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https://www.courtlistener.com/api/rest/v3/opinions/2263386/ | 31 Cal.App.4th 77 (1994)
37 Cal. Rptr.2d 457
MARIE SMITH, Plaintiff and Appellant,
v.
ACANDS, INC., et al., Defendants and Appellants.
Docket No. A059312.
Court of Appeals of California, First District, Division One.
November 23, 1994.
*82 COUNSEL
Bryce C. Anderson, Brayton, Gisvold & Harley and Philip A. Harley for Plaintiff and Appellant.
Kazan, McClain, Edises & Simon and David M. McClain as Amici Curiae on behalf of Plaintiff and Appellant.
St. Peter & Cooper, M. Armon Cooper, Jerome C. Dougherty Jennifer M. Ways, Sedgwick, Detert, Moran & Arnold, Roger D. Rizzo and Frederick D. Baker for Defendants and Appellants.
Michael J. Brady, Kathryn C. Curry, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Pillsbury, Madison & Sutro, Walter R. Allan and Robert C. Phelps as Amici Curiae on behalf of Defendants and Appellants.
OPINION
STRANKMAN, P.J.
August G. Smith (Smith) worked as a pipe fitter for 30 years, his work often exposing him to asbestos dust. Smith retired with good health in 1971 at the age of 67. Twenty years later, in 1991, Smith became ill and was diagnosed with the respiratory afflictions of asbestosis and asbestos-related pleural disease.
Smith and his wife, Marie, brought this action for damages against scores of asbestos manufacturers, asbestos installers, premises owners and others. Many defendants settled and trial proceeded with only two defendants. A jury returned a special verdict in favor of Smith and against ACandS, Inc. (ACandS), an asbestos insulation contractor, and Pacific Gas and Electric Company (PG&E), a utility company that built power plants using asbestos insulation.
The jury found ACandS and PG&E negligent and negligent per se for violating industry safety orders. ACandS was also held strictly liable for supplying asbestos products and PG&E held vicariously liable for hiring asbestos insulation contractors whose work created a peculiar risk of harm to others. Smith was awarded $590,100, including $400,000 in noneconomic damages. Apportioning fault for Smith's injuries, the jury allocated 10 percent to ACandS and 5 percent to PG&E. But the trial court declined to apply Civil Code section 1431.2, enacted as Proposition 51 in 1986 to require fault apportionment of noneconomic damages.
ACandS and PG&E appeal, challenging the sufficiency of the evidence, evidentiary rulings, jury instructions, and the court's refusal to allocate *83 noneconomic damages according to each defendant's fault. Smith died pending appeal, and his widow advances their cross-appeal disputing a nonsuit of claims for punitive damages and loss of consortium.
We find insufficient evidence of Smith's exposure to ACandS-installed asbestos insulation and reverse the judgment with directions to enter judgment in favor of ACandS. Instructional and evidentiary trial errors entitle PG&E to a new trial. The jury was improperly instructed to regard PG&E as presumptively negligent if it violated industrial safety orders setting standards for asbestos dust when there was no proof that PG&E was an employer subject to the safety orders. Prejudice attending the instructional error was exacerbated by the erroneous admission of expert testimony extrapolating excessive asbestos concentration levels from photographs of unspecified work sites at PG&E plants. These errors associated with proving PG&E's negligence per se prejudiced the trial as a whole. Additionally, a recent decision of our high court redefining the doctrine of peculiar risk mandates the conclusion that PG&E was improperly held vicariously liable for injuries to Smith, a hired contractor's employee. Since we reverse the judgment, we do not reach ACandS's and PG&E's demand for fault apportionment of noneconomic damages nor Smith's cross-appeal.
I. STATEMENT OF FACTS
A. The Nature of Asbestos
Asbestos is a mineral which is fibrous once mined and extracted from rock. Asbestos' strength and heat resistance made it attractive for use in construction materials such as pipe insulation. The hazards of asbestos gradually became known, and it is now undisputed that long-term asbestos inhalation causes various diseases. Remaining for dispute, although peripheral to this appeal, is the question of when the health hazards of asbestos first became known. Smith maintains that the danger of asbestos exposure was medically confirmed in the 1930's. Defendants say the danger was not commonly understood until the 1970's.
