisfy the nonrenewal provisions of the contract. It is argued that, in addition to providing notice of nonrenewal, appellee was also required to make a determination, after a hearing, that appellant was not providing adequate radiological services under the agreement. We disagree.
1. Paragraph 11 of the contract contains two distinct subparagraphs. Subparagraph 1 sets forth a simple notice requirement for nonrenewal of the contract. Subparagraph 2 provides a more elaborate procedure where the contract is to be terminated "during" a three-year period. Appellant argues that subparagraph 2, which applies to terminations of the contract "during" a *427 three-year period, covers termination occurring both before and at the end of a three-year-period. Appellant also contends that the final sentence of subparagraph 2, which states that "... no termination shall take effect without prior consultation... and without the Radiologist being afforded a hearing on all matters concerning any proposed termination," applies to both subparagraph 1 and subparagraph 2. At a minimum, appellant argues, it is at least unclear whether the provisions of subparagraph 2 apply to nonrenewal as well as termination of the contract and therefore evidence must be adduced to explain the ambiguity. Appellant's assertions, though arguably creative, are wholly unconvincing.
The construction of paragraph 11 urged by appellant is both unreasonable and unnatural. Subparagraph 1 deals exclusively with renewal and nonrenewal of the contract. Subparagraph 2 is concerned with "termination" of the contract "during" a three-year period. While, conceptually, nonrenewal might be considered a form of termination of a contract, this categorization is of no consequence where the parties to an agreement deal with nonrenewal and termination as separate matters. "Where the language is unambiguous and but one reasonable construction of the contract is possible, the court must expound it as made..." Cato v. Aetna Life Ins. Co., 164 Ga. 392, 398 (138 S.E. 787) (1927).
2. The remaining enumerations of error are without merit.
Judgment affirmed. Quillian, P. J., and Birdsong, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334479/ | 260 S.E.2d 238 (1979)
Thomas LANE
v.
Sarah E. SCOTT, Administratrix of the Estate of Eugene Scott, Deceased.
Record No. 780278.
Supreme Court of Virginia.
November 21, 1979.
Jay T. Swett, Charlottesville (McGuire, Woods & Battle, Charlottesville, on briefs), for appellant.
S. W. Tucker, Richmond (Hill, Tucker & Marsh, Richmond, on brief), for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
POFF, Justice.
The dispositive issue on this appeal is whether, as a matter of the law of the case, appellant Thomas Lane was a joint tort-feasor liable in damages for the wrongful death of Eugene Scott.
The motion for judgment was filed by the decedent's mother, administratrix of his estate, against Lane and Carl E. Colvin, Jr.[*] After both parties had rested, the trial court found that "[t]here isn't too much dispute in the direct evidence" but that the "inferences and conclusions from the evidence do differ making it . . . a proper *239 case for the jury". Upon that finding, the court overruled both motions to strike. On October 27, 1976, the jury returned a verdict for Lane, and the plaintiff moved to set the verdict aside. By order entered September 27, 1977, the trial court held that "Lane is liable to the plaintiff as a matter of law", set the verdict aside, and ordered that another jury be empanelled to assess damages. That jury awarded the plaintiff damages in the sum of $18,000, and the verdict was confirmed by final order entered December 1, 1977.
Lane assigns error to the order setting aside the first jury's verdict; the plaintiff assigns cross-error to an evidentiary ruling in the damage trial. No error is assigned to the evidentiary rulings or the rulings on instructions in the liability trial.
Colvin, a farm worker employed by Lane, lived with his wife and three children in a tenant house on Lane's farm. Returning from a shopping trip late one evening in December 1973, the Colvins saw a strange car parked near a woodshed at their home. As Colvin backed out of the driveway, the strange car followed and, with its horn blowing, pursued Colvin along the highway. After twice reversing his direction, Colvin arrived at Lane's home, told him what had happened, and asked him to investigate. Leaving Mrs. Colvin and the children with Mrs. Lane, Lane took his .30 caliber rifle and he and Colvin drove to the tenant house where they saw a light burning in the bathroom. Colvin, who could not remember leaving that light burning, entered the house and got his .22 caliber rifle.
Lane and Colvin then drove back to Lane's home, and Colvin left with his family. A short time later, Mrs. Colvin and the children returned, reported that the strange car was back, and asked Lane to "please go over there and help." Mrs. Colvin was "in hysterics" and the children "were all crying". Mrs. Lane called the sheriff, and Lane got in his pickup truck and drove to the tenant house.
As he entered the driveway, he saw the strange car facing him. Lane got out of his truck and "hollered" for Colvin. Colvin, standing behind a bush, answered, and Lane walked to the car where he saw what appeared to be a man "sleeping on the wheel." Knocking on the window and getting no response, Lane opened the car door and shook the man. The man grabbed Lane, tore his jacket, pushed him against the door, got out of the car, cursed Lane, and started to run. Colvin attempted to stop him, but the man struck Colvin in the face and knocked him down. Lane ordered the man to halt and fired his rifle "in the air". With Colvin in pursuit, the man ran behind the woodshed. Lane, who had gone back to his truck to "unjam" his rifle, followed and found the two men "scuffling" over Colvin's rifle. Colvin was "down on one knee". The other man was "over top of [Colvin], holding the rifle", and Lane "grabbed the fellow by the back of the neck" and "pulled him off". The man struck at Lane and Lane fell backwards to the ground. By the time he had gotten to his feet, the other two men had run a distance of approximately 150 feet. At this point, Lane thought he saw Colvin's arms "come up in the air". As Lane approached, Colvin was holding his rifle, which was broken into two pieces. The other man was lying on the ground. Lane could detect no pulse or breathing, and Colvin said that he supposed he had hit the man too hard with his rifle.
Realizing that there was a man "dead in the field and I was there with a gun", Lane "got scared" and "made up this story, trying to delete myself from being involved." At Lane's suggestion, Colvin "kicked in" the door of the house, and, when the deputy sheriff arrived, they told him that Colvin had chased an intruder from his home and that Lane had arrived only in time to see him running toward the woodshed. After consulting with his wife, Lane corrected the story in an interview with the officers the next morning.
The decedent, who was bearded, was identified as Eugene Scott. Scott once worked two weeks on Lane's farm and was clean-shaven at that time. Lane testified that he had not recognized Scott until he *240 saw his face in the light of the officer's flashlight. Lane further testified that he had not heard Colvin's rifle fire and that he had not learned until the officers told him the next morning that the cause of death was a bullet wound in the back of the neck. According to the pathologist who performed the autopsy, the entrance wound was located "just below the hairline and just to the right of the midline"; the bullet lodged in the brain, indicating that it had "traveled to the left and upward"; and, assuming that the "extraneous debris" found "[i]n and around the entrance wound" was gun powder, the shot was fired at close range, "somewhere around two feet, as a maximum."
We review this case upon the theory employed by counsel and the court below. The motion for judgment alleged that the two defendants were "each inciting, encouraging, aiding and abetting the other, with the common intention and unlawful purpose" of injuring Scott and that "[i]n the execution of such common intention and purpose, one of the defendants wrongfully and unlawfully shot and killed Eugene Scott". The trial court instructed the jury that "[t]here is no evidence" that Lane killed Scott. Under an instruction offered by the plaintiff and amended by the trial court, the jurors were directed to find for the plaintiff if they believed that Colvin "intentionally shot the decedent" and that Lane "was present, aiding and abetting in such shooting". "Aiding and abetting" was defined as "encouraging or inciting the commission of the unlawful act by words, gestures, looks or signs, or in some manner offering aid in its commission." The plaintiff assigns no cross-error to the instructions as given, and, indicating no approval, we consider them the law of the case.
Under Code § 8.01-430, a trial court is empowered in a civil action to enter judgment non obstante veredicto "upon the ground that [the verdict] is contrary to the evidence, or without evidence to support it".
"[This power] can only be exercised where the verdict is plainly wrong or without credible evidence to support it.
If there is a conflict in the testimony on a material point, or if reasonable men may differ in their conclusions of fact to be drawn from the evidence, or if the conclusion is dependent on the weight to be given the testimony, the trial judge cannot substitute his conclusion for that of the jury merely because he would have voted for a different verdict if he had been on the jury. The weight of a jury's verdict, when there is credible evidence upon which it can be based, is not overborne by the trial judge's disapproval."
Commonwealth v. McNeely, 204 Va. 218, 222, 129 S.E.2d 687, 689-90 (1963).
Where the evidence fairly supports multiple inferences, a trial judge ruling on a motion to strike must adopt those inferences most favorable to the party whose evidence is challenged, even though he may believe different inferences are more probable. R. F. & P. Railroad v. Sutton, 218 Va. 636, 643, 238 S.E.2d 826, 830 (1977). By the same logic, when conflicting inferences have been resolved by a jury and those necessarily underlying the conclusion reflected in the verdict are reasonably deducible from the evidence, a trial judge should not set the verdict aside.
Considering the motions to strike and finding that the "inferences and conclusions from the evidence do differ", the trial court ruled that this was "a proper case for the jury." We agree with that finding and that ruling; we disagree with the subsequent holding that "Lane is liable to the plaintiff as a matter of law."
On brief, the plaintiff argues that the evidence raises inferences that Lane "initiated the armed assault during which Scott was killed"; that Lane's warning shot "triggered Colvin's armed pursuit of Scott", a pursuit in which Lane "actively participated"; and that "there is no reason why [Lane] aided Colvin regain possession and control of [Colvin's] rifle other than that Colvin should use it against the intruder". Even if the inferences the plaintiff draws justify a conclusion that Lane was, in the language of the jury instructions, "present, aiding and abetting [Colvin] in such shooting", *241 other inferences and a different conclusion are reasonably deducible from the evidence.
Specifically, we believe it is reasonable to infer that Lane's purpose in arming himself was not to initiate or incite an armed assault but to apprehend a stranger who had invaded his farm in the middle of the night and terrorized the family of his tenant; that Lane's warning shot, which he aimed into the air and not at Scott, was prompted by the same purpose; and that Lane's reason for intervening in the struggle was to rescue Colvin, who appeared to be in imminent peril, and to prevent Scott, who was attempting to seize Colvin's rifle, from using the weapon himself.
The plaintiff acknowledges that "there is no evidence that Lane gave verbal assent to the shooting." Indeed, it appears that there was no conversation whatever between Lane and Colvin from the time Scott fled from his car until he was killed. Nor do we find any evidence of "gestures, looks or signs" to compel a conclusion that Lane was "aiding and abetting" as defined in the jury instructions or that he shared the tortious intent alleged in the motion for judgment.
Going beyond the law of the case underlying the jury's verdict, the trial judge stated that the facts disclosed by the evidence, "coupled with the position of Lane as employer of Colvin indicates that Lane was a dominant factor in the whole episode." Pointing to that statement, the plaintiff contends on appeal that Lane was liable as a matter of law for Colvin's tort under the doctrine of respondeat superior. Such a theory of liability was never alleged in the motion for judgment, the trial judge refused the plaintiff's instruction based upon that theory, and the plaintiff assigned no cross-error to that refusal. Accordingly, we will not notice this argument on appeal. Rule 5:27.
Applying the law of the case, we are of opinion that the evidence and inferences reasonably deducible therefrom fairly support the conclusion reached by the first jury, and we hold that the trial court erred in setting their verdict aside. The judgment will be reversed, the first verdict will be reinstated, and final judgment for Lane will be entered here.
Reversed and final judgment.
NOTES
[*] The plaintiff was unable to serve Colvin with process, and Lane testified at trial that he did not know where Colvin was. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334557/ | 247 S.E.2d 430 (1978)
38 N.C. App. 209
STATE of North Carolina
v.
Bill SLATE and Romney Lee Carson.
No. 7817SC280.
Court of Appeals of North Carolina.
October 3, 1978.
*432 Atty. Gen. Rufus L. Edmisten by Associate Atty. R. W. Newsom, III, Raleigh, for the State.
Neaves, Everett & Peoples by Charles M. Neaves, Elkin, for defendants-appellants.
MITCHELL, Judge.
APPEAL OF BILL SLATE
The defendant, Bill Slate, assigns as error the trial court's admission into evidence of the extrajudicial statement of his codefendant Carson and the trial court's failure to instruct the jury that Carson's extrajudicial statement could only be considered against him and was not admitted as evidence against Slate. This assignment of error is meritorious.
In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court of the United States held that the extrajudicial confession of a defendant implicating his codefendant could not be admitted into evidence, where the defendant making the confession did not testify at their joint trial. The court held that to admit such evidence would constitute a denial of the codefendant's rights under the confrontation clause of the Sixth Amendment to the Constitution of the United States, which could not be remedied by a limiting instruction directing the jury to consider such evidence only against the confessing defendant. Here, however, the defendant whose extrajudicial confession was admitted testified in his own defense and denied making the statement. Further, he gave testimony during the joint trial favorable to his codefendant Slate. The defendant Slate could not have hoped for a more effective exercise of his right to confront and cross-examine this witness. Therefore, the extrajudicial confession of Carson implicating Slate was admissible at their joint trial. Nelson v. O'Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971).
Although the extrajudicial confession of Carson was admissible at the joint trial of the defendants, we hold it was admissible only as evidence against him and not as evidence against his codefendant Slate. After Carson took the stand and testified at the joint trial of the two defendants, the admission of his extrajudicial confession was no longer violative of the Sixth Amendment. Its admission against Slate, however, remained a violation of long established principles of law controlling in this jurisdiction. As to Slate, the extrajudicial statement of Carson was inadmissible hearsay. The extrajudicial statement of Carson did not become exceptionally admissible as corroborative evidence solely by virtue of the fact that Carson took the stand and testified. Instead of corroborating Carson's testimony, the testimony of Captain Scott as to Carson's extrajudicial statement tended to destroy his credibility and greatly reduce the weight of his testimony and was not admissible as corroborative evidence. State v. Lassiter, 191 N.C. 210, 131 S.E. 577 (1926). Although the extrajudicial statement of Carson tending to implicate Slate was admissible at their joint trial, it was admissible only as evidence against Carson. Therefore, the trial court erred in failing to instruct the jury that Carson's statement was admitted into evidence only against him and could not be considered against Slate. When two defendants are jointly tried, the extrajudicial confession of one may be received in evidence over the objection of the other only when the trial court instructs the jury that the confession is admitted as evidence against the defendant who made it but is not evidence and may not be considered by the jury in any way in determining the charges against his codefendant. State v. Lynch, 266 N.C. 584, *433 146 S.E.2d 677 (1966); State v. Bennett, 237 N.C. 749, 76 S.E.2d 42 (1953); 2 Stansbury's, N. C. Evidence, § 188 (Brandis Rev. 1973). Failure to give the required instruction will necessitate a new trial in Slate's case (76CR9012).
APPEAL OF ROMNEY LEE CARSON
The defendant, Romney Lee Carson, assigns as error that portion of the trial court's final instructions to the jury setting forth the elements of the offense of receiving stolen goods. The defendant contends that the trial court failed to properly instruct the jury that, before they could return a verdict of guilty of receiving stolen goods in violation of G.S. 14-71, they must find from the evidence that the goods were stolen by someone other than the accused. The defendant asserts that this constituted a failure to charge on an essential element of the offense of receiving stolen goods and requires he be granted a new trial.
When a trial court judge undertakes to define the law as required by G.S. 1-180, he must state it correctly, and failure to do so constitutes prejudicial error sufficient to warrant a new trial. The trial court must properly instruct the jury as to all essential elements of the offense charged. State v. Hairr, 244 N.C. 506, 94 S.E.2d 472 (1956). An essential element of the crime of receiving stolen goods in violation of G.S. 14-71 is the stealing of the goods by someone other than the accused. State v. Muse, 280 N.C. 31, 185 S.E.2d 214 (1971), cert. denied, 406 U.S. 974, 92 S.Ct. 2409, 32 L.Ed.2d 674 (1972). Therefore, failure to properly instruct the jury with regard to this element would constitute reversible error requiring a new trial.
Here the trial court first stated as an element of the offense of receiving stolen property the requirement "that the property was stolen" and failed to indicate that the property must have been stolen by someone other than the defendant. Later the trial court stated that the jury could convict if they found that "someone else had stolen them or that they were stolen." This statement would tend to indicate to the jury that they could convict either if the goods were stolen by the defendant or by someone else. Finally, the trial court properly stated that, before returning a verdict of guilty, the jury must find that the defendant knew or had reasonable grounds to believe that "someone else had stolen." No instruction was ever given the jury indicating it should ignore the first two incorrect statements as to this element of the offense.
Such conflicting instructions upon a material aspect of a case must be held to constitute prejudicial error, as the jury may have acted upon the incorrect portion of the instructions. State v. Parks, 290 N.C. 748, 228 S.E.2d 248 (1976). It must be assumed on appeal that, of two conflicting instructions, the jury was influenced by that portion of the charge which is incorrect. State v. Harris, 289 N.C. 275, 221 S.E.2d 343 (1976). It will not be supposed that the jury is able to distinguish between a correct and an incorrect charge. State v. Carver, 286 N.C. 179, 209 S.E.2d 785 (1974). Even though the trial court's instructions must be read in their entirety and are not reversible for inadvertent omissions or inconsequential misstatements, the instructions of the trial court in this case were so conflicting as to require that they be held prejudicial error necessitating a new trial of the case against Carson (76CR8903).
For errors previously discussed herein, both the defendant Bill Slate (76CR9012) and Romney Lee Carson (76CR8903) are entitled to new trials, and we order
New trials.
BROCK, C. J., and MARTIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334558/ | 247 S.E.2d 274 (1978)
38 N.C. App. 81
Ellen S. ELLIS (widow), Plaintiff-Appellee,
v.
Hilliard Ray ELLIS (single), Mary Elizabeth Ellis Rhodes and husband, Thomas Lawrence Rhodes, Bobby Richard Glosson and Richard Lawson Maguire, Defendants, and
Annie Belle Ellis Currie and husband, Carey L. Currie, Martha Dale Ellis Glosson, and Frances Mildred Ellis Maguire, Applicants-Appellants.
No. 7714SC950.
Court of Appeals of North Carolina.
September 19, 1978.
*276 Kenneth C. Titus, Durham, for applicants-intervenors appellants.
W. Y. Manson and Lucy D. Strickland, Durham, for plaintiff-appellee.
Felix B. Clayton, Durham, for defendants.
ERWIN, Judge.
The first question presented by this appeal is whether the trial court erred in denying applicant-appellants' motion to intervene. We find no error in the order entered by Judge Hobgood.
G.S. 1A-1, Rule 24, provides in part:
(a) Intervention of right.Upon timely application anyone shall be permitted to intervene in an action:
(1) When a statute confers an unconditional right to intervene; or
(2) When the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
(b) Permissive intervention.Upon timely application anyone may be permitted to intervene in an action.
(1) When a statute confers a conditional right to intervene; or
(2) When an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or State governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, such officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."
The applicant-intervenors moved under Rule 24 to intervene in this civil action. In their brief, they contend that they are entitled to intervene as a matter of right pursuant to Rule 24(a)(2) of the Rules of Civil Procedure. Rule 24(a)(2) requires three prerequisites to non-statutory intervention as a matter of right: (1) an interest relating to the property or transaction; (2) practical impairment of the protection of that interest; and (3) inadequate representation of that interest by existing parties.
Plaintiff in her action proposes to remove a cloud upon her title against some of her children and their spouses, who failed to execute a quitclaim deed to her for the homeplace, which plaintiff acquired by deed. The deed was executed by her as attorney-in-fact for her husband to her husband and herself as tenants by the entirety. The husband is now deceased, and plaintiff claims the entire tract as her sole property. The applicant-intervenors allege that "[p]laintiff claims title through a power of attorney, deed executed by the attorney in fact, and a quitclaim deed signed by intervenors." Applicant-intervenors propose to have their deed to the plaintiff for the real property in question set aside on three grounds:
*277 "1. The signatures of intervenors on the quitclaim deed were fraudulently induced through representations by the plaintiff that the deed was for the eleven acres of the property to be sold to a church, which plaintiff knew at the time to be untrue. . . .
2. The quitclaim deed transfer was without good and valid consideration.
3. The acknowledgment of the signatures by a notary public was improper as the deed was signed outside of the notary's presence and none of the intervenors acknowledged to the notary that the signature was his own."
To us, the intervenors have apparently conveyed their interest in the real property in question to the plaintiff. This being true, we hold that applicant-intervenors do not meet the requirements of Rule 24(a)(2). They do not have an interest in the subject matter of this action. The relief sought by the applicant-intervenors is to have their deed set aside. We concede that the deed relates to the same property in question, but it relates to a different transaction than those complained of by the plaintiff. See Bank v. Robertson, 25 N.C.App. 424, 213 S.E.2d 363 (1975).
Now we must scrutinize the trial court's use of its discretion in denying the applicant-intervenors' motion to intervene under Rule 24(b)(2), "Permissive Intervention." The Court's discretion in this regard is not reviewable in the absence of a showing of abuse. The trial court entered its order which reads in part as follows:
"AND IT FURTHER APPEARING TO THE COURT, after hearing arguments of all counsel, that the ends of justice would not be met by allowing the Motion to Intervene and that same should be denied.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the above said Motion to Intervene is not allowed and the same is hereby dismissed, this 26 day of August, 1977."
"With only minor exceptions, Federal Rule 24 and North Carolina Rule 24 are substantially the same. Where the phrase `statute of the United States' appears in the Federal Rule, the word `statute' is used in the North Carolina Rule." Shuford, N. C. Civil Practice and Procedure, § 24-1, p. 206.
The United States Court of Appeals, Fifth Circuit, held as follows in Weiser v. White, 505 F.2d 912, 917 (5th Cir. 1975), cert. denied, 421 U.S. 993, 95 S.Ct. 1998, 44 L.Ed.2d 482 (1975):
"Ordinarily, in the absence of an abuse of discretion, no appeal lies from an order denying leave to intervene where intervention is a permissive matter within the discretion of the court. United States v. California Co-op. Canneries, 279 U.S. 553, 556, 49 S.Ct. 423, 424, 73 L.Ed. 838. The permissive nature of such intervention necessarily implies that, if intervention is denied, the applicant is not legally bound or prejudiced by any judgment that might be entered in the case. He is at liberty to assert and protect his interest in some more appropriate proceeding. Having no adverse effect upon the applicant, the order denying intervention accordingly falls below the level of appealability.. . ."
We have not found any cases on point from this Court or our Supreme Court decided since the effective date of the North Carolina Rules of Civil Procedure; however, Strickland v. Hughes, 273 N.C. 481, 485, 160 S.E.2d 313, 316 (1968), (decided after our Rules were adopted but before their effective date) held: "It is ordinarily within the discretion of the court to permit proper parties to intervene. Childers v. Powell, 243 N.C. 711, 92 S.E.2d 65."
The record before us does not reveal that the trial judge abused his discretion. We note that the pre-trial order had been entered prior to the motion to intervene.
In summary, we hold that: (1) the applicant-intervenors were not entitled to intervene pursuant to Rule 24(a)(2) as a matter of right; (2) the trial court did not abuse its discretion in denying applicant-intervenors' permission to intervene pursuant to Rule 24(b)(2); and (3) better practice would require applicant-intervenors to specify *278 the section of Rule 24 they wished to proceed under.
In view of our holding above, we deem it unnecessary to consider applicant-intervenors' assignment of error Number 2. The orders appealed from are
Affirmed.
PARKER and CLARK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724972/ | 203 So. 2d 664 (1967)
Elsie JOHNSON, Petitioner,
v.
TOWN OF EATONVILLE, Respondent.
No. 1367.
District Court of Appeal of Florida. Fourth District.
November 1, 1967.
William A. Jacob, of Law Office, J. Russell Hornsby, Orlando, for petitioner.
John D. Haines, of Winderweedle, Haines & Ward, Winter Park, for respondent.
PER CURIAM.
Petitioner, Elsie Johnson, by writ of certiorari seeks review of a judgment of a circuit court affirming a judgment of the Municipal Court of the Town of Eatonville, Florida, respondent, which adjudged the petitioner guilty of disobeying a stop sign, disorderly conduct, resisting arrest and imposing a fine.
The petitioner contends (1) that the trial court did not have proper jurisdiction over the person of the petitioner to try her on the offenses, (2) that the offenses set forth in the warrant were not supported by a sworn affidavit, and (3) the warrant was invalid because of duplicity.
The petitioner has failed to favor us with a transcript of the proceedings the petitioner seeks to have reviewed. The petitioner has attached remnants of the transcript to her brief and has made them a part of the appendix. These sketchy remnants of the transcript are insufficient for this court to review the cause before us. When no transcript of the proceedings is presented or when remnants of a transcript are presented which do not contain essential portions of the proceedings pertaining to the issues upon which the petitioner seeks review the appellate court must assume that the trial court ruled correctly. See Sydney Paper Co. v. Gans, Fla.App. 1966, 193 So. 2d 41; *665 McClosky v. Martin, Fla. 1951, 56 So. 2d 916.
The petitioner has labeled certain documents and papers by various names which she desires to give them without any substantiation in the record as to the correctness of the label. It is the responsibility and the duty of the petitioner to provide the appellate court with a record sufficient to review the matter assigned as error. Gleim v. Gleim, Fla.App. 1965, 176 So. 2d 610; Belfield v. Lochner, Fla.App. 1964, 162 So. 2d 668; Cleeland v. Miami Lincoln-Mercury, Inc., Fla.App. 1964, 159 So. 2d 260. Petitioner has failed to supply a sufficient record.
Certiorari denied.
WALDEN, C.J., and CROSS, J., and WADDELL, THOMAS R., Jr., Associate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1724992/ | 203 So. 2d 676 (1967)
Eddie MITCHELL, Appellant,
v.
STATE of Florida, Appellee.
No. J-267.
District Court of Appeal of Florida. First District.
November 9, 1967.
*677 Eddie Mitchell, in pro. per.
Earl Faircloth, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
ON MOTION TO QUASH
SPECTOR, Judge.
The State has filed a motion to quash this appeal whereby appellant seeks reversal of the Circuit Court's order denying appellant's motion to vacate judgment and sentence filed by him pursuant to Criminal Procedure Rule One, F.S.A. Chapter 924, Appendix. The order appealed is grounded on the trial court's finding that the motion was successive and asserted grounds earlier decided upon adversely to this appellant by a prior motion to vacate. In its motion to quash, the State alleges that appellant had also filed a petition for writ of habeas corpus as an original proceeding in the Florida Supreme Court and a habeas corpus proceeding in the United States District Court of Florida. All of these proceedings by which appellant sought to be released were predicated on virtually the same grounds as is the instant motion to vacate. Inspection of such earlier pleadings shows that the trial judge correctly ruled the instant motion to be successive and without merit.
Appellant's brief in opposition to the State's motion to quash stresses the ground asserted in his postconviction motion predicated on the State's failure to comply with the provisions of Section 932.38, Florida Statutes, F.S.A., requiring notification to the parents of an unmarried minor of charges pending against him. However, that same ground was earlier asserted as the basis for postconviction relief by this appellant in a petition for writ of habeas corpus referred to above which was denied. Under the principles announced by the Court in Whitney v. State, 184 So. 2d 207 (Fla.App.3d 1966), cert. denied 192 So. 2d 490, that ground having earlier been decided adverse to the appellant cannot again be considered by this Court since the principles of res judicata prevent the same issues being raised in subsequent proceedings. See also this Court's recent opinion in Blunt v. State, 203 So. 2d 49, opinion filed October 12, 1967.
It is the Court's opinion that not only did the trial judge correctly enter the order appealed from, but also the record sustains the State's contention that this appeal is frivolous since the same contentions raised by appellant's second motion under Criminal Procedure Rule One have earlier been decided adversely to him in a prior Rule One proceeding and in two separate habeas corpus *678 proceedings before the State Supreme Court and the Federal District Court.
The motion to quash this appeal is granted and the same is dismissed.
WIGGINTON, C.J., and CARROLL, DONALD K., J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334574/ | 146 Ga. App. 845 (1978)
247 S.E.2d 528
VINES
v.
CITIZENS TRUST BANK et al.
55342.
Court of Appeals of Georgia.
Argued February 7, 1978.
Decided June 29, 1978.
Rehearing Denied July 28, 1978.
Parker, Parker & Poss, Carl W. Poss, Carl W. Poss, Sr., for appellant.
Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Roderick C. Dennehy, Jr., Hurt, Richardson, Garner, Todd & Cadenhead, J. Wayne Pierce, for appellees.
McMURRAY, Judge.
In early 1974 A. F. Vines purchased a new Cadillac automobile, obtaining a loan for $6,600 from Citizens Trust Bank. He executed a consumer motor vehicle note evidencing said indebtedness. A security title and security interest in the automobile was also granted to Citizens Trust.
Under the terms of the note Vines was to begin repaying the debt monthly, the first payment due on April 8, 1974, and the same amount due on the 8th day of each month thereafter for 35 consecutive months. Vines was often late with his payments and on several occasions issued checks to Citizens Trust which were returned for insufficient funds. His automobile was also repossessed on more than one occasion but upon his payment of the arrearage and a small late charge it was given back to him.
In September, 1975, when Vines again became behind in his payments, the bank wrote Vines that the note had been accelerated to maturity, was then due and owing by reason of his default. On September 10, 1975, the automobile was once again repossessed. Vines contends that Citizens Trust agreed to return possession of the automobile to him if he would bring the account current and pay late charges as it had done in the past, and when he brought in and tendered the agreed amount of money, however, it was refused, and Citizens Trust now *846 insisted on an amount that was twice the amount of the arrearage; that he was given time to come up with the additional money, but when he came to the bank to pay the additional amount he was informed that his automobile had been sold for the sum of $4,311.51.
Whereupon, Vines sued Citizens Trust Bank, Nationwide Vehicle Return, Inc., a corporation who allegedly picked up his Cadillac and removed it from his property, and two agents and employees of the said defendant bank, seeking damages for conversion of the automobile as well as certain personal property located in the automobile. By amendment he added several other servants, agents and employees of Citizens Trust Bank as defendants.
The defendants answered, generally denying the averments of the complaint. Nationwide filed a cross claim against Citizens Trust for indemnification and reimbursement on the ground that it had acted solely at the specific instructions of Citizens Trust. Citizens Trust then moved for summary judgment contending the automobile was repossessed pursuant to law after proper notice of its election to declare the note in default and to accelerate it to maturity, was repossessed without a breach of the peace and following repossession was properly disposed of in accordance with law. Further, it contends: Since there was no utilization of state judicial process Vines was not entitled to a hearing prior to repossession. There has been no unlawful repossession of his Cadillac or conversion of his personal property. Therefore, the defendant Citizens Trust, its president (Funderberg), and the manager of the auto loan department (Clement, vice president in charge of loans) are entitled to judgment; and since there is no material issue of fact in dispute it is likewise entitled to judgment against the defendant Nationwide Vehicle Return, Inc. with respect to all its allegations contained in its cross claim. By amendment to the motion, Wood, assistant cashier and an employee in the collection and recovery department, and Russell, chairman of the board, moved for summary judgment. Nationwide also moved for summary judgment. The motions were granted, although Citizens Trust's motion against Nationwide was held to *847 be moot. Plaintiff appeals. Held:
1. Vines acknowledged that self-help repossession had been ruled to be legal in Georgia and that under the terms of his agreement with Citizens Trust Bank in the event of default the bank is entitled to declare acceleration of the debt without notice to him and to utilize self-help repossession to recover the vehicle pledged as security on the debt. Vines contends that the bank has permitted and participated in a course of conduct with him of allowing repeated arrearages, late payments and return of the vehicle to him after repossession. The record of payments on the loan in question shows that penalties for late payments have been assessed against Vines approximately 10 times, that checks written by Vines have been returned for lack of sufficient funds four times, and that on one previous occasion the vehicle was repossessed but eventually returned to vines. Vines argues that the usual principles of law governing his relationship with the bank are inapplicable as the actions of the bank in permitting the arrearages, late payments and return of the vehicle after repossession have resulted in an estoppel against the bank from asserting its contractual and statutory rights until such time as notice is given Vines that the bank insists upon strict compliance with the terms of the original agreement, citing Pierce v. Leasing International, Inc., 142 Ga. App. 371, 373 (235 SE2d 752). Also see Code § 20-116; Verner v. McLarty, 213 Ga. 472, 475 (1) (99 SE2d 890); B-Lee's Sales Co. v. Shelton, 141 Ga. App. 870, 871 (234 SE2d 702).
The bank contends that it sent a letter to Vines prior to the time of the repossession of the vehicle which was sufficient to apprise Vines that the bank would in the future insist upon the terms of the original agreement.
Affidavits presented by the bank show that the letter was written, properly addressed to Vines, correct postage was attached, the letter was deposited in the United States mail and was never returned to the bank. The bank, relying upon Edmondson v. Air Service Co., 123 Ga. App. 263 (2) (180 SE2d 589); Sullivan Enterprises, Inc. v. Stockton, 118 Ga. App. 542 (164 SE2d 336); Canal Ins. Co. v. Tate, 111 Ga. App. 377, 384 (141 SE2d 851), contends *848 that a legal presumption arises that the letter was received by Vines. Vines testified in his deposition that he did not remember receiving the letter, thereby rebutting any legal presumption and creating an issue of fact.
Estoppel is usually an issue of fact to be decided by the jury. Hall v. Rogers, 225 Ga. 57, 58 (165 SE2d 829). Therefore, even if it were presumed, as the bank contends, that Vines received the letter, issues of fact would remain as to whether the letter, which was a form letter with Vines' name and address typed into blank spaces provided for that purposes, which notified Vines of acceleration to maturity of his debt, and which contained the sentence, "[t]his letter will serve as your notice that the Bank will exercise any and all rights and remedies available to it under the laws of this state and its agreement(s) with you," was sufficient notice to avoid any estoppel. Issues of fact remain as to whether the bank's conduct in repeatedly allowing arrearages, late payments and in one instance the return of the vehicle to Vines after repossession resulted in an estoppel against the bank to assert its original contractual and statutory rights against Vines.
2. If the jury finds that an estoppel arises from the bank's conduct, further issues exist in Vines' action against the bank as to whether Vines received the letter sent by the bank and whether the letter was sufficient notice that the bank would require strict compliance with the contractual agreement in the future.
3. The uncontroverted evidence shows that the individual defendants Funderberg, Russell and Wood did not direct nor participate in the acts which are the basis of plaintiff's complaint. Therefore, the trial court did not err in granting summary judgment in favor of these defendants. On the other hand, the evidence shows that the individual defendant Clement participated in the actions of which plaintiff complains by selling plaintiff's automobile to one Gordon. Therefore, the trial court erred in granting summary judgment in favor of the individual defendant Clement. See Howell v. Ayers, 129 Ga. App. 899, 901 (4) (202 SE2d 189); Rhodes v. Industrial Fin. Corp., 64 Ga. App. 549, 552 (13 SE2d 883).
4. When the reasonableness of a sale of repossessed *849 collateral is challenged the burden of showing that the disposition of collateral pursuant to Code Ann. § 109A-9-504 (Ga. L. 1962, pp. 156, 422) was commercially reasonable rests with the secured party. See Thurmond v. Elliott Fin. Co., 141 Ga. App. 574, 576 (234 SE2d 153); Granite Equipment Leasing Corp. v. Marine Development Corp., 139 Ga. App. 778 (230 SE2d 43). This burden may not be satisfied without establishing affirmatively that the "terms" of the sale were commercially reasonable. This includes a burden upon the secured party to show that the resale price was the fair and reasonable value of the collateral. See Granite Equipment Leasing Corp. v. Marine Development Corp., p. 779, supra. The record contains no evidence as to the fair and reasonable value of Vines' automobile. A material issue of fact remains as to whether the price realized upon the sale of plaintiff's automobile was fair and reasonable. Therefore, we cannot say as a matter of law the defendants have satisfied their burden of showing that the sale of Vines' automobile was commercially reasonable.
5. As stated above, material issues of fact remain; therefore, the trial court erred in granting summary judgment in favor of Citizens Trust Bank, Clement and Nationwide Vehicle Return, Inc.
Judgment affirmed in part and reversed in part. Quillian, P. J., and Webb, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263267/ | 27 F.Supp. 313 (1939)
BRINLEY
v.
LEWIS.
No. 111.
District Court, M. D. Pennsylvania.
May 1, 1939.
Scragg & Scragg, of Scranton, Pa., for plaintiff.
E. D. Siegrist and Clarke M. Seltzer, both of Lebanon, Pa., for defendant.
ALBERT L. WATSON, District Judge.
This is a motion by the defendant, under the provisions of Rule 12, subsections (e) and (f) of the New Rules of Civil Procedure, 28 U.S.C.A. following section 723c, for a more definite statement and to strike off part of the complaint. The motion consists of three requests for a more definite statement and a request to strike a paragraph from the complaint on the ground that it is redundant and immaterial.
The defendant urges that the plaintiff be required to furnish a more definite statement as to which of the injuries alleged are permanent; a more definite statement of the expenses for medicine, medical attendance, hospitalization, and nursing; and a more definite statement with regard to the claim of special damages by reason of injury to plaintiff's business.
During the course of the argument, counsel for the defendant stated that the information requested was not necessary for the purpose of answering the complaint. Counsel also stated that considerable investigation had been made of plaintiff's business, and that much information regarding that business was in the possession of the defendant. However, the court was convinced of the good faith of defendant in filing this motion and of his honest desire to have the information requested.
The pleading against which this motion is directed has been carefully considered by the court and it appears to be a most adequate statement of the cause of action. The plaintiff has stated, with admirable brevity and directness, a case of assault and battery. The location and nature of *314 the personal injuries resulting therefrom have been set forth in detail and, as special damage, the plaintiff has alleged that he is registrar and proprietor of a named business which has been injured by his absence and will continue to be so injured by reason of the permanent nature of some of his injuries. The plaintiff also alleges matters in aggravation of the assault. In the opinion of the court, this pleading is sufficient. There are no vague generalities nor ambiguous phrases which are objectionable, nor is it left in doubt as to what the plaintiff intends to prove at the trial.
Rule 8, subsections (a) and (e) require the complaint to be short and the allegations to be simple, concise, and direct. It is evident that the framers of these rules did not intend that compliance with Rule 8 should expose a plaintiff to a motion under Rule 12(e). Attention is called to Rules 33 to 37 inclusive, which provide for a simple and expeditious method of obtaining detailed information as to the cause of action and of limiting the issues to be tried. These rules, with the exception of Rules 34 and 35, do not require the delay of an application to the court for permission to demand the information desired. Furthermore, the information obtainable under these five rules is far more complete than that obtainable under the broadest construction of Rule 12(e). Therefore, I feel that motions under Rule 12(e) are properly presented only where the complaint is so vague or ambiguous or contains such broad generalizations that the defendant cannot frame an answer thereto or understand the nature and extent of the charges so as generally to prepare for trial.
The courts are making every effort to impress upon counsel the necessity for bringing cases before the court for trial at the earliest possible moment and to prevent as much as possible tactics of defendants in seeking, through delay, to prevent the plaintiff from recovering that which is due him. Therefore, since the extent to which discovery is available in pending cases has been greatly broadened and covers much the same ground as the old motion for a bill of particulars as well as much that did not come under such a motion, it is only proper that, where information is obtainable through discovery methods and in part obtainable through Rule 12(e), counsel should be compelled to use only the former method and thus avoid the delay which is necessarily incident to an application to the court under Rule 12(e) as well as the delay incident to the use of two different methods. This court is not alone in its attempt to limit the use of the motion authorized by Rule 12(e). Many cases may be cited in which the courts have taken a like position; among which cases are Southern Grocery Stores, Inc. v. Zoller Brewing Company, D.C. S. D. Iowa, 26 F. Supp. 858, filed February 4, 1939; Harry Fried v. Warner Brothers Circuit Management Corp. et al., D.C.E.D.Pa., 26 F.Supp. 603, filed January 25, 1939; American La France-Foamite Corporation v. American Oil Company, D.C., 25 F.Supp. 386.
However, it should be noted that it is not the intention of this court to hold that Rule 12(e) is never proper. There are some cases wherein a motion for a more definite statement or a bill of particulars is necessary to enable a party to understand the nature and extent of the charges against him and in such cases the court welcomes a motion which offers an opportunity to compel the disclosure necessary. But it must clearly appear not only that the moving party is entitled to the information requested on the authority of prior cases but also that the motion is made in good faith and not for the purpose of delay.
Returning to the motion now before the court, it was conceded at the argument by counsel for the defendant that the complaint is sufficiently definite to enable the defendant to frame his answer, and the sole objection was that it was not sufficiently definite to enable the defendant to prepare for trial. This objection is in my opinion without merit. The complaint is sufficiently definite for the defendant to prepare generally for trial, and if the defendant wishes to secure more detailed information as to how the plaintiff intends to prove his allegations, he must look to other provisions of the New Rules of Civil Procedure which provide for the obtaining of such details.
That portion of the motion which requests the courts to strike paragraph six from the statement of claim should be denied. In this paragraph it is alleged that the defendant accompanied the assault with the use of vile and abusive language. It is conceded that this language alone is not actionable under the present facts, but is in aggravation of the assault, which aggravation is alleged generally in another paragraph of the complaint. Rule 9(g) requires items of special damage to be stated specifically and plaintiff contends, with considerable *315 merit, that the paragraph in issue complies with this rule. The matter alleged cannot injure the defendant but will give him a more definite idea of the nature of the case to be presented.
Now, May 1, 1939. Defendant's motion for a more definite statement and to strike paragraph six from the complaint is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263269/ | 27 F.Supp. 599 (1939)
BEGGS
v.
UNITED STATES.
No. 42509.
Court of Claims.
May 29, 1939.
*600 *601 *602 *603 *604 *605 Caesar L. Aiello and G. Bowdoin Craighill, both of Washington, D. C. (Frederic D. McKenney, and John S. Flannery, both of Washington, D. C., and George Wharton Pepper, of Philadelphia, Pa., on the brief), for plaintiff.
Guy Patten, of Washington, D. C., and James W. Morris, Asst. Atty. Gen. (Robert N. Anderson and Fred K. Dyar, both of Washington, D. C., on the brief), for the United States.
Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
LITTLETON, Judge.
Section 403 (a) (3) of the Revenue Act of 1921, 42 Stat. 227, 279, in effect at the time of the decedent's death on May 29, 1924, provided that for the purpose of tax the value of the net estate should be determined by deducting from the value of the gross estate the amount of all bequests, legacies, devises, or transfers for exclusively public purposes, or to or for the use of any corporation organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes, or to a trustee or trustees exclusively for such purposes. The fourth item of decedent's will, the interpretation of which determines the question involved, was as follows: "I devise and direct that all the net proceeds from the sale of my estate as herein provided shall under the direction of my executor, with the advice of my said sister Gertrude *606 Farmer, be divided and distributed and given to such charities and worthy objects, as they, my executor and my sister, shall determine, remembering, however, the City of Fort Worth, in Texas, the City of Vancouver in British Columbia, Parker County in Texas, and England, places to which I have become attached. It is my intention to write to my said sister, indicating to her any special friends, charities, and worthy objects I may wish my executor with her advice to provide for, but all such provisions shall come out of my own estate and not from the estate herein devised to her. I desire my executor to pay particular and careful attention to the advice of my said sister in the distribution of my estate, and to relieve her of all business worries pertaining thereto."
The ninth item of the will was the same as the fourth except that it authorized the executor, with the advice of decedent's sister, to give away any of his property in kind "to any charity or for any purpose they may consider worthy."
Counsel for defendant contend that no part of the residuary estate of the decedent was deductible from the gross estate for the reason that the amount bequeathed by decedent to charities was not definite and certain or definitely ascertainable at the time of his death, and that since the decedent in his will did not direct the payment of any amount out of income, or set up any trust, there is no authority for the deduction of amounts by the executor distributed to charities out of income. In other words, the defendant's contention with respect to the estate and income tax is that the provisions of the will are insufficient to show that the decedent intended that his residuary estate should go to charitable uses. We cannot agree. When the will is interpreted, as it must be in the light of the intention of the testator as expressed in the will and as gathered from surrounding facts and circumstances, we think the decedent intended and sufficiently disclosed that intention in the directions to his executor and his sister that his residuary estate was being left and should go to charity and that this intention was adequately expressed in the fourth item of the will in language sufficiently clear to comply with the provisions of section 403 (a) (3) of the statute and to justify and require the deduction of the value of such residuary estate from the gross estate in determining the net estate subject to tax. The decedent made specific provision for his nephews, nieces, and sister, and no other specific bequest was made except that to charity and worthy objects in the fourth item of the will. It is stipulated and agreed that all the corpus of the residuary estate was distributed to tax-exempt charitable or educational institutions. We think it is clear that this distribution to charities from the corpus and income of the estate was made pursuant to the terms of the will. The gift by decedent to charities is quite specific and we think it is clear that he directed that all his net residuary estate should be distributed and given to them. It is not important that the will did not specifically name the charities to which the estate should go, or the amount to which each charity should be entitled.
The defendant seeks to justify its contention that there was no definite and certain bequest to charity by pointing to the use by the decedent of the words "worthy objects" and "special friends" in the fourth item of the will. But it is clear, we think, that these words were used by the decedent in connection with and in the same sense in which he directed that the net proceeds of his estate be divided and given to "charities." The correctness of this interpretation is established by the fact that the decedent prior to his death did write a letter to his sister in England in which he indicated only certain "charitable objects" for which he desired her and the executor to make provision. In these circumstances it seems clear enough that the gifts to charity were pursuant to the terms of the will and not the result of the discretion of the executor as contended by the defendant. The executor's discretion and authority are derived from the terms of the will and we do not find in the will involved any grant of discretionary authority to the executor to distribute any part of the net proceeds of the estate to other than charities. The executor and the decedent's sister, who were in a position best to know and who did know the intentions and purposes of the decedent, carried out his intentions and purposes by distributing the entire residuary estate to charitable and educational institutions. The provisions of the taxing statutes exempting from tax gifts and bequests to charity are begotten from motives of public policy and are not to be narrowly construed. Y. M. C. A. v. Davis, 264 U.S. 47, 44 S.Ct. 291, 68 L.Ed. 558; United States *607 v. Provident Trust Co., 291 U.S. 272, 285, 54 S.Ct. 389, 78 L.Ed. 793; Old Colony Trust Co. v. Commissioner of Internal Revenue, 301 U.S. 379, 57 S.Ct. 813, 81 L.Ed. 1169; Brown v. Commissioner of Internal Revenue, 3 Cir., 50 F.2d 842; St. Louis Union Trust Company v. Burnet, 8 Cir., 59 F.2d 922; Helvering v. Bliss, 293 U.S. 144, 55 S.Ct. 17, 79 L.Ed. 246, 95 A.L.R. 207. A gift for a charitable use, which is sufficiently definite and certain as to purpose, is not void for uncertainty as to beneficiaries, where the power to select the beneficiary is given expressly or impliedly to the trustee or to other persons. Speer v. Colbert, 200 U.S. 130, 26 S.Ct. 201, 50 L. Ed. 403; Mississippi Valley Trust Co. v. Commissioner, 8 Cir., 72 F.2d 197. Inasmuch as the estate here involved went to charity under the authority of and pursuant to the terms of the will and not as a result of the absolute discretion of the executor, the value thereof was deductible from the gross estate and the estate is entitled to recover the additional estate tax of $109,577.74 assessed and collected by the defendant.
In view of the foregoing conclusion that the value of the residuary estate was deductible from the gross estate as a bequest to charity, the estate was entitled to a deduction from gross income for the years 1927 to 1931, inclusive, of the income therefrom which, likewise, was distributed under the terms of the will to charities. Although the fourth item of the will did not specifically mention income from the residuary estate during administration and distribution, this was not necessary to the right of the executor under section 219 (b) (1) of the Revenue Act of 1926, 44 Stat. 32, to deduct such income for income tax purposes. Section 219 (b) (1) is as follows: "There shall be allowed as a deduction (in lieu of the deduction authorized by paragraph (10) of subdivision (a) of section 214) any part of the gross income, without limitation, which pursuant to the terms of the will or deed creating the trust, is during the taxable year paid or permanently set aside for the purposes and in the manner specified in paragraph (10) of subdivision (a) of section 214, or is to be used exclusively for religious, charitable, scientific, literary, or educational purposes, or for the prevention of cruelty to children or animals, or for the establishment, acquisition, maintenance or operation of a public cemetery not operated for profit. * * *"
The income derived by the executor during administration became a part of the corpus of the residuary estate, the net proceeds of which we have held were by the will bequeathed to charity and so distributed. As such income was received it was by the terms of the will permanently set aside and destined for charitable uses. Such income was clearly deductible. In Appeal of Slocum et al., 6 B.T.A. 36, the United States Board of Tax Appeals held: "We think it was the intent and purpose of Congress that income of an estate which, in following out the provision of a will, could be shown to be certainly destined for uses specified in paragraph (11) of subdivision (a) [charitable uses, etc.] of section 214 should be allowed as a deduction in computing the net income of the estate, * * *."