B. Smith's Occupational Exposure to Asbestos
Smith, born in 1904, began working as a pipe fitter at the Richmond shipyard in the 1940's during World War II, fitting and installing pipes on board ships. As a pipe fitter on ships, Smith worked near insulators and the air quality was sometimes "pretty bad." With the exception of a few years immediately after the war, Smith remained a pipe fitter until his retirement with good health at age 67 in 1971. During his 30-year career, Smith was *84 dispatched by his union and employers to work at various sites, laboring near asbestos insulators and handling asbestos gaskets when replacing pipes.
(1) PG&E Jobsites
In the early 1950's, Smith worked for a year and a half to two years on the construction of PG&E power plants in Pittsburg and Antioch. Smith also worked at those PG&E plants on projects in the early 1960's. Smith described the air at those power plants as "pretty nasty," with "a lot of stuff blowing in the air, dust and stuff, like asbestos stuff." In addition to working near insulators, Smith also put insulation on turbine pipes in his job as a pipe fitter.
A pipe fitter who worked alongside Smith at the Pittsburg PG&E plant in the early 1960's explained the close quarters shared with insulators and a pipe fitter's repeated exposure to asbestos insulation, since all steam pipes are insulated. At Pittsburg, insulation dust was visible in the air many times and, as a shop steward, the pipe fitter received weekly complaints from others about the dust.
A boilermaker who worked on the construction of the PG&E plants testified that asbestos insulation work was performed as soon as boilers and pipes were in place, and was carried on while pipe fitters and other trades people were nearby. The boilermaker likened the wind-swept asbestos materials to a "Kansas dust storm."
The boilermaker's testimony was corroborated by Wayne Kelly, an asbestos insulator employed in the construction of the PG&E Antioch plant. Kelly testified that he believed all insulation materials used at the Antioch plant contained asbestos and that asbestos dust floated in the air during construction. The insulators worked within five to ten feet of pipe fitters, and no workers were provided dust protective gear. Kelly had also worked at the PG&E Pittsburg plant and said the working conditions were similar to Antioch, and that the conditions at both plants remained unchanged through the early 1960's.
Kelly was shown photocopies of two black-and-white photographs depicting exposed pipes, scaffolding and floors splotched with white and asked if they represented work conditions at the PG&E Antioch plant during its construction in the late 1940's and early 1950's. Kelly responded that the pictures were "[v]ery representative of our particular trade work, and the mess we caused" and depicted the "general appearances" of insulation work. Another asbestos insulator, Robert Cuthbertson, testified that he worked on *85 the construction of the PG&E Antioch plant in the early 1950's and exhibits Nos. 32 and 33 accurately depict the "general working environment" at that time. Smith said exhibit No. 32 represented what the PG&E work sites looked like "at times" and that he worked in conditions "similar" to those depicted in exhibit No. 33.
An industrial hygienist, Kenneth Cohen, opined that working conditions represented in exhibits Nos. 32 and 33 would produce an asbestos level exceeding threshold limits established by an association of industrial hygienists in 1946 and promulgated as "maximum acceptable concentrations" in a California agency's industry safety orders from 1949 to 1964. Cohen also testified that asbestos is not visible at low concentrations so that sustained dust in the air following asbestos work indicates that the established limit was "exceeded dramatically."
(2) ACandS Insulation at Jobsites
ACandS is an industrial insulation contractor.[1] ACandS supplies and installs insulation materials according to customer specifications. Evidence of Smith's exposure to ACandS supplied insulation materials was circumstantial, based largely on evidence that Smith and ACandS were employed at the same job sites.
The evidence focused on the Richmond refinery of Standard Oil (today's Chevron). Smith testified that he worked at the Standard Oil refinery, "probably close to ten times" from about 1947 through the late 1960's. Smith could not remember the names of any insulation companies on the jobs he worked at the Standard Oil refinery. A comparison of Smith's union dispatch slips and ACandS contract logs shows that, at most, ACandS installed insulation somewhere within the Standard Oil Refinery on two occasions when Smith was working at the refinery in 1959 and 1964. The maximum time ACandS and Smith both could be at the refinery was about four months. The refinery is "a mammoth," covering many acres and containing miles of piping.
In testifying about refinery work in general, Smith explained that he worked near insulation contractors, including "Armstrong," and the air in refineries was sometimes "pretty bad," with "stuff flying all over the air." Smith conceded that his work at the Standard Oil refinery was all or mostly *86 outdoors and that one does not inhale as much insulation materials as when working in enclosed areas, such as on board ships.