This decision was affirmed in Slocum et al. v. Bowers, D.C., 15 F.2d 400, 403, in which the court said that "The statute should be read, if possible, in such a way as to carry out this policy and not to make the result turn on accidental circumstances or legal technicalities." Affirmed 2 Cir., 20 F.2d 350. See, also, Estate of Hepburn v. Commissioner, 8 B.T.A. 833.
It is stipulated that if, as a matter of law, plaintiff is entitled to recover, the overpayments of income tax and interest are $1,175.32 for 1927, $2,078.98 for 1928, $5,604.47 for 1929, $6,741.57 for 1930, and $3,574.89 for 1931, totaling $19,175.23. Judgment will therefore be entered in favor of the executor for $128,752.97 with interest as provided by law. It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334588/ | 271 S.C. 346 (1978)
247 S.E.2d 346
Ruby LAYNE, Independent Executrix of the Estate of Howard Layne, Deceased, Respondent,
v.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, (AFL-CIO), LOCAL NO. 382, Appellant.
20758
Supreme Court of South Carolina.
August 31, 1978.
*347 Larry L. Eubanks of Eubanks & Walden, Winston-Salem, N.C., for appellant.
Stephen T. Savitz and Julian H. Gignilliat, Columbia, and Daryll N. Love, J. Roy Weathersby and Anthony L. Cochran, Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for respondent.
*348 August 31, 1978.
RHODES, Justice:
Prior to his death, the respondent's decedent (the plaintiff) brought the present action seeking actual and punitive damages from the defendant unions for what is alleged to be a "malicious, willful and wanton violation" of the South Carolina Right to Work Act, S.C. Code § 41-7-10 et seq. (1976).[1] From an order of the lower court overruling its demurrer to the complaint, the defendant appeals contending that: (1) the complaint fails to state a cause of action; (2) even if a cause of action is stated, the action does not survive the death of the plaintiff; and (3), the courts of this state do not have jurisdiction over the subject matter of the action because of Federal preemption. We affirm the lower court.
The following allegations taken from the complaint, constitute the basis for the claimed cause of action in this case: Plaintiff was a member of Defendant International Union for over thirty-five years and paid dues and contributions to the Defendant International during the entire time he was a member with the expectation of drawing a pension upon his retirement. On or about June, 1974, Defendants expelled Plaintiff from membership because he was working on a construction project in Florence, South Carolina, with employees who were not members of Defendants International Union and/or Defendants Local Union and who were performing electrical work. Such action by Defendants was in violation of South Carolina's Right-to-Work Act, supra, and caused Plaintiff to suffer substantial damage in that he *349 lost the benefit of monies paid to Defendants over thirty five years.
The complaint further alleges that, as a result of the defendant's violation of the Right to Work Act, the plaintiff "has suffered damage" (inferentially the loss of the expectancy of drawing retirement benefits) and "has suffered mental anguish and pain and suffering."
I
Under its first exception, the appellant contends that the complaint fails to state a cause of action because the conduct complained of does not constitute a violation of the Right to Work Act. We disagree and hold that the complaint states an action sounding in tort.
In determining whether a cause of action is stated, we are required to construe the complaint liberally in favor of the pleader. Turner v. ABC Jalousie Co. of N. C., 251 S.C. 92, 160 S.E. (2d) 528 (1968). In passing upon a demurrer, the Court is limited to consideration of the pleading under attack, and all of the factual allegations thereof that are properly pleaded are deemed admitted. Crowley v. Bob Jones University, 268 S.C. 492, 234 S.E. (2d) 879 (1977). It is settled that a cause of action sounding in tort may arise from conduct violative of South Carolina's Right to Work Act. See Gregory Electric Co. v. Custodis Construction Co., 312 F. Supp. 300 (D.S.C. 1970); Kimbrell v. Jolog Sportswear, Inc., 239 S.C. 415, 123 S.E. (2d) 524 (1962); Brabham v. Miller Electric Co., 237 S.C. 540, 118 S.E. (2d) 167 (1961). Thus, in the present case, if the facts alleged, together with the inferences reasonably deducible therefrom, state conduct which is violative of the Right to Work Act, the complaint must be sustained. See, Turner, supra.
Construed liberally in favor of the pleader, the essence of the complaint is that the defendant has interfered or has attempted to interfere with the free *350 exercise of the plaintiff's right to work and engage in a lawful vocation. In other words, by its power to terminate union membership and defeat the plaintiff's expectancy of retirement benefits, the union has sought by coercion to control the plaintiff's employment.
We hold that the attempt to coerce the plaintiff from engaging in the particular employment by means of threatening his expected retirement benefits constitutes a tortious violation of the Right to Work Act.
Code § 41-7-70 provides, in part, that:
It shall be unlawful for any person, acting alone or in concert with one or more persons:
(1) By force, intimidation, violence or threats thereof, or violent or insulting language, directed against the person or property, or any member of the family of any person (a) to interfere, or attempt to interfere, with such person in the exercise of his right to work, to pursue or engage in, any lawful vocation or business activity, to enter or leave any place of his employment, or to receive, ship or deliver materials, goods or services not prohibited by law or (b) to compel or attempt to compel any person to join, or support, or refrain from joining or supporting any labor organization....
Applying this section to the facts alleged in the complaint, it can reasonably be said that the union's actions constituted coercion and intimidation directed against the plaintiff and his property which was designed to effect compulsory support of the union and accomplish union control of the plaintiff's employment.
The appellant contends that, assuming arguendo that the union's actions could give rise to a cause of action under § 41-7-70, the plaintiff has failed to allege facts sufficient to bring the action within the prohibitions of that section. One of the examples pointed out by the appellant is that under § 41-7-70 it is "persons" who are prohibited from engaging *351 in the proscribed conduct and, as the appellant asserts, the union is not a "person". The appellant concedes that unions do act through persons but correctly contends that there is no allegation that any person was acting in a representative or agency capacity for the union so as to render it liable under the principles of respondent superior.
While the complaint suffers from a lack of artful pleading, we do not view such lack as fatal. It is inferable from the facts pled that the conduct complained of is attributable to the appellant which unquestionably acted through a person. However, even if the allegations of the complaint did not bring the action within the explicit language of § 41-7-70, a cause of action would still lie. As this Court pointed out in Brabham v. Miller Electric Co., supra, "[W]here legislative intent to declare an act unlawful is apparent from consideration of the statute, it matters not that the prohibition of the act is not declared in specific language, for an act that violates the general policy and spirit of the statute is no less within its condemnation than one that is in literal conflict with its terms," 237 S.C. at 546, 118 S.E. (2d) at 170. The Brabham Court further stated that one of the evils to which the legislative intent and remedial purpose of the statute is directed is union control of employment. As we have pointed out above, based upon the facts alleged in the complaint, one of the objectives of the union's conduct was to control the employment of the plaintiff. In addition, Code § 41-7-10 states that it is "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." It was precisely on account of the plaintiff's membership that he was not free to choose his own employment with the free exercise of his right to work being abridged by the union.
*352 II
As stated previously, the plaintiff died shortly after this action was commenced. The appellant asserts that, even if a cause of action is stated, it does not survive the death of the plaintiff.
South Carolina Code § 15-5-90 provides that causes of action for and in respect to "any and all injuries to the person or to personal property shall survive" to the personal representative of the deceased person. Although there are certain exceptions,[2] it is the general rule that any cause of action which could have been brought by the deceased in his lifetime survives to his representative under the Survival Act, Gowan v. Thomas, 237 S.C. 223, 116 S.E. (2d) 761 (1960). The appellant cites no authority or precedent which would weigh against application of the general rule in this case. The only cases cited in support of its contention Layne v. International Brotherhood of Elec. Workers (AFL-CIO), 418 F. Supp. 964 (D.S.C. 1976) and Barnes Coal Corp. v. Retail Coal Merchants Assn., 128 F. (2d) 645 (4th Cir.1942) involved the survival of statutory causes of action under federal law and are irrelevant to the survivability of the state action under review. This exception is overruled.
III
Under its remaining exception, the appellant asserts that state court jurisdiction over the action is pre-empted by Title 1 of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) codified at 29 U.S.C. § 411 et seq. In order to protect union members from union abuse of power, the LMRDA provides a "bill of rights" for members which defines their right to participate in union affairs and protects them from arbitrary discipline by the union, see, *353 29 U.S.C. § 411. Jurisdiction to remedy any infringement of these federal statutory rights is vested in the federal district courts, 29 U.S.C. § 412.
The appellant asserts that jurisdiction over the subject matter of this action lies with the federal courts because the subject of the complaint falls within the scope of the provision protecting union members from arbitrary discipline. That provision states:
No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.
29 U.S.C. § 411 (a)(5). According to appellant, the subject of the present action is whether the plaintiff was wrongfully expelled from membership in the union in violation of the above provision and does not involve his right to work under the Right to Work Act. We disagree with the appellant that the LMRDA pre-empts state court jurisdiction. The fallacy in the appellant's position is its assumption that the LMRDA was intended to regulate all aspects of the member-union relationship.
Prior to the enactment of the LMRDA, "the protection of union members in their rights as members from arbitrary conduct by unions and union officers [had] not been undertaken by federal law, and indeed the *354 assertion of any such power [had] been expressly denied."[3]International Ass'n of Machinists v. Gonzales, 356 U.S. 617, 620, 78 S.Ct. 923, 925, 2 L.Ed. (2d) 1018 (1958). With the LMRDA, Congress undertook to correct certain abuses of power by unions by directly addressing specific aspects of the union-member relationship. However, federal regulation in this area was not intended to be complete or exclusive. This is made clear by the LMRDA itself for as 29 U.S.C. § 413 states: "Nothing contained in this title [29 U.S.C. §§ 411-415] shall limit the rights and remedies of any member of a labor organization under any State or Federal law or before any court or other tribunal, or under the constitution and bylaws of any labor organization." Thus, the State court remedy is not supplanted by the LMRDA as the appellant asserts.
This result is not changed by the fact that, as appellant points out, the plaintiff has also brought an action in Federal court claiming a violation of 29 U.S.C. § 411(a)(5). See, Layne v. International Brotherhood of Elec. Workers (AFL-CIO), 418 F. Supp. 964 (D.S.C. 1976). The Federal action is based upon the plaintiff's allegation that he was expelled without being afforded the "full and fair hearing" mandated by the LMRDA and has no relevance to the right being asserted in the present action. As 29 U.S.C. § 413 makes clear, the existence of a Federal cause of action is not intended to limit the plaintiff's rights and remedies under State law. The State action is not pre-empted.
Affirmed.
LEWIS, C.J., and LITTLEJOHN, NESS and GREGORY, JJ., concur.
NOTES
[1] It appears that this action on appeal is erroneously captioned in that, although International Brotherhood of Electrical Workers, (AFI-CIO), Local No. 382 is the only appellant before this Court, the International Brotherhood of Electrical Workers, (AFL-CIO) appears to remain a party to the suit although not listed in the caption. This conclusion is based on a most fragmentary record. In further explanation of the caption, the term "Independent Executrix" (which term is foreign to this jurisdiction) is apparently copied from the language contained in the appointment of the fiduciary in the State of Texas. This terminology has no bearing on any issue in this case.
[2] "[T]his Court has held that actions for malicious prosecution, slander, and fraud and deceit do not survive [under the Survival Act]." Brewer v. Graydon, 233 S.C. 124, 103 S.E. (2d) 767, 769 (1958).
[3] Although federal law did not directly purport to regulate the relationship between unions and union members prior to passage of the LMRDA, some protection for union members was provided by the National Labor Relations Act of 1947 which made it an unfair labor practice for a union to restrain or coerce an employee in the exercise of his right to engage in or refrain from engaging in concerted activities, see, 29 U.S.C. § 158(b)(1). However, because the proviso in 29 U.S.C. § 158(b)(1) that "this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein", the union conduct proscribed by this section is that designed to bring about employer discrimination against an employee with the result that regulation of purely internal union affairs is outside the competence of the National Labor Relations Board which administers the NLRA. Gonzales, supra; Amalgamated Ass'n of st., E.R. & M.C. EMP. v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed. (2d) 473 (1971). It is because purely internal union affairs are involved that the present action is not pre-empted by the NLRA. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334589/ | 146 Ga. App. 665 (1978)
247 S.E.2d 128
PULLEN
v.
THE STATE.
55802.
Court of Appeals of Georgia.
Argued May 3, 1978.
Decided June 15, 1978.
Rehearing Denied July 13, 1978.
Richard R. Kirby, Charles E. Muskett, for appellant.
Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellee.
QUILLIAN, Presiding Judge.
The defendant was charged with the offense of murder. He appeals his conviction of manslaughter. Held:
1. Defendant's enumerations of error 1, 2, 4 and 5 are interrelated and will be discussed together. After defendant had been advised of his Miranda rights he gave a statement to the police which was taped. The tape was *666 lost and defense counsel made such statements when questioning a police officer as: "...isn't [the tape] the key to this case as to what was said, and you are telling this jury here that you fellows lost the tape ... so if the tape could be [found] the jury could sit there and listen to determine the accuracy of the statement which was made to you.... You said [the defendant told you] ... I don't know which hand grabbed the gun ... a few minutes ago [you testified the defendant] told you that the deceased used his right hand to grab the gun ... Naturally the tapes would resolve the whole issue, wouldn't it?" Shortly thereafter, the district attorney announced the missing tapes had been found. He referred to this statement as a "confession." Defense counsel moved for a mistrial. The court denied the motion and instructed the jury that the characterization of the statement as a confession was improper, they should disregard the statement of the district attorney, and the jury would decide "what the statements do and do not import, and whether or not they amount to an incriminatory admission."
Defendant contends the court erred in failing to grant a mistrial, and a new trial, and in instructing the court as he did. Where counsel makes an improper statement in the hearing of the jury it is the duty of the court to rebuke counsel and instruct the jury so as to remove the improper impression, or in his discretion he may order a mistrial. Code § 81-1009; London v. State, 142 Ga. App. 426 (1) (236 SE2d 158).
Our Supreme Court has held that where the trial court acts immediately to correctly charge the jury to disregard such statement and takes such action as in his judgment will prevent harm to an accused, a new trial will not be granted unless it is clear that his action failed to eliminate from the consideration of the jury such improper remark. Spell v. State, 225 Ga. 705, 709 (171 SE2d 285). Where such instructions by the court to the jury "was full," it amounted to a rebuke of counsel. Id. Counts v. Moorehead, 232 Ga. 220 (1) (206 SE2d 40). The court correctly instructed the jury to disregard and asked them to determine whether the defendant's statement amounted to an incriminatory admission. See Clanton v. State, 137 Ga. App. 376 (1) (224 SE2d 58). The instruction *667 was full and correct. In any event, we can find no prejudice to a defendant when a court instructs the jury that it is their responsibility to determine whether his statement was incriminating. Further, it is highly probable this alleged error did not contribute to the judgment. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). These enumerations of error are without merit.
2. Enumeration of Error 9 avers error in the denial of defendant's motion for new trial. Enumeration 10 also alleges that the trial court erred in failing to strike 15 subparagraphs of the court's order in denying the motion for new trial. A review of the evidence discloses ample support for the verdict. Thus, the general grounds are without merit.
The special grounds enumerated in defendant's motion before the trial court are substantially the same as the first eight grounds of error enumerated to this court. The trial court's order stated the basis for its denial of the motion. Defendant contends the bases stated are "untrue, scandalous and are not contained in the trial transcript."
Some of the subparagraphs referred to deal with remarks of the defense counsel in opening and closing statements. Those statements were not transcribed. The trial judge signed the first order and made several changes in a subsequent order but did not fully comply with counsel's motion. Defense counsel has offered naught but argument. "In the absence of a transcript, we must assume the evidence supports the judgment of the court." Butler v. Butler, 238 Ga. 198 (232 SE2d 246); Robinson v. Robinson, 239 Ga. 323 (2) (236 SE2d 660). As to those bases predicated upon the transcript, we find there is support for the conclusions and opinions of the court stated in the order. We find no error in a trial court stating the reason for a ruling in his order and counsel has not directed our attention to citation of authority so holding. His reliance upon Patterson v. State, 124 Ga. 408 (52 SE 534) and Ga. Power Co. v. Puckett, 181 Ga. 386 (182 SE 384), is misplaced. Both cases deal with introduction of new evidence by counsel during argument before a jury. Those holdings would not prevent a trial court from stating the reason for his ruling in court, nor in his order when ruling on a motion for a new trial. Insofar as *668 defendant contends such facts were not in the record, we cannot resolve issues at the appellate level, but "[w]here the correctness of the record is called into question the matter is to be resolved by the trial court." Patterson v. State, 233 Ga. 724, 731 (213 SE2d 612). The trial court ruled against the defendant. These enumerations are without merit.
3. The defendant alleges that the trial court erred in failing to charge the jury on "accident" and "involuntary manslaughter" and in charging the jury that the homicide was justifiable under the law when in fact the defendant defended "on the ground of accident and self-defense in that he did not intend to shoot or hurt anyone."
It is the duty of the court to charge the jury as to every material, substantial issue in the case, when it is supported by the evidence. McNeill v. State, 135 Ga. App. 876, 878 (219 SE2d 613); Franklin v. State, 136 Ga. App. 47 (2) (220 SE2d 60). 1 Reid's Branson Instructions to Juries 171, § 53 (1). "It is the province of the court to determine whether there is foundation in the evidence for any particular instruction..." 1 Blashfield's Instructions to Juries 191, § 86. Absent abuse of discretion, this court will not interfere with the trial court's finding.
The instructions of the court should cover contentions made and argued before the jury if they are supported by the evidence. 1 Reid's Branson Instructions to Juries 172, § 53 (1). However, where defendant's theories of his defense are made in the opening and closing argument of defendant's counsel and are not recorded we must rely upon the trial judge and will assume he performed his duty properly and the evidence supported the giving of the instruction. In the past this court has referred to defendant's requests for instructions (State v. Frazier, 141 Ga. App. 501, 502 (233 SE2d 868)) to resolve enumerations of error on appeal. Thus, we can refer to the record as well as the transcript when resolving issues regarding enumerations of error relating to instructions of the court.
In the instant record the trial court's order contains the reasons for his denial of a new trial. One of his findings was that the defense counsel informed the jury in opening *669 argument that the defendant was "justified in killing the deceased based upon his contention of self-defense," and defense counsel's "closing argument related exclusively to justification through self-defense ..."
An accused should have the jury instructed on his principal theory of defense when it is supported by the evidence. And it is error for the court to fail to instruct on the sole theory of defense, even without a request. Pollard v. State, 236 Ga. 587 (224 SE2d 420). However, as argued on appeal, "accident" was not defendant's sole or even his principal theory of defense. It was justification through self-defense.
There is no evidence that the defendant requested a charge on either "accident" or "involuntary manslaughter." The failure to charge on the lesser offense of involuntary manslaughter, without a written request, is not error. State v. Stonaker, 236 Ga. 1 (222 SE2d 354).
It is evident that defense counsel followed a trial tactic in pursuing a theory of defense that was not successful. On appeal he now pursues another theory "accident." A defendant will not be permitted to claim error when he selects a specific defense theory to pursue at trial to the exclusion of other possible defenses which may or may not be supported by the evidence, and after casting his lot with that theory of defense and not requesting instructions on other theories which find some support in the evidence, complain for the first time at the appellate level that the trial court erred in failing to instruct on a possible alternative theory although the court instructed on defendant's principal theory of defense. Cf. Wyatt v. State, 206 Ga. 613 (3) (57 SE2d 914). Accord, Driver v. State, 194 Ga. 561 (1) (22 SE2d 83); Hilburn v. Hilburn, 210 Ga. 497 (5) (81 SE2d 1). Although we can appreciate defense counsel's predicament of arguing to a jury for an acquittal on the theory of self-defense, i.e., "such threat or force is necessary to defend himself" (CCG § 26-902 (a); Code Ann. § 26-902 (a) (Ga. L. 1968, pp. 1249, 1272)) while presenting his second theory of "accident" if the jury found self-defense was not necessary, we will not relieve him of his responsibility for choosing one theory of defense over a second incompatible theory of defense. This is a reasoned trial tactic and amounts to counsel-induced *670 error for "[a] defendant will not be allowed to induce an asserted error, sit silently by hoping for an acquittal, and obtain a new trial when that tactic fails." Jackson v. State, 234 Ga. 549, 553 (216 SE2d 834). If defendant desires instructions on possible defenses ancillary to his principal theory, he should request it in writing to the court. "[W]hen a criminal defendant fails to request a charge, or fails to object to the trial court's omission to charge, such failure to request or object has been decisive against him." Thomas v. State, 234 Ga. 615, 618 (216 SE2d 859). We find no error as to Enumerations 3, 6, 7 and 8.
4. The trial court did not err in recharging the jury in accordance with its request to repeat "the definition that you gave ...concerning murder and the degrees of manslaughter ..." (Emphasis supplied.) When he had finished the court asked: "Now, is there any other principle that you wish to hear? The Foreman: That's all that was requested, sir." There was no objection by counsel and no request for further instructions. If counsel desired further elaboration he should have requested it. Thomas v. State, 234 Ga. 615, supra. Failure to instruct on the lesser offense of manslaughter, without request of the jury or the defendant, was not error. State v. Stonaker, 236 Ga. 1, supra; Tennon v. State, 235 Ga. 594 (3) (220 SE2d 914).
5. The defendant contends it was error for the trial judge to include in his order of March 7, 1978, which amended the previous order of the court on the motion for new trial, the statement that "accident is not an issue in that defendant testified that he killed the deceased in self-defense and not accidentally."
There is some evidence that could be interpreted as a basis for accidental firing of the weapon. The defendant testified that deceased grabbed "[m]y hand, like this, the gun (No further description for the record) ... I went back ... And, then that's when the shot was fired real fast." However, defense counsel also asked the defendant "Why was it necessary to shoot twice, do you know? A. It happened so fast, you know. I really didn't intend to kill anybody, you know." It was defendant's counsel who raised the theory that "it was necessary to shoot twice." Necessity to shoot is compatible with the theory of *671 self-defense. Necessity is the antithesis of accident. The trial court's finding is supported by the evidence of record. We find no prejudice to defendant from the trial court stating his reason for denial of defendant's motion for new trial.
Judgment affirmed. Webb and McMurray, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334596/ | 219 Va. 214. (1978)
JERRY DEAN STILLWELL
v.
COMMONWEALTH OF VIRGINIA; JERRY DEAN LOWERY v. COMMONWEALTH OF VIRGINIA; JACKIE WADE PHILLIPS v. COMMONWEALTH OF VIRGINIA
Record Nos. 771528, 771527, 771526.
Supreme Court of Virginia.
August 31, 1978.
Emmitt F. Yeary; Mary Lynn Tate (Yeary, Lohman & Tate P.C., on brief for appellant). (Records 771528; 771527; 771526)
Thomas D. Bagwell, Assistant Attorney General (Marshall Coleman, Attorney General, on brief) for appellee. (Records 771528; 771527; 771526)
Present: All the Justices.
After guilt is established of sale of marijuana under Code | 18.2-248, defendant, to mitigate punishment, has burden under Code || 18.2-248 and 18.2-263 to show by a preponderance of the evidence an accommodation sale; standard of proof inferred from Code | 18.2-248.
In these three cases, tried separately by the same Court without a Jury, each defendant was convicted of selling marijuana to an undercover police officer. Defendants did not deny the sales but presented evidence that the sales were for accommodation. On appeal they contend that Code || 18.2-248 and 18.2-263 are unconstitutional as shifting the burden of proof of the charge from the Commonwealth to the defendants and that, with the burden shifted, no standard of proof is stated in the statutes.
1. In enacting the Drug Control Act, the General Assembly recognized, except in certain authorized instances, there could be no explanation for the sale or possession of drugs and thus, except in these authorized cases, made it unlawful for any person to manufacture, sell, give, distribute or possess with intent to manufacture, sell, give or distribute a controlled substance, including marijuana. There was a rational and reasonable connection and relation between the fact of sale and the intent to profit. There was thus a rebuttable presumption against an accommodation sale or distribution.
2. Recognizing that in some instances sales or distributions of drugs could be for accommodation, the General Assembly provided in Code | 18.2-248 for mitigation of punishment for those less culpable and provided in Code | 18.2-263 for relieving the Commonwealth of the impossible burden of negativing every exception, excuse, proviso or exemption claimed by defendant.
3. Code | 18.2-248(a) creates a single offense, the unlawful manufacture, sale, transfer or distribution, or possession with the intent to manufacture, sell, give, distribute or possess certain controlled drugs. The provisions of the section which deal with the reduced penalty upon proof of accommodation operate only to mitigate the degree of criminality or punishment rather than to create two different substantive offenses in the section.
4. Once the guilt of the defendant is established under Code | 18.2-248, which is independent of the profit-accommodation distinctin, a second determination of proper punishment is to be made. Code || 18.2-248 and 18.2-263 place the burden of proving an accommodation distribution (and the right to the less penalty) on the defendant. Only after guilt is established does the statute raise a presumption against an accommodation distribution to the extent that this is relevant to the proper degree of punishment.
5. The Due Process Clause does not prohibit the use of presumptions or inferences as procedural devices to shift to the accused the burden of producing some evidence contesting the otherwise presumed or inferred fact. Mullaney Wilbur, 421 U.S. 684 (1975); Patterson New York, 432 U.S. 197 (1977) discussed.
6. The Commonwealth's testimony established that the substance sold to the undercover officer was marijuana and defendants admitted the sale. There were no other critical issues involved, the crime being complete and its commission established. Only the punishment to be inflicted could be lessened by showing a mitigating circumstance and it is at this stage that the burden of going forward with the evidence shifted to the defendant. Absent a showing of accommodation by the Commonwealth, it was incumbent upon defendants to produce evidence indicating they were accommadation sellers or distributors, Mullaney v. Wilbur, 421 U.S. 684 (1975) distinguished.
7. The defendant is not required to establish accommodation beyond a reasonable doubt but only by a preponderance of the evidence. The presumption that the distribution was not for accommodation prevails until opposing evidence, either from the Commonwealth or the defendant, is sufficient to convince the judge that a jury could reasonably find that defendant was an accommodation distributor. This is the obvious standard to be applied for overcoming a presumption in favor of the Commonwealth in prosecutions under Code | 18.2-248 and it is unnecessary for the standard to be spelled out in the statute.
Appeals from judgments of the Circuit Court of Washington County. Hon. J. Aubrey Matthews, judge presiding (Records Nos. 771528; 771527; 771526)
Affirmed (Record 771528).
Affirmed (Record 771527).
Affirmed (Record 771526).
HARRISON
HARRISON, J., delivered the opinion of the Court.
Jerry Dean Stillwell, Jerry Dean Lowery and Jackie Wade Phillips contend that Virginia Code Sections 18.2-248 and 18.2-263 unconstitutionally shift the burden of proof of the offenses with which they have been charged away from the Commonwealth and onto the defendants. They also assert that the statutes are unconstitutionally vague in that they fail to state any standard of proof.
Stillwell, Lowery and Phillips were tried in the lower court, without a jury, but not as codefendants. Stillwell was convicted of three separate offenses of selling marijuana in January, 1976, to an undercover police officer. Lowery and Phillips were each convicted of two separate offenses of selling marijuana to an undercover police officer in March, 1976. The same officers testified in all cases, stating that the respective defendants each sold them marijuana. The sales were not denied. All three defendants presented evidence that the sales were made for accommodation. The trial court found each guilty as charged and sentenced each to a term in the state penitentiary. Their appeals to this Court have been consolidated to consider the common issue involved.
The sections of the Virginia Code challenged by the appellants are || 18.2-248 and 18.2-263, which, at the time of the offenses, read, in part as follows:
| 18.2-248. Penalties for manufacture, sale, gift, distribution or possession of a controlled drug. - Except as authorized in The Drug Control Act, chapter 15.1 (| 54-524.1 et seq.) of Title 54 of this Code, it shall be unlawful for any person to manufacture, sell, give, distribute or possess with intent to manufacture, sell, give or distribute a controlled substance.
"(a) Any person who violates this section with respect to a controlled substance classified in Schedules I, II or III shall upon conviction be imprisoned for not less than five nor more than forty years and fined not more than twenty-five thousand dollars;... and provided further, that if such person prove that he gave, distributed or possessed with intent to give or distribute marijuana or a controlled substance classified in Schedule III only as an accommodation to another individual and not with intent to profit thereby nor to induce the recipient or intended recipient of the controlled substance to use or become addicted to or dependent upon such controlled substance, he shall be guilty of a Class I misdemeanor."
* * *
| 18.2-263. Unnecessary to negative exception, etc.; burden of proof of exception, ect. - In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of this article or of The Drug Control Act (| 54-524.1 et seq.), it shall not be necessary to negative any exception, excuse, proviso, or exemption contained in this article or in The Drug Control Act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be upon the defendant....""
The predecessor to Code | 18.2-248 was Code | 54-524.101:1, enacted by the General Assembly in 1972 (replacing Code | 54-524.101). See 1972 Acts, c. 798. In 1973, Code | 54-524.101:1, as it related to marijuana and SchEdule III substances, was amended to insert therein the language "if such person prove", and to lower the maximum sentence for an accommodation sale of marijuana to twelve months and a $1,000 fine. See 1973 Acts, c. 479. In 1975, the section number was changed from 54-524.101:1 to the current 18.2-248, but there were otherwise no substantive changes in the statute as it related to the distribution of marijuana, 1975 Acts, chs. 14, 15, and 589. [1]
The contention of the defendants is that a sale of marijuana as an accommodation is a lesser included offense of a sale of marijuana for profit. The defendants argue that this lesser included offense of accommodation, by virtue of the provisions of Code || 18.2-248 and 18.2-263, applies to them if they "prove" the sale was an accommodation sale; that due process of law dictates that no burden of proof shall be placed on a defendant to prove any element of the offense; and that the criminal statutes under which they were charged must be construed strictly.
Continuing, defendants argue that when a defendant, charged with making a sale or distribution of marijuana, takes the stand and testifies that the sale or distribution was made as an accommodation, then, by virtue of the statutory provisions, the burden immediately shifts to the defendant to negate an intent to profit or to induce use, addition or dependency. They say that such a burden is expressly prohibited by Mullaney Wilbur, 421 U.S. 684 (1975). Further, defendants contend that not only does the burden to show accommodation shift to a defendant but also that the statute delineates no "standard of proof" by which the evidence they are required to produce may be measured, i.e., whether by a preponderance of the evidence, beyond a reasonable doubt, or by clear and convincing evidence. They contend the statute is unconstitutionally vague and poses a great danger to due process of law.
The Commonwealth's position is that Code | 18.2-248 established a two-stage process for the trial of controlled drug sale and distribution cases, the first being a determination of guilt, and the second being a determination of punishment, and that the extent of punishment dependends on aggravating or mitigating factors.
In its enactment of the Drug Control Act the General Assembly recognized that, except in very rare and most unusual cases, there can be no lawful possession, sale or distribution of drugs by anyone, particularly of those drugs classified in Schedules I, II and III, and listed in Code || 54-524.84:4, -84:6, -84:8. With few exceptions, enumerated by statute, no one can lawfully manufacture, possess, sell or distribute such drugs. The manufacture of drugs is strictly controlled and regulated by the state. The possession of drugs is confined to a small group of professionals who are required to dispense the drugs under restricted and controlled conditions. By and large, it can be said that the lawful possession of drugs is restricted to licensed manufacturers, licensed pharmacists, and to individuals who have possession as a result of a prescription given by an authorized physician.
The General Assembly recognized that seldom, if ever, except in these authorized instances, could there by any explanation for the sale or possession of drugs. It concluded that the sale, possession and distribution of drugs, which in some places had reached epidemic proportions, was being carried on as a commercial enterprise and for a profit. The legislature therefore, with few authorized exceptions, made it unlawful for any person to manufacture, sell, give, distribute or possess with intent to manufacture, sell, give or distribute a controlled substance. And it defined marijuana as a controlled substance. It was a logical and reasonable assumption that a person who committed any of these acts was engaged in a commercial venture and for profit. Marijuana is not traded in the legitimate market place. It is an unlawful drug for which there is a large demand, and in its trafficking huge profits are reputedly made. There was therefore a rational and reasonable connection and relation between the fact of sale or distribution and the conclusion that it was with intent to profit - hence the rebuttable presumption against an accommodation sale or distribution.
However, the General Assembly was cognizant of the fact that in some instances a sale or distribution of a drug would be made, not by a dealer in drugs, a pusher or one who was normally engaged in the drug traffic, but by an individual citizen who was motivated by a desire to accommodate a friend, without any intent to profit or to induce or to encourage the use of drugs. Therefore, Code | 18.2-248, involved here, provides for the mitigation of punishment for those who are less culpable. And Code | 18.2-263 takes note of the fact that a defendant is the person with the greatest knowledge and easiest access to evidence to show that his sale or distribution was one of accommodation and not a commercial transaction, and therefore relieves the Commonwealth of what would amount to an impossible burden of affirmatively negating every exception, excuse, proviso or exemption claimed by a defendant.
In Walker Commonwealth, 212 Va. 289, 183 S.E.2d 739 (1971), the defendant was convicted by a jury of selling heroin. He did not testify and introduced no evidence in his own behalf. The trial court gave an instruction, pursuant to then Code | 54-524.108 (now | 18.2-263), that the defendant had the burden of proving that his possession, sale or dispensing of the narcotic drug was lawful as an exemption to the Uniform Narcotics Drug Act. We found no evidence that any drug was involved other than heroin, and the defendant made no claim that it was legal, or that he came into possession of it in a legal manner. We held that there was no exception, excuse, proviso or exemption involved in the case to be negated by the Commonwealth, and therefore no occasion for any resort to the statute, or for the court to give the instruction. We made it clear that the defendant "was under no burden to prove anything. He could rely upon his plea of not guilty".
Jefferson Commonwealth, 214 Va. 432, 201 S.E.2d 749 (1974), involved a charge of distributing marijuana in violation of Code | 54-524.101:1. We found that there was no evidence to justify an instruction that the defendant distributed marijuana for profit and that there was evidence to support an accommodation instruction denied the defendant. The offense in Jefferson occurred in August, 1972, and we noted that "Code | 54-524.101:1, as it read at the time of Jefferson's alleged violation, provided for two separate offenses", and that "We find no statutory presumption that any distribution is for profit or to induce use, addiction or dependence." 214 Va. at 434-35, 201 S.E.2d at 751.
The first case we considered which arose following the 1973 amendment of Code | 54-524.101:1 was Brown Commonwealth, 215 Va. 753, 213 S.E.2d 764 (1975). There we held that the court correctly instructed the jury that it could make a finding of accommodation distribution. However, we did not agree that as a matter of law the Commonwealth's evidence showed accommodation distribution. Brown conceded that, under the statute as amended, had no evidence of accommodation distribution been introduced either by the Commonwealth or by defendant, the giving of the instruction he challenged would have been proper. And the Commonwealth conceded that, the language of the amended statute to the contrary notwithstanding, evidence adduced by the Commonwealth which tended to rebut the presumption against accommodation distribution was as effective as if it had been presented by Brown. We concluded, however, that "these concession [were] not dispositive where there is evidence as to the purpose of the distribution that is susceptible of different interpretations". 215 Va. at 754, 213 S.E.2d at 765. In Brown we found that: "The 1973 amendment to the statute supplied the rebuttable presumption against accommodation distribution which we found lacking in Jefferson Commonwealth...." 215 Va. at 754, 213 S.E.2d at 765.
In Gardner Commonwealth, 217 Va. 5, 225 S.E.2d 354 (1976), we reaffirmed our holding in Brown that Code | 54-524.101:1, as amended, supplies a rebuttable presumption against an accommodation distribution. We reversed the decision of the court below, finding that the court erred in refusing to grant an instruction which would have permitted the jury to find the defendant guilty of an accommodation distribution. We said that Gardner's testimony, supported in material respects by the testimony of the principal witness for the Commonwealth, was sufficient to negate any inference that Gardner intended to induce the persons to whom he gave drugs to use, or become addicted to, or dependent on the drugs. We found that the legislature had established two clearly defined gradations of controlled drug distribution offenses and that "Gardner was entitled to have this alternative finding made available to the jury." 217 Va. at 8, 225 S.E.2d at 356.
The defendants contend that | 18.2-248(a) creates two distinct offenses involving the sale of marijuana: (1) the distribution, sale, manufacture (or possession with the intent to distribute, sell or manufacture), of marijuana with the intent to profit, and (2) the transfer of marijuana as an accommodation to another individual with no intent to profit. According to the appellants, the first offense is punishable as a felony and requires proof that the defendant possessed the intent to profit, whereas the second offense is treated only as a misdemeanor.
While there are dicta in our opinions in Jefferson, supra, and Brown, supra, that could lead to a contrary interpretation, | 18.2-248(a), in our view, creates only a single offense, that being the unlawful manufacture, sale, transfer or distribution, or possession with the intent to manufacture, sell, give, distribute or possess certain controlled drugs. The provisions of | 18.2-248(a), which deal with the reduced penalty contingent upon proof of an accommodation gift, distribution or possession of marijuana operate only to mitigate the degree of criminality or punishment, rather than to create two different substantive offenses, as the defendants contend.
That | 18.2-248 and its predecessors created only a single offense (the illegal transfer of controlled drugs), while providing for mitigation of punishment in certain accommodation cases, was alluded to in Wood Commonwealth, 214 Va. 97, 197 S.E.2d 200, appeal dismissed, 414 U.S. 1035 (1973), which was decided prior to Jefferson and Brown. In Wood we recognized that the 1972 and 1973 amendments to former | 54-524.101:1 "reduced the penalty which might be imposed upon an accommodation distributor of marijuana to not more than twelve months in jail and a fine of not more than one thousand dollars".... [Emphasis added.] 214 Va. at 100, 197 S.E.2d at 203. In Gardner Commonwealth, supra, we recognized that the legislative intent behind the accommodation portion of the statute was to establish "two clearly defined gradations of controlled drug distribution offenses" [Emphasis added.], rather than two separate offenses. 217 Va. at 8, 225 S.E.2d at 356.
The statutory scheme behind Code | 18.2-248 provides that once the guilt of the defendant has been established (a determination completely independent of the profit-accommodation distinction), a second determination of the proper punishment is to be made. This statute and | 18.2-263 place the burden of proving the existence of an accommodation distribution (and the right to the lesser penalty) to the trier of fact on the shoulders of the defendant. In other words, the statute contains a presumption against an accommodation distribution to the extent that it is relevant to the determination of the proper degree of punishment, but only after guilt has been established.
The defendants rely strongly upon Mullaney Wilbur, supra, and argue that this decision sets forth the principle that a state may not shift the burden of proof to the defendant on any fact that is necessary to establish the offense charged. Defendant say that Code | 18.2-248 impermissibly places on a defendant the burden to prove that he was an accommodation seller instead of a seller for profit. We disagree with defendants' construction of Mullaney and its applicability to the cases under review. We refer to our decisions in Hodge Commonwealth, 217 Va. 338, 228 S.E.2d 692 (1976), and Warlitner Commonwealth, 217 Va. 348, 228 S.E.2d 698 (1976), cert. denied, 430 U.S. 957 (1977), for our analysis of Mullaney and its impact in Virginia. We recognized that "any rule of state law which has the ultimate effect of shifting the burden of persuasion to the accused upon this critical issue in constitutionally infirm". 217 Va. at 341, 228 S.E.2d at 695. However, we further said in Hodge: "But neither the Due Process Clause nor Mullaney prohibits the use of presumptions or inferences as procedural devices to shift to the accused the burden of producing some evidence contesting the otherwise presumed or inferred fact...." 217 Va. at 341, 228 S.E.2d at 695.
In Mullaney, supra, at 702-03, n. 31, the Court said that certain presumptions and inferences on behalf of the prosecution are permissible under certain guidelines and that: "These procedural devices require (in the case of a presumption) or permit (in the case of an inference) the trier of fact to conclude that the prosecution has met its burden of proof with respect to the presumed or inferred fact by having satisfactorily established other facts. Thus, in effect they require the defendant to present some evidence contesting the otherwise presumed or inferred fact. Since they shift the production burden to the defendant, these devices must satisfy certain due process requirements."
"In each of these cases, however, the ultimate burden of persuasion by proof beyond a reasonable doubt remained on the prosecution." [Citations omitted.]
Mullaney was clarified in Patterson New York, 432 U.S. 197 (1977), where the Court said: "The is some language in Mullaney that has been understood as perhaps construing the Due Process Clause to require the prosecution to prove beyond a reasonable doubt any fact affecting 'the degree of criminal culpability.' It is said that such a rule would deprive legislatures of any discretion whatsoever in allocating the burden of proof, the practical effect of which might be to undermine legislative reform of our criminal justice system. Carried to its logical extreme, such a reading of Mullaney might also, for example, discourage Congress from enacting pending legislation to change the felony-murder rule by permitting the accused to prove by a prepnderance of the evidence the affirmative defense that the homicide committed was neither a necessary not a reasonably foreseeable consequence of the underlying felony. The Court did not intend Mullaney to have such far-reaching effect." [Emphasis added, citations omitted.] 432 U.S. at 214-215, n. 15.
The Court in Patterson also recognized that the responsibility of dealing with the problem of crime rested to a greater degree on states than on the federal government, and said: "[It] is normally 'within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,' and its decision in this regard is not subject to proscription under the Due Process Clause unless 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." [Citations omitted.] 432 U.S. at 201-02.
In Patterson the Court declined "to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused". 432 U.S. at 210. [2]
In Mullaney the Court held the Maine murder statute unconstitutional because it "affirmatively shifted the burden of proof to the defendant" upon "the critical fact in dispute" - the presence or absence of malice - thus increasing "the likelihood of an erroneous murder conviction". 421 U.S. at 701. In the instant cases the critical fact in dispute was whether the defendants did in fact sell marijuana. The statute, Code | 18.2-248, declares marijuana to be an unlawful drug and classifies it as a controlled substance. The testimony of the Commonwealth established that the substance sold by the defendants to the undercover police officers was marijuana. The defendants admitted the sale. There were no other critical issues involved. The crime was complete and its commission had been established, regardless of the motive or intent of the seller. Only the punishment to be inflicted could be lessened by a showing of a mitigating circumstance, and it is at this stage that the burden of going forward with the production of some evidence contesting the presumed fact shifted to the defendant. Absent a showing of accommodation by the evidence of the Commonwealth, it was then incumbent upon the defendants to produce evidence indicating that they were accommodation sellers or distributors. Mullaney Wilbur, supra, at 701-02, n. 28, Hodge Commonwealth, supra, 217 Va. at 342, 228 S.E.2d at 696.
A defendant, charged with an unlawful sale of drugs, who defends on the ground that he distributed the drugs for accommodation only, is not required to establish such accommodation beyond a reasonable doubt, but only by a preponderance of the evidence. [3] He is required to produce some evidence which satisfies the trier of the facts that his distribution was for accommodation. The presumption created by the statute retains its effect until opposing evidence (whether from the Commonwealth or the defendant) is sufficient to make a case for the jury, that is, to convince the judge that a jury could reasonably find that the defendant was an accommodation distributor. We believe this to be the obvious standard to be applied for overcoming the statutory presumption that operated in favor of the Commonwealth in cases prosecuted under Code | 18.2-248, and that it was unnecessary for the standard to be spelled out in the statute.
We would finally note that both this Court and the Supreme Court have previously considered the precise issue involved in these appeals. In the case of Commonwealth of Virginia Lewis Jasper Thompson, the defendant challenged in the trial court the constitutionality of Code | 54-524.101:1 (now | 18.2-248), claiming that the accommodation defense permitted by the statute placed an unconstitutional burden of proof upon him. He relied specifically upon the reasoning of Mullaney Wilbur, supra. Thompson was convicted and petitioned this Court for a writ of error, which we denied on August 26, 1976. Thompson Commonwealth, 217 Va. cxxxix (1976). In his petition for writ of error Thompson asserted his claim that Code | 54-524.101:1 was unconstitutional for the reasons urged upon the lower court, again relying upon Mullaney Wilbur, supra. Thompson advanced the same arguments made to the Virginia courts in his petition for appeal to the Supreme Court of the United States, which petition was dismissed on January 17, 1977, "for want of a substantial federal question". Thompson Virginia, appeal dismissed, mem. dec., 429 U.S. 1057 (1977). [4]
In the cases under review, the evidence was in conflict as to whether the sales made by the defendants were for profit, as the Commonwealth contended, or as accommodation, as the defendants maintained. A jury trial was waived in each case, and the trial judge was the trier of fact. There was no occasion for the granting of instructions. However, it is obvious that the court concluded from the evidence that the sales and distribution of marijuana were not made by the defendants for accommodation and therefore fixed punishment accordingly. There is credible evidence in the record to sustain its findings, and we cannot say that its judgments are plainly wrong.
Accordingly, finding no constitutional infirmity in the statutes under attack, we will affirm the judgments of the lower court.
Affirmed.
NOTES
[1] | 18.2-248 has been amended twice since the time of the offenses involved in this appeal. 1976 Acts, c. 614; 1977, c. 409. The only change in the above quoted section has been the deletion of all references to Schedule III drugs in | 18.2-248(a).
[2] In this opinion we interpret | 18.2-248 as giving rise to a presumption against accommodation distribution. In Patterson the Supreme Court characterized the provision in the challenged statute which allowed for a mitigation of punishment upon proof of "extreme emotional isturbance" by the defendant as an "affirmative defense", with the burden of proof resting on the defendant. The Attorney General in his brief characterizes the accommodation distribution provision in | 18.2-248 as an affirmative defense. Since both an affirmative defense and the legal presumption contained in | 18.2-248 require the defendant to establish the mitigating factor by a preponderance of the evidence, the distinction here is largely semantic. On the similarity of affirmative defenses and statutory presumptions in criminal cases, see McCormick's Handbook of the Law of Evidence | 346 (2nd ed. 1972).
[3] See generally C. Friend, The Law of Evidence in Virginia | 96 (1977); M. Marshall, J. Fitzhugh and J. Helvin, The Law of Evidence in Virginia and West Virginia || 207, 213 (1954); Uniform Rules of Evidence (1974), Rule 303; 30 Am. Jur.2d Evidence | 1176; 31A C.J.S. Evidence | 117. In the past we have also referred to this standard with the language "prove to the satisfaction of the jury". Wessells Commonwealth, 164 Va. 664, 180 S.E. 419 (1935); Lamb Commonwealth, 141 Va. 481, 126 S.E. 3 (1925).
[4] For the effect of a denial of a petition for writ of error see Saunders Reynolds, 214 Va. 697, 204 S.E.2d 421 (1974). For the effect of a dismissal of a petrition for appeal by the Supreme Court for want of a substantial federal question, see Mandel Bradley, 432 U.S. 173 (1977); Hicks Miranda, 422 U.S. 332 (1975); Hogge Johnson, 526 F.2d 833 (4th Cir. 1975). For a discussion of the precedential effect of summary affirmances by the Supreme Court, such as the one in Thompson, see Note, The Precedential Effect of Summary Affirmances and Dismissals for Want of a Substantial Federal Question by the Supreme Court after Hicks v. Miranda and Mandel v. Bradley, 64 Va. L. Rev. 117 (1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334598/ | 247 S.E.2d 902 (1978)
295 N.C. 636
STATE of North Carolina
v.
Stephen Karl SILHAN.
No. 30.
Supreme Court of North Carolina.
October 17, 1978.
*904 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Joan H. Byers, Raleigh, for the State.
Public Defender Mary Ann Tally, Fayetteville, for defendant.
COPELAND, Justice.
We have reviewed the State's contention that Judge Clark erred in suppressing from evidence the defendant's oral statements made to Detectives Conerly and Byrd on 14 October 1977. We conclude that the judge was correct in allowing the defendant's motion.
The United States Supreme Court laid down the guidelines for what constitutes waiver of the rights to counsel and to remain silent during in-custody interrogation in the landmark decision of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is clear that a defendant does not waive the right to an attorney if he merely fails to request one on his own initiative. Id. at 470, 86 S.Ct. at 1626, 16 L.Ed.2d at 721. Similarly, the Court stated:
"Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, 77 (1962), quoted in 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724.
On numerous occasions this Court has interpreted and applied the dictates of Miranda. In State v. Blackmon, 280 N.C. 42, 185 S.E.2d 123 (1971), the defendant was given his full Miranda warnings, he understood his right to counsel, and he did not request an attorney. We held that "[t]his, however, is not sufficient to make the defendant's in-custody statements admissible in evidence." Id. at 48, 185 S.E.2d at 127. Last term we followed the Blackmon decision in State v. Butler, 295 N.C. 250, 244 S.E.2d 410 (1978), and held that a defendant's waiver of counsel must be "specifically made." In other words, there must be some positive indication by the defendant that he does not wish to have an attorney present during the questioning.
In this case the officers asked whether defendant wanted "any individual or person present." Defendant's negative response to this question cannot be deemed a positive and specific waiver of counsel under the circumstances here disclosed. The detectives did not ask the defendant to sign a waiver form before interrogation began. They waited until after "the mule was out of the stable," and the defendant had already made incriminating statements. Furthermore, the defendant crossed out the word "not" in the waiver form so that he signed a paper stating: "I do want a lawyer present." This act is strong evidence negating any waiver of counsel. Thus, we find that defendant did not make an effective waiver of his rights to remain silent and to have an attorney present during the questioning.
*905 The State appealed this case pursuant to G.S. 15A-979(c), which provides:
"An order by the superior court granting a motion to suppress prior to trial is appealable to the appellate division of the General Court of Justice prior to trial upon certificate by the prosecutor to the judge who granted the motion that the appeal is not taken for the purpose of delay and that the evidence is essential to the case." [Emphasis added.]
We note that this section does not specify whether an appeal lies to the Court of Appeals or to the Supreme Court. General Statute 7A-27(a), however, stipulates that there is an appeal of right to the Supreme Court from a superior court judgment imposing a sentence of death or life imprisonment. When these two statutes are considered together, we determine that it is proper to appeal directly to this Court if the punishment for the charge(s) is either death or life imprisonment.
For the reasons set out above, the order of CLARK, J., is in all respects
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334634/ | 271 S.C. 381 (1978)
247 S.E.2d 448
Mallory D. BEAVER, Appellant,
v.
The STATE of South Carolina, Respondent.
20765
Supreme Court of South Carolina.
September 13, 1978.
*382 Harry C. Wilson, Jr., of Nash, Chappell & Wilson, Sumter, for appellant.
Atty. Gen. Daniel R. McLeod and Asst. Attys. Gen. Emmet H. Clair and Katherine W. Hill, Columbia, and Sol. R. Kirk McLeod, Sumter, for respondent.
September 13, 1978.
RHODES, Justice:
The appellant pled guilty to assault with intent to ravish and was sentenced to 15 years imprisonment. He subsequently filed an application for post-conviction relief in which he sought to withdraw his plea on the ground that it was involuntarily entered. The lower court denied this application. We reverse.
At the hearing below, the appellant produced evidence in support of his contention that his guilty plea was induced by a statement of the trial judge.[1] The appellant's trial counsel[2] testified that, after an overnight recess in the trial of the case, the presiding judge informed him in chambers that the appellant was going to be convicted and, if he (the appellant) chose to proceed with the trial, he (the trial judge) would impose a forty year sentence the maximum for assault with intent to ravish.[3] According to the testimony of trial counsel, the judge then told him he had "better go back and talk to [his] client and get him to plead guilty." This information *383 was relayed to the appellant who within the hour entered a guilty plea [4] and received a sentence of 15 years.
The State did not attempt to controvert the appellant's evidence but took the position that the trial judge's statement did not amount to coercion and did not render the guilty plea involuntary. The post-conviction hearing judge agreed with the State and, by order dated July 22, 1977, denied the appellant's application for relief. On December 29, 1977, this Court rendered its opinion in State v. Cross, S.C. 240 S.E. (2d) 514. That case is squarely on point with the present one and dictates reversal of the lower court.
In Cross, this Court held that a guilty plea was involuntarily entered when it was induced by a statement from the trial judge that, if the defendant went forward with the trial and was convicted, he would receive a prison term, whereas if he pled guilty, he would be fined but not imprisoned. In allowing the defendant to withdraw his plea, we stated:
While we acquiesce in the tendency of the courts to allow plea bargaining we are of the opinion that the judge should not initiate or influence the agreement, nor be a party to the negotiations. A plea induced by the influence of the judge cannot be said to have been voluntarily entered. The solicitor is the adversary of the defendant and his counsel. The negotiations should be between the adversaries. The judge is not the adversary of either. An agreement reached between the solicitor and his adversary can never be more that a recommendation. The judge must remain in a position of complete neutrality such that he may, in the last analysis, exercise freedom of sentencing judgment based on all of the facts. 240 S.E. (2d) at 516-7 (emphasis added).
We are mindful that if issues of fact have been decided adversely to an applicant for post-conviction relief, the Supreme Court is limited in its review to determining whether *384 there was evidence to sustain such finding of fact. McCall v. State, 258 S.C. 463, 189 S.E. (2d) 6 (1972). However, we are controlled in the present case by Cross which holds as a matter of law that a defendant, who is placed in the identical position as appellant, is under such coercion as to render his guilty plea involuntary. The following excerpt from Cross clearly states this holding:
We sustain the exception, reverse and remand. We agree with the defendant that he was placed in a position of being unduly coerced as a matter of law, inasmuch as he had no choice but to enter guilty pleas in order to avoid an assured prison sentence in the event of conviction. 240 S.E. (2d) at 516.
The facts of Cross differ in no material respect from the undisputed facts in the present case. The appellant in the present case was placed in the same position as the appellant in Cross in that it was clearly implied that the trial judge would be more severe in his sentence if he should continue his trial. It is also to be noted that in Cross, as in the present case, the defendant was asked and affirmatively answered questions indicating a free and voluntary plea. In view of the fact that we have held in Cross that the placing of a defendant in such a position as here indicated constitutes undue coercion which renders his guilty plea involuntary as a matter of law, the action of the lower court must be reversed.
The State argues that Cross should not be given retroactive application. We specifically stated in Cross that our decision was based on "what is constitutionally required", 240 S.E. (2d) at 516. While we recognize that newly adopted constitutional rulings need not necessarily be given retroactive application, see, e.g., Halliday v. U.S., 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed. (2d) 16 (1969), Cross did not involve a new constitutional rule. In Cross, we simply applied the prevailing constitutional "voluntariness" standard to a given fact situation and held that under such a set of facts, a guilty plea was not voluntary. *385 In view of the fact that Cross merely involved the application of preexisting constitutional principles as embodied in numerous state and federal decisions, we feel it would be inappropriate to only apply it prospectively.
We remand for the purpose of allowing the appellant to withdraw his guilty plea.
Reversed and remanded.
LEWIS, C.J., and LITTLEJOHN, NESS and GREGORY, JJ., concur.
NOTES
[1] In his application, the appellant also asserted two other grounds for relief. One ground was abandoned and the other need not be considered in view of our disposition of this case.
[2] The appellant is represented by different counsel in the present proceeding.
[3] See S.C. Code § 16-3-640 (1976).
[4] The usual questions were asked and answered indicating the plea was voluntary. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334637/ | 247 S.E.2d 11 (1978)
37 N.C. App. 718
WILLOW MOUNTAIN CORPORATION, a North Carolina Corporation
v.
Robert L. PARKER.
No. 7729SC654.
Court of Appeals of North Carolina.
August 29, 1978.
Certiorari Denied November 3, 1978.
*12 Redden, Redden & Redden by Monroe M. Redden and Monroe M. Redden, Jr., Hendersonville, for plaintiff-appellee.
Prince, Youngblood, Massagee & Creekman by James E. Creekman and Whitmire & Whitmire by Robert L. Whitmire, Jr., Hendersonville, for defendant-appellant.
Certiorari Denied by Supreme Court November 3, 1978.
ERWIN, Judge.
Defendant presents three questions on this appeal. He first contends that Judges Grist and Hasty erred in permitting plaintiff to amend its complaint. G.S. 1A-1, Rule 15(a), gives trial courts extensive discretion in determining whether or not leave to amend will be granted after the time for amending as a matter of course has expired. Indeed, "leave shall be freely given when justice so requires." G.S. 1A-1, Rule 15(a). The discretion of the trial court in allowing amendments is not reviewable absent a showing of abuse thereof. Forbes v. Pillmon, 18 N.C.App. 439, 197 S.E.2d 226 (1973); Galligan v. Smith, 14 N.C.App. 220, 188 S.E.2d 31 (1972), cert. denied, 281 N.C. 514, 189 S.E.2d 36 (1972). We find no such abuse of discretion, and this assignment of error is overruled.
Defendant next excepts to the trial court's finding of fact No. 12, which, in part, determines that defendant interfered with plaintiff's efforts to survey the property. The finding as a whole goes to explain why plaintiff was late in obtaining a proper survey to be used to identify the desired 42 acres, that defendant was aware of plaintiff's intent to seek release of a 42-acre parcel, and that plaintiff exercised due diligence. Suffice it to say that the finding objected to is amply supported by the evidence. When a jury trial is waived, the trial court's findings of fact have the same force and effect of a jury verdict and are conclusive on appeal if supported by evidence, even though there may be evidence to sustain contrary findings. Blackwell v. Butts, 278 N.C. 615, 180 S.E.2d 835 (1971).
*13 Defendant finally contends that he was entitled to judgment as a matter of law. The note and deed of trust were expressly subject to the following pertinent provisions:
"7. No releases will be permitted at any time when the debt represented by this note is in default.
* * * * * *
9. One tract of not more than forty-two (42) acres, to be selected by the undersigned Purchaser and surveyed at his expense, will be released from the lien of the deed of trust securing this note without any payment on the debt secured by said deed of trust, and the Trustee is expressly authorized to execute said release without joinder of the holder of this note."
We do not think that Paragraph 9 is subject to Paragraph 7. It is apparent that the parties intended to set apart and treat differently other releases from the release of the 42 acres. The release of the 42 acres was to be made "without any payment on the debt." Paragraph 9 is the last of the "special terms and conditions," and Paragraph 8 allows the trustee to execute releases "on the terms and conditions hereinabove set out." (Emphasis added.) The only conditions attached to the release of the 42 acres are the selection of such tract by the purchaser and the purchaser's bearing the cost of survey. No restriction is placed on the purchaser as to which tract of 42 acres is to be released, so long as the tract does not exceed 42 acres. Paragraph 9 is tantamount to the exception of a 42-acre tract from the operation of the deed of trust, with the purchaser having sole discretion to select it.
We do not perceive a conflict between the provisions of Paragraphs 7 and 9. Even assuming such conflict, however, the general terms of Paragraph 7 give way to the specific terms of Paragraph 9. See Contracting Co. v. Ports Authority, 284 N.C. 732, 202 S.E.2d 473 (1974).
Defendant stresses that the formal request for the release of the 42 acres was apparently not received by the trustee until after foreclosure and after the trustee's deed had been delivered. However, there was evidence that defendant had been informed of plaintiff's intention to obtain release of the parcel and that a survey was in progress several months previously. In any event, we conclude that the trial court's conclusions of law were correct:
"UPON THE FOREGOING FACTS, THE COURT CONCLUDES AS A MATTER OF LAW:
That the deed dated October 25, 1973, to Karl A. Kandell from Robert L. Parker conveyed the entire boundary which included the forty-two acres involved in this action, and Kandell and his assignee, the plaintiff corporation, received title to the forty-two acres wherever it might be located by survey; that no additional payment was to be made by the purchaser with respect to the forty-two acre tract, and its location by survey at the sole discretion of the purchaser was the only remaining act required; that the deed of trust contained the same description as the deed, and the entire boundary was included in the deed of trust but subject to the location by survey of any forty-two acres to be selected by purchaser; that neither the seller nor the Trustee under the terms of the deed of trust secured any title or right to the forty-two acres and could not convey any right by foreclosure; that plaintiff acted with reasonable diligence and within a reasonable time to secure a survey of the forty-two acre tract; that plaintiff demanded a release deed from the Trustee within a reasonable time and was entitled to such deed; that the foreclosure action was void and ineffectual with regard to the forty-two acres and did not convey title to the forty-two acres selected and surveyed by plaintiff; that plaintiff is the owner in fee simple and entitled to the possession of the forty-two acre tract.. . ."
We feel that defendant's reliance on Barefoot v. Lumpkin, 28 N.C.App. 721, 222 S.E.2d 919 (1976), and G.S. 45-21.29A for *14 the proposition that the right to have property released from a deed of trust does not survive foreclosure pursuant to such deed of trust is misplaced. In reality, the 42-acre tract was not subject to the deed of trust, as Judge Baley concluded. Further, in Barefoot, supra, there was a condition to the release, namely, that the parties approve a mutually agreeable development plan. No such condition appears here.
We are cautious to add that our decision herein is specifically limited to the facts of this case and to the language of the pertinent documents. We note that plaintiff's assignor made a substantial down payment on the property, the trial court found plaintiff had used due diligence in obtaining a survey and seeking release, and that defendant/seller was high bidder at the foreclosure sale. These factors have been of importance in reaching our decision.
Accordingly, the judgment of the trial court is
Affirmed.
BRITT and ARNOLD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334639/ | 146 Ga. App. 636 (1978)
247 S.E.2d 149
HOPE ELECTRIC, INC.
v.
GEMINI CONSTRUCTION COMPANY.
55492.
Court of Appeals of Georgia.
Argued March 1, 1978.
Decided June 22, 1978.
Rehearing Denied July 13, 1978.
Spearman, Thrasher & Whitley, Daniel I. MacIntyre, James G. Jackson, for appellant.
Tony L. Axam, for appellee.
BANKE, Judge.
This is an action for damages for breach of contract brought by the appellee, Gemini Construction Company, against the appellant, Hope Electric, Inc. The contract called for Gemini to perform certain construction and excavation work in connection with the installation of a new aircraft landing system at Lovell Field in Chattanooga, Tennessee. Hope essentially performed the function of prime contractor. After a portion of the work had been completed, Hope became dissatisfied with Gemini's performance, discharged it from the job, and refused to complete payment of the contract price. Gemini then filed this suit, alleging that it had substantially performed the work required of it under the contract and, *637 consequently, that Hope was liable for damages for terminating the contract. Hope counterclaimed, alleging that Gemini was the party in breach. The jury returned a verdict in favor of Gemini in the amount of $22,000, and Hope filed this appeal from the denial of its motion for new trial.
1. It was not error to deny Hope's motion for directed verdict or for new trial on the general grounds. Although Hope presented evidence to show that Gemini's workers repeatedly created delays in the project by failing to appear on the job, cutting underground cables, and dislocating surveyor's stakes, Gemini presented evidence indicating that it had substantially performed its obligations under the contract and that the delays were caused by Hope's failure to coordinate the efforts of the various subcontractors working on the project. In the face of this conflicting evidence, it was for the jury to determine whether Hope's action in discharging Gemini from the job was a justifiable response to Gemini's failure to perform, or whether said action constituted a breach of contract by Hope. See generally C. & S. Bank of Thomaston v. Barron, 181 Ga. 351 (3) (181 SE 859) (1935); Mendenhall v. Nalley, 81 Ga. App. 517 (59 SE2d 283) (1950).
Hope also contends that the jury's award of damages was excessive as a matter of law because its evidence established that Gemini would have suffered a net loss had it completed its work. However, Gemini's president offered figures which, if believed, showed that his firm would have realized a net profit on the contract. The jury's award of damages was supported by his testimony.
2. It was not error to allow into evidence, over objection, a document entitled "Cost Analysis" which purported to be a summary of costs which Gemini had incurred in attempting to complete its work under the contract. Although the employee who had actually prepared the summary was not available for cross examination, Gemini's president personally vouched for the accuracy of the document, testifying that he had monitored its preparation and had checked the figures against the invoices on which they were based. Under these circumstances, the information contained in the *638 document did not constitute hearsay and was competent evidence. Accord, Ghingold v. Ghingold, 228 Ga. 515 (186 SE2d 747) (1972).
3. The following jury charge is enumerated as error on the ground that it implied a duty on the part of Hope to provide direct supervision for Gemini's employees:
"The Court further charges you that if you find from the evidence that the failure of the plaintiff, Gemini Construction Company, Inc., to perform the work under the subject contract was caused by the failure of the defendant, Hope Electric Inc., in providing general superintendence and coordination of the project, then it is your duty to return a verdict for the plaintiff."
We do not agree that the use of the term "general superintendence" implied a duty of direct supervision. The charge was rather a statement of Gemini's contention that the delays on the project were caused by Hope's failure to coordinate the work of the various subcontractors. Nor do we agree that the charge was argumentative because it stated only Gemini's contention with respect to this issue, since Hope's contentions were adequately presented in other portions of the charge. See Tietjen v. Dobson, 170 Ga. 123 (6), 133 (152 SE 222) (1929); Sheppard v. Broome, 214 Ga. 659 (11) (107 SE2d 219) (1959); Thomas v. Barnett, 107 Ga. App. 717 (5), 729 (131 SE2d 818) (1963); Scholle Atlanta Corp. v. Nealy, 110 Ga. App. 775 (1) (140 SE2d 88) (1964).
4. It was not error to charge that damages should be awarded upon a finding that the contract had been "materially" breached, rather than upon a finding that it had been "wrongfully" breached. We have been made aware of no distinction between a material breach and a wrongful breach.
Contrary to Hope's contention, the trial court did in fact charge that the amount of damages awarded must be reduced by the amount of any net loss which would have occurred had the entire contract been completed.
5. Hope's remaining enumerations of error go to the trial court's failure to grant various of its requests to charge. Each of these charges was based on essentially the same principle, i.e., that the plaintiff must show compliance with its obligations under the contract before *639 it is entitled to recover for the defendant's breach. This principle was adequately covered in the court's charge as given; and, therefore, no error was committed in refusing to charge in the language requested. See Griffin v. Barrett, 185 Ga. 443 (4) (195 SE 746) (1938); Bassett v. Hunter, 205 Ga. 417 (4) (53 SE2d 909) (1949).
6. Evidence that Gemini's president was convicted subsequent to this trial for failure to pay withholding taxes owed to the United States did not demand a new trial, since this evidence was merely of an impeaching character. Barrow v. State, 80 Ga. 191 (1) (5 SE 64) (1887).
Judgment affirmed. Deen, P. J., and Smith, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334643/ | 247 S.E.2d 648 (1978)
38 N.C. App. 120
NORTH CAROLINA NATIONAL BANK
v.
Ted R. BURNETTE and wife, Irma M. Burnette.
No. 7724SC852.
Court of Appeals of North Carolina.
October 3, 1978.
*650 Smith, Moore, Smith, Schell & Hunter by Larry B. Sitton and Robert A. Wicker, Greensboro, and Watson & Dobbin by Richard B. Dobbin, Spruce Pine, for plaintiff.
McLean, Leake, Talman & Stevenson by Wesley F. Talman, Jr. and Joel B. Stevenson, Asheville, for defendants.
MARTIN, Judge.
Defendants' Appeal
Defendants bring forward two arguments on this appeal. The first is that the trial court erred in entering judgment notwithstanding the verdict as to issue four. *651 Defendants' contention is that the plaintiff had, as a matter of law, failed to comply with statutory requirements of notice of the sale of the grading equipment. While we do not agree that plaintiff as a matter of law failed to comply with the statutory requirements of notice, we do find that the trial court erred in granting plaintiff's motion for JNOV as to issue four.
The test for determining the appropriateness of a judgment notwithstanding the verdict pursuant to G.S. 1A-1, Rule 50 is the same as is applied on a motion for a directed verdict. Snelling v. Roberts, 12 N.C.App. 476, 183 S.E.2d 872, cert. denied 279 N.C. 727, 184 S.E.2d 886 (1971). Under this test, all the evidence which supports defendants' claim must be taken as true and considered in the light most favorable to the non-moving party, giving him the benefit of every reasonable inference which may legitimately be drawn therefrom. See, e. g. Wilson v. Miller, 20 N.C.App. 156, 201 S.E.2d 55 (1973). In ruling on a motion for a directed verdict, our Supreme Court, in Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971), has emphasized the importance of determining in such questions who has the burden of proof. We do not believe that Cutts v. Casey stands for the proposition that a directed verdict may never be granted in favor of the party with the burden of proof. Chief Justice Sharp wrote in that opinion:
"The established policy of this Statedeclared in both the constitution and statutesis that the credibility of testimony is for the jury, not the court, and that a genuine issue of fact must be tried by a jury unless this right is waived. [Citation omitted.] Whether there is a `genuine issue of fact' is, of course, a preliminary question for the judge. There may be, as suggested by Phillips, § 1488.10 (1970 Supp.), `a few situations in which the acceptance of credibility as a matter of law seems compelled.' If so, we will endeavor [or] to recognize that situation when it confronts us." Id. at 421, 180 S.E.2d at 314.
Nevertheless, it is clear that the granting of a directed verdict in favor of the party with the burden of proof will be more closely scrutinized than otherwise. Since our courts should treat a motion for judgment notwithstanding the verdict under the same standards applied to a motion for a directed verdict, we begin our analysis by determining who in the instant case had the burden of proof.
G.S. 25-9-504, which deals with the secured party's right to dispose of collateral after the debtor's default, states in pertinent part:
"(3) Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale."
While the statute itself does not address the question of burden of proof, this Court in Credit Co. v. Concrete Co., 31 N.C.App. 450, 229 S.E.2d 814 (1976), held that a creditor, when suing for a deficiency judgment, has the burden of proving that the disposition of the collateral was conducted in a commercially reasonable manner. Likewise, we believe that, in actions by a creditor to obtain a deficiency judgment, the burden of proving that notice was properly sent by the creditor to the debtor rests with the creditor. See also Universal C.I.T. Credit Co. v. Rone, 248 Ark. 665, 453 S.W.2d 37 (1970).
*652 In the present case, the issue in question, issue four read, "Did the plaintiff bank dispose of the grading equipment in a commercially reasonable manner?" While we do not expressly approve of this statement of the issue, since it combines two questions which the jury was called upon to decide, we think the trial judge's instructions to the jury made clear that this issue covered not only the question of the commercial reasonableness of the sale but also the question of reasonable notice to defendants. Since the plaintiff had the burden of proving reasonable notice to defendants and since there was contradictory evidence concerning that notice, we hold that the trial court's JNOV on issue four was improper.
Under the terms of the security agreement, the plaintiff was obligated to mail a copy of its notice of public sale to defendants at the address shown on the agreement. That address was Route 1, Box 271, Spruce Pine, North Carolina 28777. The notice concerning the sale of the crushing equipment was in fact sent to, and received by, defendants at this address. According to one of plaintiff's witnesses, however, the notice concerning the sale of the grading equipment was sent to defendants at Route 1, Little Switzerland, North Carolina 28749. This was so despite the fact that on the face of the notice was the statement that the notice was mailed to defendants at Route 1, Box 271, Spruce Pine. Plaintiff's agent, Thomas Bledsoe, admitted in his testimony that he knew that there was no Route 1, Little Switzerland. Plaintiff argues that, since the demand note sent 29 July 1974 reached defendants at the Route 1, Little Switzerland address, the bank's mailing constituted reasonable notice. We note, however, that the return receipt on the demand letters indicated receipt by defendants at P. O. Box 121, Little Switzerland. While there was evidence that defendants did live in Little Switzerland, there was uncontroverted evidence that defendants did not in fact receive the notice until 7 November 1974, well after the sale of grading equipment had taken place.
Plaintiff argues that, under G.S. 25-9-601, it is entitled to a conclusive presumption of commercial reasonableness. G.S. 25-9-601 reads:
"Disposition of collateral by public proceedings as permitted by G.S. 25-9-504 may be made in accordance with the provisions of this part. The provisions of this part are not mandatory for disposition by public proceedings, but any disposition of the collateral by public sale wherein the secured party has substantially complied with the procedures provided in [part 6] shall conclusively be deemed to be commercially reasonable in all aspects."
G.S. 25-9-603, which is within Part 6, outlines the requirement of notice:
"(1) In each public sale conducted hereunder, the notice of sale shall be posted on a bulletin board provided for the posting of such legal notices, in the courthouse, in the county in which the sale is to be held, for at least five days immediately preceding the sale.
"(2) In addition to the posting of notice required by subsection (1), the secured party or other party holding such public sale shall, at least five days before the date of sale, mail by registered or certified mail a copy of the notice of sale to each debtor obligated under the security agreement:
"(a) at the actual address of the debtors, if known to the secured party, or
"(b) at the address, if any, furnished the secured party, in writing, by the debtors, or otherwise at the last known address."
Plaintiff's contention is that since it substantially complied with the notice requirement of G.S. 25-9-603 by posting the notice at the Yancey County Courthouse and mailing the notice to defendants at a non-existent address, it is entitled to a conclusive presumption of commercial reasonableness. We do not, however, accept the construction of Part 6 which plaintiff advocates. Carried to its logical extreme, a creditor could substantially comply with all the other provisions of Part 6, fail to give any *653 notice to the debtor, and still be entitled to the exclusive presumption of commercial reasonableness. We believe and hold that the notice required under G.S. 25-9-603 is mandatory and is a distinct and separate requirement from the requirement for commercial reasonableness. We point out that other sections of Part 6 are not written in language as strong as G.S. 25-9-603. For example, G.S. 25-9-602, dealing with the contents of the notice, contains the mandate that the notice "shall substantially" include certain items of information. G.S. 25-9-604 and -605, dealing respectively with exceptions as to perishable property and postponement of public sale, use the word "may" which is discretionary language. On the other hand, G.S. 25-9-603 uses the unmodified word "shall." We, therefore, conclude that the requirements of G.S. 25-9-603 for notice of sale must be complied with. As stated above, under the facts of the case before us, the jury might reasonably have found that G.S. 25-9-603 was not followed; hence the judgment notwithstanding the verdict for issue 4 was improperly granted.
Defendants' second argument is that the court erred in entering judgment notwithstanding the verdict as to issues 2 and 4 because the application of G.S. 25-9-601 et seq. in the JNOV amounted to a deprivation of defendants' property without due process. Since we have construed G.S. 25-9-601 et seq. in a way which requires notice to defendants and since defendants have failed to argue specifically why the JNOV for issue 2 violated defendants' due process rights, we see no need to address this question.
Plaintiff's Appeal
Plaintiff's first of three arguments is that the trial court erred in allowing the defendants' motion for a JNOV on Issues 6 and 7. Assuming that the JNOV was granted against the party with the burden of proof on the issue of collateral, we then must review the evidence in the light most favorable to plaintiff, giving it the benefit of every reasonable inference which may legitimately be drawn therefrom. With this standard before us we conclude that plaintiff submitted enough evidence, which the jury apparently believed, to withstand the JNOV. The security agreement sufficiently described the collateral and covered "all equipment, parts and accessories now or hereafter used in connection therewith. . . ." While there was contradictory evidence concerning what had been sold and what remained, it was clear that defendants had not checked the site of the rock crushing operation to determine whether certain allegedly illegally sold items remained. All of the items admittedly sold by plaintiff and not specifically listed in the security agreement could fit within the category of equipment used in connection with the listed equipment. We therefore find that the trial court's JNOV on Issues 6 and 7 was error.
The second question presented by plaintiff's appeal is whether the trial court erred in entering final judgment without awarding plaintiff interest from the date the complaint was filed. Under the terms of the promissory note, defendants were to pay plaintiff $253,586.37, "with interest after maturity at the maximum lawful rate." Plaintiff, on 29 July 1974, declared the note mature and immediately due and payable.
We believe that the trial court did err in awarding plaintiff six percent interest from the date of the judgment. Plaintiff is entitled to twelve percent interest on $40,000 from the date the promissory note became due and payable. Since, however, plaintiff seeks twelve percent interest only from the date the complaint was filed in this action, we limit its recovery to that period of time.
Plaintiff's final argument on this appeal is that the trial court erred in entering the final judgment without granting plaintiff attorneys' fees in the amount of fifteen percent of the outstanding balance. We agree that for attorneys' fees the plaintiff was entitled to an award of fifteen percent of the final judgment ($40,000). The promissory note read:
*654 "If this account is referred to an attorney to acquire possession of the Collateral described below or to enforce collection of any unpaid balance hereunder, DEBTOR agrees to pay all collection expenses and reasonable attorneys' fees of Secured Party. DEBTOR stipulates and agrees that 15% of the sum of the unpaid balance hereof at the time the matter is referred to an attorney shall be deemed reasonable attorneys' fees."
See G.S. 6-21.2.
In summary, in defendants' appeal, the case is reversed and remanded in part and affirmed in part. In plaintiff's appeal, the case is reversed and remanded. On remand, the trial court shall enter judgment consistent with this opinion.
As to defendants' appeal, reversed and remanded in part and affirmed in part.
As to plaintiff's appeal, reversed and remanded.
BROCK, C. J., concurs in the result.
MITCHELL, J., concurs.
BROCK, Chief Judge, concurring in the result:
I concur in the result reached by the majority opinion in this case; however, I disapprove of the language of the opinion insofar as it intimates that a mere allegation by the debtor that the sale was not conducted in a commercially reasonable manner or an allegation by the debtor of an inadequate and unreasonably low price would justify submission of such issue to the jury. The majority opinion does not hold that such allegations require submission to the jury but the intimation appears strong. This Court recently held in Trust Co. v. Murphy, 36 N.C.App. 760, 245 S.E.2d 101 (appeal dismissed, cert. denied, N.C., ___ S.E.2d ___ [29 August 1978]) that the allegations of a debtor of any inadequate and unreasonable price obtained for the collateral at public sale does not justify a hearing upon the question of commercial reasonableness if the creditor has shown that there was in fact a public sale following substantial compliance with the procedures provided in Part 6 of Article 9 of the Uniform Commercial Code (G.S. 25-9-601 through 25-9-607). Trust Co. v. Murphy further held that the provision of G.S. 25-9-601 which provides "any disposition of the collateral by public sale wherein the secured party has substantially complied with the procedures provided in this part [Part 6] shall conclusively be deemed to be commercially reasonable in all aspects" does not offend the due process clause of either the Constitution of the United States or the Constitution of North Carolina.
The purpose of this concurrence is only to point out that in my opinion and in the opinion of this Court in Trust Co. v. Murphy when the creditor shows substantial compliance with Part 6 the question of commercial reasonableness does not arise. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263235/ | 236 P.3d 1004 (2010)
2010 WY 106
Eileen OAKLEY, Fremont County Assessor, Appellant (Respondent),
v.
FREMONT COUNTY COMMUNITY COLLEGE DISTRICT d/b/a Central Wyoming College, Appellee (Petitioner).
No. S-09-0261.
Supreme Court of Wyoming.
July 30, 2010.
*1005 Representing Appellant: Jodi A. Darrough, Fremont County Attorney's Office, Lander, Wyoming.
Representing Appellee: Frank B. Watkins of Frank B. Watkins, P.C., Riverton, Wyoming.
Before KITE, C.J., and GOLDEN, VOIGT[*], and BURKE, JJ, and BROOKS, D.J.
BROOKS, District Judge.
[¶ 1] The Fremont County Assessor (the Assessor) appeals from a decision of the district court exempting from taxation certain property in Riverton owned by Central Wyoming College (CWC). We reverse because the district court's holding was not in accordance with Article 15, § 12 of the Wyoming Constitution.
ISSUE
[¶ 2] The parties agree that the sole issue on appeal is whether certain lots within *1006 CWC's business park are exempt from taxation based on their current use.
FACTUAL BACKGROUND
[¶ 3] CWC is a public, non-profit, fully accredited, two-year community college that was established in 1966. CWC is primarily funded by state and local taxes, scholarship funds, tuition, and fees. CWC established a business park in 1967 to generate revenue from the leasing of land owned by the college. The CWC Foundation manages the business park property pursuant to a long-term management lease with CWC. Community college foundations are recognized by statute for the purpose of raising additional revenues for the college. Wyo. Stat. Ann. § 21-16-1102(a)(iii) (LexisNexis 2009).
[¶ 4] CWC currently owns 333 acres; 193 acres are contiguous in Riverton and include 50 acres comprising the business park. Twenty-five acres of the business park are divided into lots, and have been developed and leased by CWC to 10 for-profit tenants. These 25 acres and lots are the subject of this appeal.
[¶ 5] The lots in question are leased to a daycare facility, a law office, a doctor's office, an investment company, a development company, and other private businesses that are independent from and unrelated to CWC. The business park tenants are, in theory, selected to enhance the educational purpose of the college and may provide internships. The record does not indicate, however, that any of the businesses actually hire, train, or have any significant contact with students, staff, or faculty of CWC. Neither the Assessor nor CWC contend otherwise. The revenues derived by the business park are collected and managed by the CWC Foundation. The Foundation receives a fee and the residual income is used for CWC student scholarships, programs, and activities.
[¶ 6] The Assessor issued a 2007 Notice of Tax Assessment for the business park property leased to the for-profit tenants. The Assessor concluded that because the subject property was being leased for commercial profit, it was subject to taxation. CWC protested the tax assessment and a hearing was held before the Fremont County Board of Equalization. That board affirmed the decision of the Assessor. It specifically found:
4. All lots involved in this protest are leased and all Lessees are private individuals or business entities and thus, the primary use of the lots in question are used for a commercial purpose.
5. All these Lessees are in a commercial venture in that, as the Assessor['s] uncontroverted testimony indicates each exists to obtain profit, that each sells a product or service, that none are exempt under the Internal Revenue Service tax code....
[¶ 7] CWC appealed the matter to the State Board of Equalization. The State Board heard the matter and affirmed the decision of the County Board. CWC next filed a Petition for Review in the Ninth Judicial District Court. The district court reversed the decision of the State Board of Equalization. The court found that the business park was reasonably necessary to the efficient operation and maintenance of CWC. The district court noted that the original plan for the business park was to help provide for the technical and vocational education of its students. The court also emphasized that taxing CWC would result in the useless endeavor of having one government entity taxing another.
STANDARD OF REVIEW
[¶ 8] Administrative action is reviewed pursuant to Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2009), which provides in pertinent part:
(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
*1007 ....
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
....
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
...; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.
[¶ 9] The Supreme Court reviews both the agency's findings of fact and conclusions of law. "[C]onsiderable deference is accorded to the findings of fact of the agency, and this Court does not disturb them unless they are contrary to the overwhelming weight of evidence." Amoco Prod. Co. v. Wyo. State Bd. of Equalization, 12 P.3d 668, 671 (Wyo.2000). "An agency's conclusions of law can be affirmed only if they are in accord with the law. Our function is to correct any error that an agency makes in its interpretation or application of the law." EOG Res., Inc. v. Wyo. Dep't of Revenue, 2004 WY 35, ¶ 12, 86 P.3d 1280, 1284 (Wyo.2004) (citation omitted).
[¶ 10] No deference is afforded the appellate review conducted by the State Board or by the district court. Laramie County Bd. of Equalization v. Wyo. State Bd. of Equalization, 915 P.2d 1184, 1188 (Wyo.1996). An independent inquiry into the matter is conducted, just as if it had proceeded directly to the Supreme Court from the agency. Wyo. Dep't of Revenue v. Guthrie, 2005 WY 79, ¶ 11, 115 P.3d 1086, 1091 (Wyo. 2005).
DISCUSSION
[¶ 11] The Wyoming Constitution at Article 15, § 12 provides:
The property of the United States, the state, counties, cities, towns, school districts and municipal corporations, when used primarily for a governmental purpose, and public libraries, lots with the buildings thereon used exclusively for religious worship, church parsonages, church schools and public cemeteries, shall be exempt from taxation, and such other property as the legislature may by general law provide.
(Emphasis supplied.) Similarly, Wyo. Stat. Ann. § 39-11-105(a)(i-v) (LexisNexis 2009) provides that property owned and used by a state, county, school district, city, or town that is used primarily for a governmental purpose is exempt from taxation.
[¶ 12] The parties agree that the CWC property is tax exempt if used primarily for a governmental purpose. CWC asserts that the business park property at issue was intended to enhance the educational purpose of the college. Furthermore, CWC points out that the leased property generates revenue that is used for the college's support and maintenance. The Assessor contends to the contrary that the lessee's use of the property is clearly non-governmental and therefore is taxable.
[¶ 13] In 1956, Article 15, § 12 of the Wyoming Constitution was amended to provide an exemption for governmental property only when used "primarily for a governmental purpose." Prior to that time the Constitution provided that all property of the state, counties, cities, towns, and school districts was exempt from taxation. Thus, the amendment to Article 15, § 12 shifted the exempt status from property ownership to property use. See Town of Pine Bluffs v. State Bd. of Equalization, 79 Wyo. 262, 333 P.2d 700, 703-04 (Wyo.1958).
[¶ 14] This Court has, on several occasions, acknowledged that property use is the critical issue in determining tax-exempt status. In City of Cheyenne v. Sims, 521 P.2d 1347, 1348-49 (Wyo.1974), we held that exemption from taxation is a factual issue which is determined by the use of the property. Similarly, in Deromedi v. Town of Thermopolis (In re Deromedi), 2002 WY 69, ¶ 10, 45 P.3d 1150, 1154 (Wyo.2002), this Court stated that the mere ownership of property by a governmental entity does not *1008 exempt the property. The property must be used primarily for a governmental purpose.
[¶ 15] In City of Cheyenne v. Bd. of County Comm'rs of Laramie County, 484 P.2d 706 (Wyo.1971), we dealt with whether certain buildings located on the grounds of the municipal airport were subject to taxation. The buildings were leased to for-profit private persons or entities. Three of the buildings were used as fixed-based operations for the repair, equipping, fueling, and storage of aircraft for the general public. We concluded that such fixed-based operations were a necessary adjunct to the airport, and, therefore, the buildings were tax exempt. One of the other buildings was leased to a Cheyenne ambulance service and still another to a company that principally did airplane repairs and other services for the United States Government. This Court affirmed the district court's finding that these last two buildings were not primarily for a government purpose and were subject to taxation. We ultimately found that "[t]he test... is whether or not those buildings were primarily used ... as reasonably necessary or essential facilities to the efficient operation and maintenance of the airport." Id. at 709 (emphasis supplied). It is important to note, however, that the mere renting of the governmental property to a private entity engaged in a profit-making venture does not necessarily render that property taxable. A governmental entity can accomplish a governmental purpose through a private lessee. Id. We have also held that once a property is being used primarily for a governmental purpose, the fact that the property is being used for other purposes does not destroy its tax-exempt status. State Bd. of Equalization v. City of Lander, 882 P.2d 844, 850 (Wyo.1994).
[¶ 16] We turn then to the case now before us. The property at issue is part of a business park. The tenants that have leased property are all private, for-profit businesses. These businesses are lessees only and are not managed by, controlled by, or affiliated with CWC. We have nothing before us to indicate that CWC students or staff have any significant involvement in these business enterprises. Certainly, the lessees do not appear to be reasonably necessary or essential to the operation of CWC. Even if there is some tangential use of the property by CWC faculty, staff, or students of which we are unaware, it has not been demonstrated that such use is primarily governmental.
[¶ 17] CWC's stated intentions for the property, coupled with rental payments, are not sufficient to comply with the Wyoming Constitution's mandate that the property be used primarily for a governmental purpose. Here the use of the property is primarily, if not exclusively, for private non-governmental purposes. As such, the business park property at issue is taxable.
[¶ 18] The district court correctly pointed out that we want to avoid a tax spiral where the government is taxing itself to pay itself. That certainly would be true if the property were being used primarily for a governmental purpose. In this case, however, the for-profit tenants will likely have the tax assessment passed on to them. This will avoid the tax spiral and result in the tenants being placed on equal footing with the competitor businesses who don't lease from government entities.
CONCLUSION
[¶ 19] The for-profit tenants' use of CWC's business park property is clearly non-governmental and not necessary or essential to facilitate the efficient operation and maintenance of the college. Therefore the property is not tax exempt pursuant to Article 15, § 12 of the Wyoming Constitution. The decisions of the Fremont County Assessor and Board of Equalization are affirmed and the district court is reversed.
NOTES
[*] Chief Justice at time of oral argument. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743570/ | 937 S.W.2d 425 (1996)
LEONARD & HARRAL PACKING COMPANY d/b/a L & H Packing Company, Petitioner,
v.
Ivan WARD d/b/a Ward Feed Yard, Respondent.
No. 94-1184.
Supreme Court of Texas.
April 12, 1996.
Rehearing Overruled February 21, 1997.
Michael Shearn, San Antonio, for Petitioner.
Charles Buenger, Katherine French Dow, Waco, for Respondent.
OPINION
PER CURIAM.
In Transportation Insurance Co. v. Moriel, 879 S.W.2d 10, 31 (Tex.1994), we held "that the court of appeals, when conducting a factual sufficiency review of a punitive damages award, must hereafter detail the relevant evidence in its opinion, explaining why that evidence either supports or does not support the punitive damages award in light of the [Alamo National Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981)] factors." In Ellis County State Bank v. Keever, 888 S.W.2d 790, 799 (Tex.1994), we held that the review required by Moriel "should be applied to a pending case in which a party has preserved the complaint that the court of appeals failed to properly scrutinize a punitive damage award." In Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 183 (Tex.1995), we required that this Kraus review be applied to an award of additional damages under the Deceptive Trade PracticesConsumer Protection Act (DTPA), TEX.BUS. & COM.CODE § 17.50(b).
In the case now before us petitioner complains that the court of appeals concluded it was not required to follow Moriel and Keever in reviewing an award of DTPA additional damages. 883 S.W.2d 337, 345, 348. That conclusion directly conflicts with our subsequent decision in Haynes & Boone. We have reviewed petitioners' additional complaints and conclude that none reveal other reversible errors.
Accordingly, without hearing oral argument, we grant petitioner's application for writ of error, reverse the judgment of the court of appeals, and remand the case to that court for a Moriel review of the DTPA additional damages. Tex.R.App.P. 170. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264993/ | 6 F. Supp. 486 (1933)
ALBERT PICK CO., Inc.,
v.
TRAVIS.
District Court, E. D. New York.
December 26, 1933.
Verne R. Foley, of New York City, for plaintiff.
Irving C. Maltz, of Brooklyn, N. Y., for defendant.
MOSCOWITZ, District Judge.
This is an action by Albert Pick Company, Inc., on behalf of itself and other creditors of Charles H. Mentzinger, against Eugene M. Travis as trustee in bankruptcy of the said Mentzinger, to impress a trust upon certain moneys now in the possession of the said trustee and upon a further certain sum of money when and if the same is acquired by the trustee.
On or about the 2d day of May, 1930, the said Mentzinger entered into a contract with the city of New York, acting through the board of higher education of the city of New York, to furnish labor and materials for public improvements in the construction of a social unit for Hunter College.
On or about November 10, 1930, Albert Pick-Barth Company, Inc., by and through and in the name of the John Van Range Company (the John Van Range Company and Albert Pick-Barth Company, Inc., being subsidiaries of Albert Pick & Co., an Illinois corporation) entered into a subcontract with said Mentzinger for the furnishing and installation of certain cafeteria and kitchen equipment in the said Power House cafeteria social unit of said Hunter College; that the said contract was for the sum of $33,500, all of which has been paid with the exception of $10,659.60.
On the 26th day of September, 1932, the city of New York paid the said Mentzinger out of funds applicable to the payment of said contract between Mentzinger and the city of New York the sum of $10,724.86, which sum constituted the final payment on the said contract, exclusive, however, of the sum of $2,010.04, which was a retained percentage customarily withheld on city contracts.
On the 27th day of September, 1932, the said Mentzinger deposited approximately $9,000 of the moneys received from the city of New York in his bank account maintained in the Bank of Manhattan Trust Company. On the same day, and subsequent to the deposit of the money, one Cliston Corporation presented to the bank for payment a certain demand note dated November 6, 1931, in the sum of $7,000, made and executed by the said Mentzinger, which said note and interest due thereon was on the 28th of September, 1932, paid by the said Bank of Manhattan Trust Company to said Cliston Corporation.
It has been stipulated that the Cliston Corporation was not a subcontractor under said Mentzinger, nor did it furnish labor or materials to the said Mentzinger, nor did it act as architect, engineer, or surveyor in connection with the Hunter College job, the subject of the contract between Mentzinger and the city of New York.
At the time that the $9,000, part of the payment received by Mentzinger from the city of New York, was deposited by him in his bank account, there was a balance in the said account of approximately $110. It has been stipulated that the said sum of $7,000 received by the Cliston Corporation was paid out of funds in the said account.
On the 27th day of October, 1932, an involuntary *487 petition in bankruptcy was filed against Mentzinger. On or about the 10th day of November, 1932, Mentzinger was duly adjudicated a bankrupt. On the 20th day of December, 1932, Eugene M. Travis was duly appointed trustee in bankruptcy, and thereafter duly qualified as such trustee.
Subsequently, Eugene M. Travis, as trustee, demanded that the Cliston Corporation return the said moneys on the ground that the moneys so received constituted a preferential payment in violation of the bankruptcy laws of the United States.
On the 1st day of February, 1933, the Cliston Corporation offered to pay to the said Eugene M. Travis, as trustee, the sum of $5,000 in settlement of the claim against it. At a meeting of the creditors called for the purpose of passing upon the said offer, the plaintiff herein, on behalf of itself and other creditors similarly situated, consented to the acceptance of the said offer without prejudice to it and such creditors' claims that the said moneys constituted trust funds.
On the 27th of March, 1933, the said Cliston Corporation paid to Eugene M. Travis, as trustee, the sum of $5,000.
The question presented is whether the $5,000 now in the hands of Eugene M. Travis, as trustee, shall be impressed with a trust fund for the benefit of the creditors who furnished materials and performed work on the Hunter College job, or whether it should be equally distributed among all the creditors.
Section 36-a of the Lien Law of the state of New York (Consol. Laws, c. 33) provides:
"Contractor who diverts funds guilty of larceny. The funds received by a contractor from an owner for the improvement of real property are hereby declared to constitute trust funds in the hands of such contractor to be applied first to the payment of claims of subcontractors, architects, engineers, surveyors, laborers and materialmen arising out of the improvement, and to the payment of premiums on surety bond or bonds filed and premiums on insurance accruing during the making of the improvement and any contractor and any officer, director or agent of any contractor who applies or consents to the application of such funds for any other purpose and fails to pay the claims hereinbefore mentioned is guilty of larceny and punishable as provided in section thirteen hundred and two of the penal law." Added by Laws 1930, c. 859, § 18, in effect October 1, 1930.
Under such section there can be no doubt that the funds in the hands of a contractor are trust funds for the benefit of subcontractors, materialmen, etc.
Article 1, § 2, of the Lien Law, defines a contractor as follows: "The term `contractor,' when used in this chapter, means a person who enters into a contract with the owner of real property for the improvement thereof, or with the state or a municipal corporation for a public improvement."
The rule of construction of statutes compels that all sections of law be read together to ascertain the true intent of the Legislature. Section 25-a (added by Laws N. Y. 1932, c. 627, § 8) served to clarify section 36-a. People v. Levitt (1932) 145 Misc. 621, 260 N. Y. S. 458. It is apparent that section 36-a includes a contractor engaged in a public improvement.
Section 36-a was in effect October 1, 1930. Plaintiff's contract was executed November 10, 1930, one month and ten days after the enactment of section 36-a. Both contracting parties knew of the existence of such statute. Mentzinger must have been aware that any money received from the city of New York under the said contract he held as trust funds for the benefit of the materialmen, subcontractors, etc.
It is conceded that the money paid to the Cliston Corporation was part of the said trust fund. The money paid to the Cliston Corporation can be clearly ear-marked as part of the trust fund, and its return in no wise affects its fiduciary character. Oliver v. Piatt, 3 How. 333, 11 L. Ed. 622; Van Alen v. American Nat. Bank, 52 N.Y. 1; Central National Bank v. Life Insurance Co., 104 U.S. 54, 26 L. Ed. 693; Smith v. Township Au Gres, Michigan (C. C. A.) 150 F. 257, 9 L. R. A. (N. S.) 876.
No matter when the money came into the hands of the trustee, the trust creditors are entitled to satisfy their claim if they can show that the trust fund or the property into which it was converted came into the hands of the trustee. In re Blue Bird Appliance Co. (C. C. A.) 292 F. 127; Peters v. Bain, 133 U.S. 670, 10 S. Ct. 354, 33 L. Ed. 696; City Bank of Hopkinsville v. Blackmore (C. C. A.) 75 F. 771.
The intention of the Legislature of the state of New York was to protect subcontractors, materialmen, and laborers. Contractors cannot avoid their responsibilities by making preferential payments out of trust funds and then filing petitions in bankruptcy or having involuntary petitions filed against them.
To follow the trustee's contention that the *488 funds should be distributed among all the creditors would nullify the very purpose of the statute, which was to distribute the specific fund to a preferred class of creditors. There would be no purpose for the Lien Law were it not that the state intended to protect the very class that the statute outlined. If the contractor attempts to deprive the lienors of their rights, the court should restrain and not help facilitate the avoidance of lawful obligations.
As to the sum of $2,010.04, which has been retained by the city of New York, no disposition can be made of that money for the reason that the city of New York is not a party to this litigation. However, as between the trustee and the Albert Pick-Barth Company, Inc., and other creditors similarly situated, who performed work on the Hunter College job, their rights as trust creditors to the fund have priority over the general creditors.
Settle findings and decree on notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2265022/ | 6 F. Supp. 122 (1934)
JOHNSON MOTOR CO.
v.
UNITED STATES.
No. M-113.
Court of Claims.
March 5, 1934.
*123 *124 Lyle T. Alverson, of New York City (Johnson & Shores, of New York City, on the brief), for plaintiff.
James A. Cosgrove, of Washington, D. C., and Frank J. Wideman, Asst. Atty. Gen., for the United States.
Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
WHALEY, Judge.
This is a suit for the recovery of $10,098.90 representing income tax and interest paid by plaintiff February 9, 1927, for the calendar year 1923.
*125 The record of this case is most inadequate and unsatisfactory in regard to the essential facts upon which the plaintiff bases its contention; the facts are left in the twilight zone and the court is expected to pick out and piece together a case for the plaintiff from inferences and assumptions. All of the facts were well known to the officers of the old and new corporations and there is no assignment of any reason why the testimony of these officials has not been produced. From this vague record we gather that the plaintiff claims a capital set-up of approximately $200,000. In arriving at this amount plaintiff attempts to show that it purchased the entire assets of an insolvent corporation at a public sale held by the receiver of this corporation for the sum of $60,000; and that when this purchase was made it had an understanding with the agent of the creditors of this insolvent corporation whereby certain creditors' claims would be assumed by it. And as a matter of fact, in carrying out this agreement, the plaintiff subsequently paid the sum of $147,795.37 on the liabilities of the insolvent corporation although it only agreed to assume $137,735.98. There is no reason given for the additional payment. There is nothing in the record to show that the assets were worth more than the sum of $60,000 for which they were purchased at the public sale. The receiver who sold the assets was not a party to the agreement. The agent of the creditors made the so-called "agreement." The evidence fails to disclose if all, or what proportion, of the creditors were protected by the agreement and to what extent. There is an intimation in the record that the stockholders of the new corporation are the same as those of the old corporation; that these stockholders were the creditors of the old corporation; and that the new corporation was formed for the purpose of taking care of these creditor-stockholders. But there is no clear evidence to substantiate these facts. Who the creditors were whose claims were assumed and subsequently paid, is left in uncertainty.
The plaintiff contends that it is entitled to combine the actual cost of the assets at the receiver's sale and the liabilities under the agreement with the agent of the creditors so that its books will reflect the actual outlay of the two amounts and not solely the amount of the purchase price at the receiver's sale.
There is no question that the plaintiff would have been entitled to have included the debts assumed, if this assumption had been a part of the consideration of the purchase price at the receiver's sale. It would have then been a capital and not a business expense, as held in Athol Manufacturing Company v. Commissioner (C. C. A.) 54 F.(2d) 230, and as the Board of Tax Appeals has repeatedly held. Randolph Bergfeld, 19 B. T. A. 312, and Consolidated Coke Co., 25 B. T. A. 345. But the instant case is outside the rule laid down in these decisions. The agreement was no part of the purchase price of the assets of the old corporation.
The Commissioner of Internal Revenue made an audit of plaintiff's books for the purpose of ascertaining plaintiff's tax liability and decided $60,000 was the true capital expenditure, and on this amount assessed the tax. The rule is elementary that in tax proceedings a determination of the Commissioner is prima facie correct, and the burden is upon the plaintiff to overcome this presumption by the greater weight of the evidence. Wickwire v. Reinecke, 275 U.S. 101, 48 S. Ct. 43, 72 L. Ed. 184.
The evidence in this case fails to sustain the burden and, on the contrary, lends support to the Commissioner's decision. It is not necessary to discuss the other contentions of the plaintiff in detail. All of them are based on the capital set-up, and since we are clearly of the opinion that the amount found by the Commissioner should be affirmed, these contentions disappear from the case.
The petition should be dismissed. It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263570/ | 479 F. Supp. 97 (1979)
William A. NEWELL and Irene Newell, his wife, Plaintiffs,
v.
HIGH VISTA, INC.; All American Holding Corporation; First Valley Bank; American Bank & Trust Co. of Pennsylvania; American Urban Sciences Foundation, Inc.; Jack Halperin; Philip Seltzer; Nathan Seltzer; William Seltzer; Louis Schiavo; Charles Pilger; and Harold Burch, Defendants.
Civ. A. No. 78-1223.
United States District Court, M. D. Pennsylvania.
August 21, 1979.
*98 Jack R. Heneks, Jr., Palmyra, Pa., for plaintiffs.
Peter J. Hoegen, Jr., Wilkes-Barre, Pa., Marjorie O. Rendell, Philadelphia, Pa., Knupp & Andrews, Harrisburg, Pa., for defendants.
*99 MEMORANDUM
CONABOY, District Judge.
This is an action based upon 15 U.S.C. § 1701, et seq., the Interstate Land Sales Full Disclosure Act. Plaintiffs allege that Defendants have violated Section 1703(a)(2) of Title 15 U.S.C. by utilizing instrumentalities of interstate commerce to obtain property by means of misrepresentations. Plaintiffs' civil cause of action is based upon Section 1410(b)(1) of the Act. Presently before the Court is a Motion for Summary Judgment by Defendant, American Bank and Trust Co. of Pennsylvania on the ground that the Statute of Limitations has expired. The motion will be denied.
According to the Complaint and Answer, Plaintiffs entered into an agreement with Defendant, High Vista, Inc., to purchase a tract of land on November 16, 1975; on December 8, 1975 the deed of sale was executed and the title to the property was conveyed. On December 6, 1976 the Plaintiffs made their final payment on the purchase money note. On December 8, 1978 the Plaintiffs filed their Complaint in United States District Court.
Section 1711 of Title 15 U.S.C. sets forth the Statute of Limitations applicable to causes of action under the Act:
Section 1711 Limitations of Actions. No action shall be maintained to enforce any liability created under Section 1709 (a) or (b)(2) of this title unless brought within one year after the discovery of the untrue statement or omission, or after such discovery should have been made by the exercise of reasonable diligence, or, if the action is to enforce a liability created under 1709 (b)(1) of this title, unless brought within two years after the violation upon which it is based. In no event shall any such action be brought by a purchaser more than three years after the sale or lease to such purchaser. (emphasis added)
Defendants contend that the present action is barred in that it was commenced more than three years after the sale and more than two years after the alleged violation. Plaintiffs contend that neither time limit has expired, and in the alternative, that the doctrine of equitable tolling should act to extend the time allowed for the bringing of the action.
We cannot agree that the three-year limit on actions has expired. The deed of sale was executed on December 8, 1975, exactly three years before the Complaint in this action was filed. Defendants attempt to define the moment of sale at November 16, 1975, the time the purchase money note was executed. They claim that since Plaintiffs became obligated by the November purchase agreement, a sale was completed at that time. Defendants, however, fail to cite any authority, nor to advance any reasons, why, in an action based upon a sale of land, the execution of the deed cannot be considered a sale. Where a Statute runs from the sale of land, and where there is no authority for the proposition that a deed execution cannot be considered a sale, this Court will not bar an action that is brought within three years of the execution of the deed simply because a purchase and sale agreement had previously been entered into.
Defendants cite as their authority the definition of sale found in 24 C.F.R. Section 1701 (n), which defines a sale as: "Any obligation or arrangement for consideration to purchase a lease or lot directly or indirectly."
While this may well establish the original agreement as a sale, it hardly goes so far as to deny that the execution of a deed can also be considered a sale. Indeed, the foregoing definition is an attempt to define what a sale is, not when it is, or from whence a Statute should run.
In fact, there is authority that both the original agreement and the execution of the deed should be considered contracts for sale. See Gaudet v. Woodlake Development Company, 413 F. Supp. 486, 488 (D.La.1976). Also, that the Statute, Section 1703(a)(2), runs from the date of the last receipt of payment. See Bongratz v. W. L. Belvidere, Inc., 416 F. Supp. 27, 29 (N.D.Ill.E.D.1976).
*100 In any event, there is no contrary authority, and we hold today, that an action based upon an actual sale of land will not fail under a three-year Statute of Limitations because a purchase agreement was entered into more than three years before the action was commenced, where the execution of the deed falls within the three-year limit.
Defendants also claim that this action is barred because it was not brought within two years of the violation. The violation, they point out, comes at the time of the sale, not when any subsequent misrepresentations might be made. We agree that Section 1703(a)(2) and its subdivisions establish the moment of the violation to be at the moment of the sale, and not afterwards. The language "in selling or leasing" specifically freezes the moment of the violation at the time of the sale or the lease. Defendants correctly compare this language with the more liberal language of securities law, "in connection with the sale or lease", in order to illustrate that misleading statements made after the completed sale do not constitute independent violations of the Act. We agree that when the final payment is made on an installment contract, that should be the starting point of the two-year limit. Nor can we agree with the contention of Plaintiffs that continuing payment of water and sewer rentals act to establish continuing violations of the Act. Nevertheless, we cannot agree that Section 1711 bars the bringing of this action.
Section 1711 states that the violation founded in Section 1703 must occur within two years of the violation. It then goes on to say that "[i]n no event shall any such action be brought by a purchaser more than three years after the sale or lease to such purchaser." We read this to indicate that there is flexibility allowed in the two-year limit, as long as the action is brought within three years of the sale.
Section 1703 in effect was designed to remedy two different types of violations. The first is a sale that takes place without the seller having first filed a statement of record. In this type of action there would be no real need for flexibility in the running of the two-year limit. But the second type of violation proscribed by Section 1703 is the use of any misstatement or omission of fact in the sale or lease of land. It is this type of violation that should lend itself to the flexibility that Section 1711 provides. The present case is a very clear example of this second type of case. Plaintiffs allege that Defendants stated that improvements would be made in the development scheme. They allege that Defendants promised that lodgings, horse rentals, stable facilities would be available to them (See paragraph 21 of Plaintiffs' Complaint). They allege that Defendants promised that a ski-lift would be built, and that Defendants continually made promises that such improvements and services would be provided. (See paragraph 11 of Plaintiffs' affidavit). The nature of this type of transaction, where improvements are promised well after any sale is entered into, necessitates a flexibility in the time limitation for bringing actions based upon misrepresentations. It would be unreasonable to hold a party strictly to a limitation that has begun to run before there is any indication that misstatements have been made.
A leading case in this area, Husted v. Amrep Corp., 429 F. Supp. 298 (S.D.N.Y. 1977), also interprets the two-year limit to be flexible. Speaking of the last sentence of Section 1711, it stated:
"But by virtue of its position in an independent sentence at the end of the paragraph, the three-year limitations period must have been intended to have application to all of the claims (and their shorter limitations period) set forth in the preceding sentence. Thus, the statute clearly contemplates that some actions under Section 1709(b)(1) [Section 1703] may be brought more than two years after the "violation" so long as they are within three years of the sale." 429 F.Supp. at 306. (emphasis added).
Thus, while the three-year limit is absolute, the two-year limit should be read with flexibility. Plaintiffs raise the issue of equitable tolling, a doctrine which is normally *101 read into every Statute of Limitations on Federal causes of action. See Holmberg v. Armbrecht, 327 U.S. 392, 396-97, 66 S. Ct. 582, 90 L. Ed. 743 (1946). Plaintiffs allege misrepresentations made by the Defendants after the sale of the land that caused them to hold on to their property, to delay pursuing their rights, and to continue making maintenance payments. They also allege that Defendants fraudulently caused Plaintiffs to believe that there was construction going on.
Indeed there is a strong question of fact as to whether Defendants did, through their own fraudulent behavior, cause Plaintiffs to rely on their promises and to delay the commencement of any legal action. In addition, Plaintiffs allege that Defendant, American Bank and Trust Co., was actively involved in the planning and management of the development area. Taking their allegations as true, this Court does not deem summary judgment against the Plaintiffs to be proper.[1]
We, therefore, find that Section 1711 grants this Court flexibility in the application of the two-year limit from the violation, provided that the action is brought within three years of the sale. Since the deed was executed exactly three years before the commencement of this action, and since Plaintiffs have pleaded facts, which if proven at trial, would justify this Court in extending, or tolling, the two-year limit, the Motion for Summary Judgment by Defendant, American Bank and Trust Co., is hereby denied.
NOTES
[1] The Court directs to the attention of counsel the recent decision of Judge Herman in Kaplan v. Recra Del Corporation, Civil No. 78-699 (M.D.Pa. Aug. 23, 1979). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263309/ | 31 Cal.App.4th 418 (1995)
37 Cal. Rptr.2d 159
BIG CREEK LUMBER COMPANY, INC., Plaintiff and Respondent,
v.
COUNTY OF SAN MATEO et al., Defendants and Appellants.
Docket No. A062643.
Court of Appeals of California, First District, Division Three.
January 9, 1995.
*421 COUNSEL
Thomas F. Casey III, County Counsel, and Michael P. Murphy, Deputy County Counsel, for Defendants and Appellants.
Ronald A. Zumbrun, Robin L. Rivett, Jennifer M. Deming and Jim Burling for Plaintiff and Respondent.
OPINION
CORRIGAN, J.
This case is one of first impression concerning statutory preemption. With its passage of the Z'berg-Nejedly Forest Practice Act of *422 1973 (hereafter the FPA),[1] the Legislature established a comprehensive statutory scheme regulating the conduct of timber operations. At issue here is whether the FPA preempts a county's attempt to control, by zoning ordinance, the location of commercial timber harvesting. We conclude the county's action was not preempted and, further, that it was a reasonable exercise of the zoning authority. Accordingly, we reverse.
FACTS AND PROCEDURAL BACKGROUND
The FPA was passed in 1973. Its purpose was to "create and maintain an effective and comprehensive system of regulation and use of all timberlands...." (Pub. Resources Code, § 4513.) The California Timberland Productivity Act of 1982 (hereafter the TPA)[2] requires cities and counties to zone described timberlands as "timberland production zones," or TPZ's.[3] The TPA is intended to protect properly conducted timber operations from being prohibited or restricted due to conflict or apparent conflict with surrounding land uses.[4] The Legislature directed that this policy is to be implemented "by including all qualifying timberland in timberland production zones."[5] San Mateo County (hereafter the County) contains a number of areas that are zoned to allow timber harvesting. The conduct of timber operations in all of these areas is regulated by the FPA. In accordance with the TPA, the County designated a number of TPZ's.[6] The County had also designated other districts[7] in which timber harvesting was permitted as one of a wide variety of allowed uses. It is the regulation of these latter districts that is at issue here.
On April 14, 1992, the County Board of Supervisors (hereafter the Board) considered the potential conflict between timber harvesting operations and residential land use, then enacted amendments to its zoning ordinance.[8] The amendments prohibited, with certain exceptions, commercial timber harvesting in designated rural areas of the County "within 1,000 feet of any legal dwelling in existence on June 18, 1991...." The Ordinance did not apply to any TPZ's. It only imposed the restrictions in districts that had not been so zoned. The buffer zone's creation made about 13 percent of timber areas outside the TPZ's unavailable for timber operations.
*423 In taking its action, the Board articulated several findings, including the following: "The Board of Supervisors finds that timber harvesting operations cause a number of conflicts with existing residential uses. These conflicts predominantly involve complaints about noise associated with adjacent timber harvesting operations, but also include complaints about potential windthrow, wildfire and erosion. Timber harvesting in the vicinity of residential structures also impact [sic] the scenic and aesthetic qualities associated with those structures. Neither the Forest Practices [sic] Act nor regulations adopted thereunder establish a buffer zone between residential uses and timber harvesting."
Big Creek Lumber Company, Inc. (hereafter Big Creek), a corporation operating on lands subject to the Ordinance, sought, and the trial court granted, declaratory relief, ruling the Ordinance was preempted by the FPA, was enacted in an arbitrary and capricious manner, and was unenforceable. The court also found the Board had insufficient evidence to justify a 1,000-foot buffer zone.[9] The court issued a peremptory writ of mandamus compelling the County to set aside the Ordinance.[10] The County appealed, asserting the Ordinance was a proper exercise of its police power and was not preempted by existing law.
DISCUSSION
I. Preemption by State Law
In this case, state and local entities have taken legislative[11] action designed to further competing governmental interests. (1a) We consider first whether the County's amendments to its zoning ordinance were preempted by state statutes governing the conduct of timber harvest operations. We are guided here by well-established principles.
(2) "Comprehensive zoning has long been established as being a legitimate exercise of the police power. [Citations.]" (Beverly Oil Co. v. City of Los Angeles (1953) 40 Cal.2d 552, 557 [254 P.2d 865].) "The power of cities and counties to zone land use in accordance with local conditions is well entrenched. [Citations.] The Legislature has specified certain minimum standards for local zoning regulations (Gov. Code, § 65850 et seq.) but has *424 carefully expressed its intent to retain the maximum degree of local control (see, e.g., id., §§ 65800, 65802)." (IT Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 89 [2 Cal. Rptr.2d 513, 820 P.2d 1023].)
While local authority to zone is clearly recognized, it is not limitless. As noted in People ex rel. Deukmejian v. County of Mendocino (1984) 36 Cal.3d 476, 484-485 [204 Cal. Rptr. 897, 683 P.2d 1150]: "`Local legislation in conflict with general law is void. Conflicts exist if the ordinance duplicates [citations], contradicts [citation], or enters an area fully occupied by general law, either expressly or by legislative implication [citations]....'"
In passing the FPA, the Legislature expressly preempted regulation of the conduct of timber harvesting operations. Public Resources Code section 4513 declares the Legislature intended "to create and maintain an effective and comprehensive system of regulation and use of all timberlands...." The State Board of Forestry (hereafter the State Board) (id., § 4521.3) was directed to divide the state into districts (id., § 4531) and to adopt "forest practice rules and regulations" for each district (id., § 4551).
By statute, these district rules and regulations "shall apply to the conduct of timber operations" and deal, inter alia, with fire prevention; soil erosion; water quality; watershed and flood control; stocking; protection of young timber growth and soil productivity; control of insects, pests, and disease; protection of natural and scenic qualities; and preparation of timber harvesting plans. (Pub. Resources Code, § 4551.5.) No timber operations may be conducted without submission of a timber harvesting plan and approval by the Director of Forestry and Fire Protection or by the State Board on appeal. (Id., §§ 4004, 4581-4582, 4582.7.)
Of particular significance here, Public Resources Code section 4516.5 expressly preempted local attempts to regulate the conduct of timber operations. Although counties may recommend rules and regulations to the State Board (id., subd. (a)), "... individual counties shall not otherwise regulate the conduct of timber operations, as defined by this chapter, or require the issuance of any permit or license for those operations." (Id., subd. (d).)
If the Ordinance were a clear attempt to regulate the conduct of timber operations, our analysis would stop here. Any such attempt would be preempted expressly by Public Resources Code section 4516.5, subdivision (d) and impliedly by the remainder of the FPA's comprehensive regulatory scheme.
(1b) We find, however, that the amended zoning ordinance at issue speaks not to how timber operations may be conducted, but rather addresses *425 where they may take place. The TPA clearly contemplates local zoning authority be exercised on these issues. Other pertinent legislation demonstrates the Legislature's intent to preserve local zoning authority over the lands at issue here.
As noted above, the TPA specifically addresses the subject of zoning. It requires cities and counties to zone certain qualifying timberlands as TPZ's. (Gov. Code, §§ 51104, subd. (g), 51112, 51113.)[12] The TPA is intended to protect properly conducted timber operations from being prohibited or restricted due to conflict or apparent conflict with surrounding land uses. (Id., §§ 51101, subd. (b), 51102, subd. (b).) This policy is to be implemented "by including all qualifying timberland in timberland production zones." (Id., § 51103.)
The designation of TPZ's is left to local action, which is required under some specifically described circumstances. Exceptions are likewise set out and may result in different zoning, depending on findings made by a county board of supervisors or city council. The board or council is empowered to exclude lands from TPZ's if a majority of the body finds such exclusion to be in the public interest. (Gov. Code, § 51112.) The TPA also contains provisions for rezoning. (Id., §§ 51113, 51120-51131, 51133-51142.) Thus, it is clear that the Legislature has deferred a number of important zoning decisions to local authority, even in the case of TPZ's. It should be recalled, however, that the lands in question here are not TPZ areas.
As to those parcels excluded from the TPZ's, the board or council is empowered to apply an alternate zoning designation for primary use other than timberland, in conformance with the county general plan.[13] The local government may also remove a parcel from a TPZ (Gov. Code, § 51120, subd. (c)) or immediately rezone for conversion from timber production to another use, under some circumstances (id., § 51133, subd. (b)).
Nowhere in the statutory scheme has the Legislature expressly prohibited the use of zoning ordinances such as the one at issue here. In fact, the Legislature has specifically provided for local zoning action. (3a) Thus, *426 we consider whether there has been implied preemption. To evaluate preemption by implication, we consider the purpose and scope of the legislative scheme. (4) Implied preemption may be accomplished in one of three ways: (1) the general law so completely covers the subject as to clearly indicate the matter is exclusively one of state concern; (2) the general law partially covers the subject in terms clearly indicating a paramount state concern that will not tolerate further local action; or (3) the general law partially covers the subject and the adverse effect of a local ordinance on transient citizens of the state outweighs the possible municipal benefit. (People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485.)
(3b) Applying these tests to the case before us, we see that there has been no implied preemption. (1) The general law has not completely covered the subject of zoning. To the contrary, local zoning decisions are specifically provided for. (2) The general law not only tolerates but invites further local action as to zoning. (3) There is nothing in the record before us to support a conclusion that the adverse effect on transient citizens, if any, will outweigh the possible municipal benefit. The Supreme Court has stated: "Preemption by implication of legislative intent may not be found when the Legislature has expressed its intent to permit local regulations. Similarly, it should not be found when the statutory scheme recognizes local regulations." (People ex rel. Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485.) The statutory scheme here recognizes local regulation as to zoning decisions.
Reading the TPA and the FPA together, we are persuaded the Legislature did not intend to preclude counties from using their zoning authority to prohibit timber cutting on lands outside the TPZ's. Under the FPA, the "conduct" of timber harvesting operations is exclusively governed by state law. "Conduct" is not given a specialized definition in the FPA. Its ordinary meaning is "the act, manner, or process of carrying out (as a task) or carrying forward (as a business, government, or war)." (Webster's Third New Internat. Dict. (1970) p. 473.) That the Legislature intended to use the term "conduct" in such a way is born out by the specific kinds of issues the State Board's rules and regulations are to address. Flood control, stand density, reforestation methods, soil movement, debris disposal and the like (Pub. Resources Code, § 4516.5, subd. (a)), are clearly matters relating to the process of carrying out timber operations.
In support of its claim of express preemption, Big Creek relies upon several pieces of legislative history regarding Public Resources Code section 4516.5, subdivision (d). This history, however, sheds little or no light on the particular question before us. There is no discussion of county zoning *427 authority or its relation to regulation of the "conduct" of logging operations. The parties herein essentially agree as to the purpose of the statute: Big Creek states it was intended to "extinguish the fragmented regulations enacted by local jurisdictions throughout the state"; the County that its purpose was "to achieve uniformity in the regulation of the conduct of timber harvesting operations ... and to eliminate duplicative regulations." A zoning law allocating competing land uses among the various parts of a county, however, neither conflicts with nor duplicates general state regulations governing how one such activity is to be conducted where allowed.
Big Creek's expansive reading of Public Resources Code section 4516.5, subdivision (d) would apparently preclude all local zoning control over timber operations, so that cities and counties would be required to allow commercial logging in residential districts, for example. Neither the language of the statute nor the history provided support such a reading.
In support of its implied preemption claim, Big Creek cites several regulations adopted pursuant to the FPA which, it contends, "exhaustive[ly]" address concerns, such as noise, windthrow, fire hazard, and erosion, identified by the County as motivating the Ordinance.[14] As the County notes in response, Big Creek's argument begs the question. The County concedes it has no power to adopt its own rules on the conduct of timber operations as covered in the cited state regulations and touching on matters such as harvesting methods and quantities, the contents of a timber harvesting plan, the hours of logging operations, the treatment of slash and debris, and the maintenance of erosion control facilities. Nothing in the FPA or TPA, however, precludes the County from addressing some of the same concerns by excluding logging activity from some of the non-TPZ land under its zoning jurisdiction.
Logging, even when conducted according to state regulations, may have some impacts properly addressed by the zoning authority. That the state has sought to reduce and control these same occurrences through general regulation does not preempt local zoning control, any more than the state and federal regulation of industrial air pollution would preclude a local zoning *428 authority from relying on air pollution as a reason for excluding industrial plants from residential districts.
Finally, Big Creek argues the purpose of the TPA was to maintain large parcels of land for timber production, "not to carve out one zone allowing state regulated commercial timber production and harvesting, while allowing local regulation of timber production in all other zones." However, the County does not contend it has authority to regulate the conduct of logging on non-TPZ lands, but only that under the TPA it retains its traditional zoning authority to determine in what zones (other than the TPZ's) logging, like other land uses, may be pursued.[15]
In conclusion, under the TPA, localities must designate certain lands as TPZ's. These zones are dedicated to timber growing and harvesting, and localities may not prohibit logging on them. As to other lands that may contain timber, the TPA expressly reaffirms local authority to choose appropriate zoning. Local legislative bodies retain authority to exclude from the TPZ's certain parcels when they believe exclusion is in the public interest. (Gov. Code, § 51112, subds. (b), (c).) Localities also retain the authority to choose the non-TPZ zones into which excluded or removed parcels are placed. (Id., §§ 51112, subd. (d), 51120, subd. (c), 51133, subd. (b).) Nothing in either the TPA or the FPA suggests localities are restricted in what uses they may allow or prohibit in non-TPZ zones.
II. Reasonableness of the Ordinance as a Zoning Regulation
(5) While local bodies retain broad discretion in zoning issues, their authority is not boundless. Zoning restrictions may be stricken if they are "arbitrary and unreasonable and without substantial relation to public health, safety, or morals." (Schroeder v. Municipal Court (1977) 73 Cal. App.3d 841, 848 [141 Cal. Rptr. 85].) In other words, "a land use restriction lies within the public power if it has a `reasonable relation to the public welfare.' [Citations.]" (Associated Home Builders etc., Inc. v. City of Livermore (1976) *429 18 Cal.3d 582, 604 [135 Cal. Rptr. 41, 557 P.2d 473, 92 A.L.R.2d 1038].) "`The courts may differ with the zoning authorities as to the "necessity or propriety of an enactment," but so long as it remains a "question upon which reasonable minds might differ," there will be no judicial interference with the municipality's determination of policy.' [Citation.] In short, as stated by the Supreme Court in Euclid v. Ambler Co. [(1926) 272 U.S. 365, 388 [71 L.Ed. 303, 311, 47 S.Ct. 114, 54 A.L.R. 1016], `If the validity ... be fairly debatable, the legislative judgment must be allowed to control.'" (Id. at p. 605.) Setbacks and similar buffers are among the tools counties may use in the interest of sound community planning. (Hutcherson v. Alexander (1968) 264 Cal. App.2d 126, 132 [70 Cal. Rptr. 366, 38 A.L.R.3d 636].)
(6) Big Creek contends the Board's action was "arbitrary and unreasonable," because the record before the Board does not show a 1,000-foot buffer zone is necessary. The County's planning staff and commission, Big Creek emphasizes, had recommended the interim 1,000-foot buffer zones be replaced with permanent zones of between 200 and 500 feet.
The question, however, is not whether this court or the lower court is convinced 1,000 feet of buffer are "necessary," or whether smaller zones would adequately accommodate the conflicting land uses. The legal issue is whether the propriety of the larger zones is a fairly debatable question, one upon which reasonable minds could differ. "`Somewhere the line of demarcation must be drawn, and it is primarily the province of the municipal body to which the zoning function is committed to draw that line of demarcation, and it is neither the province nor the duty of courts to interfere with the discretion with which such bodies are invested in the absence of a clear showing of an abuse of that discretion.'" (Consolidated Rock Products Co. v. City of Los Angeles (1962) 57 Cal.2d 515, 533 [20 Cal. Rptr. 638, 370 P.2d 342], quoting Miller v. Board of Public Works (1925) 195 Cal. 477, 495 [234 P. 381, 38 A.L.R. 1479].)
The Ordinance was not adopted arbitrarily, but followed the presentation of information regarding the character of the affected districts and the potential conflicts between land uses thereon. The County's director of environmental services stated that, despite the staff recommendation, the Board "should and could feel very comfortable adopting a thousand feet. That would be the maximum protection." A geologist familiar with the erosion problems of the Santa Cruz Mountains opined a 1,000-foot buffer would be an important element in mitigating erosion impacts in the vicinity of residences. A resident of the Skylonda area, which she described as "a *430 residential area ... with many small lots" and "modest family homes on a suburban street," stated logging had been proposed on an RM-zoned parcel across the street from her house. She believed "[p]utting one thousand feet between my children playing in my yard and log trucks, chainsaws and slash burning is the minimum." Another homeowner in a forested area of the County spoke in favor of a large buffer zone because of the erosion "even the best kind of logging" may cause to adjacent properties in hilly areas. A representative of the Skylonda Area Association testified and presented written materials, including excerpts from a Stanford University study of logging in urban counties. This text pointed out that removing the larger trees from a redwood forest increases, rather than decreases, the fire danger, in part because it may sharply reduce the "fog drip" effect that keeps the mature redwood forest moist. The authors recommended a buffer zone of unlogged, moist redwood forest be maintained around roads and residential areas. A strip "at least" 800 feet wide is required.[16] Another speaker pointed out that at a walking pace of five miles per hour, five hundred feet could be travelled in just over a minute and one thousand feet in a little more than two minutes. As she remarked, "A fire going uphill travels with amazing speed." In light of this and other information before the Board, we conclude the adoption of a 1,000-foot buffer in non-TPZ zones, potentially affecting only about 4 percent of the County's total timberlands, was not arbitrary, unreasonable, or substantially unrelated to public health or safety. (Schroeder v. Municipal Court, supra, 73 Cal. App.3d at p. 848.) Reasonable minds may differ about the specifics, but the Board's action is based on information properly brought before it and "represents a reasonable accommodation of the competing interests." (Associated Home Builders etc., Inc. v. City of Livermore, supra, 18 Cal.3d at p. 609, fn. omitted.)
We conclude the zoning regulation is not preempted by state law and was not arbitrarily or capriciously adopted. These being the bases of the trial court's decision, its order and judgment for declaratory relief and peremptory writ of mandamus must be reversed.[17]
*431 DISPOSITION
The order and judgment of the superior court are reversed. The County shall recover its costs on appeal.
Chin, P.J., and White, J.,[*] concurred.
A petition for a rehearing was denied January 30, 1995, and respondent's petition for review by the Supreme Court was denied March 23, 1995. Mosk, J., was of the opinion that the petition should be granted.
NOTES
[1] Codified as Public Resources Code sections 4511-4628.
[2] Government Code sections 51100-51155.
[3] Government Code sections 51104, subdivision (g), 51112, 51114.
[4] Government Code sections 51101, subdivision (b), 51102, subdivision (b).
[5] Government Code section 51103.
[6] As used in county general plans, the designation "`timberland preserve zone'" is synonymous with "`timberland production zone.'" (Gov. Code, § 51104, subd. (g).)
[7] These districts were zoned resource management (RM), resource management/coastal zone, and planned agricultural district.
[8] San Mateo County Ordinance No. 3381 (hereafter the Ordinance).
[9] While not contained in the court's written order, this finding was articulated in the court's oral statement of decision.
[10] Although the record does not contain a petition for writ of mandate, the County does not contend the court erred specifically in issuing the writ. Indeed, the County agrees mandamus was the appropriate channel for review of its adoption of the Ordinance.
[11] The adoption of a zoning ordinance constitutes legislative action by the County. (Arnel Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 514, 516 [169 Cal. Rptr. 904, 620 P.2d 565].)
[12] TPZ land may be used only for growing and harvesting timber and compatible uses. "The growing and harvesting of timber on those parcels shall be regulated solely pursuant to state statutes and regulations." (Gov. Code, § 51115.) TPZ zoning creates a presumption and gives notice that timber operations are expected to occur on the parcel in the future (id., § 51115.1), and exempts such timber operations (if conducted in compliance with the FPA) from being considered a public or private nuisance (id., § 51115.5, subd. (a)).
[13] Government Code section 51112, subdivision (d). The TPA also provides for later zoning of additional land as a TPZ upon petition of the owner (id., § 51113) and for extension of TPZ status beyond the initial 10-year term (id., § 51114).
[14] Big Creek asserts that current State Board rules "prohibit timber harvesting within 200 feet of a dwelling used for human habitation." None of the regulations it cites, however, contain any such prohibition. Title 14, California Code of Regulations, sections 917.2, subdivision (c) and 917.4, subdivision (a) govern the disposal and treatment of logging slash near homes and roads in the Coast Forest District; section 928.2, subdivision (b)(2), one of several rules adopted for the County pursuant to Public Resources Code section 4516.5, requires the location of homes to be marked on timber harvesting plan maps. The remaining cited sections are similar regulations applying in other counties and forest districts.
[15] Government Code section 51115.1, subdivision (b), upon which Big Creek relies in this regard, is of no assistance to it. Subdivision (a) of section 51115.1 provides that a parcel's TPZ zoning creates a presumption that timber operations are expected to occur in the future on that property. Subdivision (b) contains a further declaration "that this section is not intended and shall not be construed as altering any substantive or procedural requirement of [the FPA or state forestry regulations]." (Italics added.) The evident purpose of the declaration is to make clear that the presumption arising from TPZ zoning does not provide an exemption from the FPA and the rules adopted pursuant to it. By its terms, the subdivision relates only to the section in which it appears, Government Code section 51115.1, and does not state, as Big Creek urges, that the TPA as a whole has no bearing on interpretation of the FPA.
[16] Although Big Creek complains these text excerpts were introduced before the Board without being "authenticated, nor were the qualifications of the authors listed," it cites no authority suggesting a board of supervisors may not consider such information in support of a legislative zoning decision. The Evidence Code does not govern such legislative hearings. (Evid. Code, § 300.)
[17] Having concluded the FPA does not expressly or impliedly preempt the Ordinance, we need not decide whether, as the County asserts, the Ordinance also falls within the FPA's savings clause for local declarations of nuisance (Pub. Resources Code, § 4514, subd. (a)) or whether the Ordinance's nuisance finding was invalidated by other provisions of state law, as Big Creek argues. Nor do we decide whether the Ordinance is in conformity with the County's general plan, an issue raised, but not decided, below and not briefed in this court.
[*] Retired Presiding Justice of the Court of Appeal, First District, sitting under assignment by the Chairperson of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/586414/ | 968 F.2d 999
1992 A.M.C. 2440, 36 Fed. R. Evid. Serv. 107
TONGIL COMPANY, LTD., Plaintiff-Appellee,v.The VESSEL "HYUNDAI INNOVATOR", Defendant,andHyundai Merchant Marine Corporation, Defendant-Appellant.
No. 91-55460.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted May 4, 1992.Decided July 9, 1992.
Williams Woolley, Cogswell, Nakazawa & Russell, Long Beach, Cal., for defendant-appellant.
Cynthia L. Stocker, Fisher & Porter, Long Beach, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before: ALARCON, NORRIS, and O'SCANNLAIN, Circuit Judges.
PER CURIAM:
1
Hyundai appeals a judgment awarding Tongil $90,606.66 for damage to its equipment, which Hyundai transported to Korea. At the bench trial, Tongil put on its case without live witnesses. Instead, it used two declarations to authenticate various business records. Hyundai objected to the admission of most of the business records as inadmissible hearsay. Hyundai also objected to the two declarations used to authenticate the business records as hearsay. The district court overruled these objections. We review the decision to admit business records as evidence for abuse of discretion. United States v. Catabran, 836 F.2d 453, 456 (9th Cir.1988).
2
Fed.R.Evid. 803(6) spells out an exception to the hearsay rule for business records.1 "The proponent of the business records must satisfy the foundational requirements of the business records exception." Catabran, 836 F.2d at 457. Tongil argues that it may satisfy Rule 803(6)'s foundational requirements at trial with hearsay declarations. We disagree.
3
Rule 803(6) explicitly provides that the foundational requirements must be "shown by the testimony of the custodian or other qualified witness." Tongil has cited no authority, and we have found none, for the proposition that hearsay may be used to lay this foundation. Tongil's reliance upon Zenith Radio Corp. v. Matsushita Electric Industrial Co., 723 F.2d 238 (3d Cir.1983), rev'd on other grounds, 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), is misplaced because it is a summary judgment case. FDIC v. Staudinger, 797 F.2d 908, 910 (10th Cir.1986), on which Tongil also relies, is inapposite because the custodian of records was present in court and gave live testimony.
4
We hold that the district court erred in permitting the declarations to be used to lay the foundation for the admission of hearsay under Rule 803(6) because the declarations are hearsay and do not fall under any exception to the hearsay rule. Because Tongil's entire case was built upon records that were improperly admitted on the basis of inadmissible hearsay declarations, we reverse and remand for a new trial. We need not reach the other issues raised by the parties.
5
REVERSED and REMANDED.
1
Rule 803 provides:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
....
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1334679/ | 241 Ga. 572 (1978)
247 S.E.2d 89
FULTON-DeKALB HOSPITAL AUTHORITY
v.
GAITHER.
33249.
Supreme Court of Georgia.
Argued April 10, 1978.
Decided July 6, 1978.
Rehearing Denied July 20, 1978.
Jones, Bird & Howell, F. M. Bird, Eugene T. Branch, Alexander E. Wilson, Jr., Arthur Howell, III, for appellant.
White & Jewett, Robert John White, C. Lawrence Jewett, for appellee.
BOWLES, Justice.
Certiorari was granted in this case to determine the application of the Workmen's Compensation Act (Code Ann. § 114-101 et seq) to local hospital authorities.
Respondent, an employee of the petitioner hospital authority, suffered an on-the-job injury. She received full pay and free medical services for several months following her injury under FDHA's on-the-job injury program. *573 When her doctors under the program pronounced her fit to return to work, respondent terminated her treatment at the hospital and filed a claim against FDHA with the State Board of Workmen's Compensation. FDHA filed a timely objection and moved to dismiss the claim on the ground that it was not an employer under the Workmen's Compensation Act, Code Ann. § 114-101, and that the board lacked jurisdiction to hear the claim.
The administrative law judge granted FDHA's motion to dismiss. Fulton County Superior Court affirmed the dismissal. On appeal, the Court of Appeals reversed the judgment of the superior court, finding that the legislature, by amendments to Code Ann. § 114-101 in 1970 (Ga. L. 1970, p. 235) and 1975 (Ga. L. 1975, p. 190), broadened the coverage of Title 114 by expanding the scope of the term "employer" to include local hospital authorities.
The 1970 amendment to Code Ann. § 114-101 added the phrase "instrumentalities and authorities" of the state to the definition of employer. The Court of Appeals found that local hospital authorities, while not state authorities, were instrumentalities of the state and are to be treated as employers under the workmen's compensation law. We disagree.
Local hospital authorities created under the authority of the Hospital Authorities Law, Code Ann. § 88-1801 are local, not state, instrumentalities. The State Constitution empowers counties to operate in the sphere of health care and to utilize local hospital authorities as their own county instrumentalities. Code Ann. §§ 2-6301, 2-6102.
Pursuant to these constitutional provisions and pursuant to a special amendment to Art. VII, Sec. VII, Par. I of the Constitution of 1877 (Ga. L. 1943, p. 18 et seq.; Code Ann. § 2-7002), FDHA entered into a contract with Fulton and DeKalb counties in 1945 whereby the hospital authority acquired and was to operate Grady Memorial Hospital as an instrumentality of Fulton and DeKalb counties. Because under the Constitution and under its contract with Fulton and DeKalb counties the hospital authority is an instrumentality of the county and not of the state, it is not covered by the workmen's compensation *574 law under its definition of "employer" as a state instrumentality.
Prior to the 1975 amendment, Code Ann. § 114-101 defined an employer to include "any individual, firm, association or corporation engaged in any business operated for gain or profit." Under that law, a local hospital authority was found not to be an employer under the workmen's compensation law. Richmond County Hospital Authority v. McClain, 112 Ga. App. 209 (144 SE2d 565) (1965). As amended, the words "operated for gain or profit" were deleted so that an employer is now defined to include "any individual, firm, association or corporation engaged in any business."
When Section 101 read "corporation engaged in any business for gain or profit," it included by definition only the profit-making private business corporation as provided for in Part I, Title 22 of the Georgia Business Corporation Code. Code Ann. § 22-102 (a). The deletion of the words "operated for gain or profit" broadened the coverage of Section 101's definition of employer to include private non-profit corporations as provided for in Part II, Title 22 of the Georgia Business Corporation Code. Code Ann. § 22-2101 et seq.
Section 101's definition of employer does not include all corporations, but specifies corporations engaged in any business are those to which the Workmen's Compensation Act applies. To ignore the important modifying phrase "engage in any business" would distort the meaning of the statute. "Courts should not so interpret a statute as to make parts of it surplusage unless no other construction is reasonably possible. All words of the Legislature, however numerous, ought to be preserved, and effect given to the whole, if it can be done. Smith v. Davis, 85 Ga. 625, 631 (11 SE 1024) [1890]; Hicks v. Smith, 94 Ga. 809, 815 (22 SE 153) [1894]." Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739, 743 (152 SE2d 768) (1966).
We conclude that "corporations engaged in any business" includes only those corporations governed by the Georgia Business Corporation Code. Hospital authorities are not governed by either section of the Georgia Business Corporation Code, but are expressly exempted therefrom. Code Ann. §§ 22-103, 22-2103. A *575 hospital authority is a "public body corporate and politic." Code Ann. § 88-1803. They are public corporations having for their object the administration of a portion of the powers of government delegated to it, and are not business corporations.
The 1975 amendment to Code Ann. § 114-101 eliminated the exempted status for nonprofit business corporations under Title 22 and made the workmen's compensation law apply to them as it does to profitmaking corporations as set forth in Part I of Title 22. It did not by its language include authorities or other public corporations, and absent an express extension of coverage we will not presume that the legislature intended to effect such a change.
The lower court was correct in finding that a local hospital authority is not covered under the workmen's compensation law and in dismissing the case against FDHA.
Judgment reversed. All the Justices concur, except Jordan, J., who concurs in the judgment only, and Nichols, C. J., and Hall, J., who dissent. Hill, J., disqualified.
HALL, Justice, dissenting.
The most basic rule of the Workmen's Compensation Act is that it shall be liberally construed. The "... words of the statute... must be construed reasonably and liberally with a view of applying the beneficent provisions of the statute so as to effectuate its purposes, and to extend them to every class of workman and employee that can fairly be brought within the provisions of the Act." Lee v. Claxton, 70 Ga. App. 226, 228 (28 SE2d 87) (1943).
*576 I submit that the majority opinion gives the Act a very narrow and mechanical interpretation which is the antithesis of legal realism. The Court of Appeals' opinion in Richmond County Hospital Authority v. McClain, 112 Ga. App. 209 (144 SE2d 565) (1965) conceded that there was no logical reason why hospital authorities should not be covered, and called upon the legislature to remedy the matter. One commentator's explanation for the court's failure to hold authorities to be subdivisions of the state was that it "might endanger their basic purpose of borrowing funds without violating the constitutional limitations on public indebtedness." Field, Workmen's Compensation, 22 Mer. L. Rev. 413, 415-416 (1971). By various amendments, compensation coverage at the time of the McLain decision had been extended "... among public employees, to leave only the employees of public authorities unprotected." Field, Workmen's Compensation, 19 Mer. L. Rev. 220, 221 (1968).
In 1970, the legislature added language to include as employers "instrumentalities and authorities" of the state. Ga. L. 1970, p. 235. This can only mean that the legislature by this amendment intended to include the only class of public employees who were unprotected. It requires no liberality of construction to reach this result. As noted by the Court of Appeals, these authorities were created by the General Assembly and are similar to a local housing authority which has been held by this court to be "an instrumentality of the State..." Knowles v. Housing Authority of Columbus, 212 Ga. 729, 730 (95 SE2d 659) (1956); Culbreth v. Southwest Ga. Housing Authority, 199 Ga. 183, 189 (33 SE2d 684) (1945).
I agree with the Court of Appeals that the 1975 Amendment also includes hospital authorities. Ga. L. 1975, p. 190. It covers "any ... corporation engaged in any business."[1] The majority opinion adds the following *577 additional qualifying language, "corporations governed by the Georgia Business Corporation Code Chapter 22 et seq." I cannot find this language in the Act as written by the General Assembly.
I am authorized to state that Chief Justice Nichols joins in this dissent.
NOTES
[1] The words "any business" are also found in our long arm statute. Code Ann. § 24-113.1. This court has held that the words cover "the maximum extent permitted by procedural due process." Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60 (195 SE2d 399) (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334657/ | 146 Ga. App. 887 (1978)
247 S.E.2d 554
HIBBERT
v.
THE STATE.
56028.
Court of Appeals of Georgia.
Argued May 23, 1978.
Decided July 3, 1978.
Rehearing Denied July 28, 1978.
Howard, Cook & Mullinax, Charles A. Mullinax, for appellant.
M. Randall Peek, District Attorney, Robert E. Wilson, Assistant District Attorney, for appellee.
BELL, Chief Judge.
Defendant was convicted of burglary. The indictment charged that defendant without authority and with intent to commit theft entered a certain drugstore.
The state's witnesses established that defendant was observed during the evening hours inside a drugstore that was closed; that he exited the building by crashing through a front plate glass window; and that he had no authority to enter the building. Defendant testified that after becoming intoxicated he entered the pharmacy through an opening in a window; that after realizing he had no right to be in the building he panicked and ran through the front window. He denied that he had any intent to steal while inside the pharmacy. The jury returned a guilty verdict. On appeal, error is asserted because of the failure of the court to give several written requests to charge. Held:
1. The trial court refused to charge on the lesser crime of attempted burglary and on the affirmative defense of abandonment. There was no error. Defendant denied entering the building with an intent to commit theft. Absent any evidence of this intent, he could not be found guilty of either burglary or attempted burglary, for this frame of mind is an essential element of both crimes. See Code §§ 26-1002 and 26-1601. Likewise, the defense of abandonment was not raised. It would only be pertinent if defendant's conduct otherwise constituted an attempt to commit burglary and then he voluntarily renounced his criminal purpose. Code § 26-1003.
2. The court refused to charge on the definition of a *888 felony. The trial court defined burglary for the jury in the terms stated in Code § 26-1601 which included the phrase "with intent to commit a felony or theft therein." The indictment charged the defendant with an unlawful entry with intent to commit theft therein. Accordingly, the reference to the intent to commit a felony was not material to the indictment here and was mere surplusage in the charge. The trial court was not required to further define the term felony. See Smith v. State, 130 Ga. App. 390 (1) (203 SE2d 375).
3. Defendant in his brief argues the failure to give his request to charge on voluntary intoxication. However, he has not enumerated as error this failure to charge. We have no jurisdiction to consider this ground even though argued. Calhoun v. Patrick, 116 Ga. App. 303 (157 SE2d 31).
Judgment affirmed. Shulman and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
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