Robert Cantley, an ACandS insulator from 1957 to 1967, worked intermittently at the Standard Oil refinery on about six different projects. ACandS installed insulation to the specifications of Standard Oil. Cantley worked "right next" to pipe fitters as he installed asbestos installation. There was visible dust in the air; Cantley said one looked "like a snowman" from the dust.
C. Asbestos Diseases
Asbestos inhalation causes various diseases. A pathologist testified that every asbestos disease is dose related: the more asbestos a person inhales, the higher the risk of disease. But while asbestos exposure heightens risk of disease, not everyone who is exposed to asbestos becomes diseased. However, a majority of those subjected to repeated, occupational asbestos exposure develop some disease. As a group, pipe fitters are at risk of developing asbestos diseases.
Asbestosis and asbestos-related pleural disease are respiratory, non-cancerous diseases caused by asbestos inhalation. Asbestos dust contains billions of microscopic asbestos fibers. Asbestosis develops when asbestos fibers are inhaled into the lung and cells of the body respond to the presence of the foreign matter by engulfing the fibers, leading to inflammation and formation of scar tissue. Healthy tissue is destroyed and replaced by scar tissue, disrupting the lung's function of oxygenating blood. Asbestos pleural disease is scarring of the pleura, or lung lining, caused by asbestos and is a condition separate from asbestosis, which concerns damage to lung tissue itself.
There is usually a minimum 15-year latency period from the time of first exposure until asbestos pleural disease is clinically identifiable. Likewise, asbestosis has an average minimum 20-year latency period before the disease is diagnosable. The latency period between exposure and diagnosis of an asbestos disease may be as long as 50 years. During "latency," the body is reacting to the inhaled fibers. By the time asbestosis is clinically manifest, there has already been damage to the lung inhibiting its function. Medical reports estimate that 20 percent to 50 percent of the lung is scarred and dysfunctional before asbestosis is discernible on X-rays.
D. Smith's Medical History
Smith's treating physician since 1989, Dr. Ray, reviewed medical records and described Smith's various medical problems over the years problems *87 both related and unrelated to asbestos exposure. Respiratory problems were first recorded in the late 1970's and early 1980's, when evidence of pleural disease affecting the lining of the lungs was noted by Smith's physician. Beginning in the mid-1980's, Smith suffered episodes of chronic obstructive pulmonary disease (C.O.P.D.) which Dr. Ray attributes to Smith's history of smoking and an "asthmatic like" feature of his lungs. Smith smoked for about 35 years before quitting in 1956.
Asbestosis and asbestos pleural disease were not diagnosed until a lung biopsy was performed in 1991. In December 1991, Smith was hospitalized with a respiratory infection. Dr. Ray was concerned that Smith might have mesothelioma (asbestos cancer) but a lung biopsy found no malignancy. However, the biopsy revealed asbestos pleural disease.
Dr. Ray characterized Smith's lung problems at the time of trial as moderately severe C.O.P.D., mild asbestosis, and severe asbestos pleural disease. A pathologist confirmed that Smith had pleural fibrosis caused by asbestos and asbestosis and testified that Smith had "an astronomical number" of asbestos bodies in his lung tissue. Smith had great difficulty breathing and was administered oxygen around the clock since his December 1991 hospitalization. Dr. Meyers, a pulmonologist called by PG&E, agreed with Dr. Ray's diagnosis of C.O.P.D., mild asbestosis, and asbestos pleural disease. But Dr. Meyers attributed Smith's symptoms to his C.O.P.D., and not the asbestos diseases.
II. DISCUSSION
A. There Was Insufficient Evidence of Smith's Exposure to ACandS-Installed Asbestos Insulation
ACandS submits there is insufficient evidence of causation because there is only slight circumstantial evidence that Smith was exposed to ACandS-installed asbestos materials, and any exposure was not a substantial factor in causing Smith's asbestos diseases. (1) We agree that the evidence of Smith's exposure to ACandS-installed materials is so slight and tenuous as to demand reversal and so do not address ACandS's other challenges to the judgment.
Under the most generous construction, the evidence shows only that ACandS might have installed insulation somewhere within the Standard Oil Refinery on two occasions when Smith might have been working at the refinery in 1959 and 1964. It is not certain that Smith and ACandS were ever at the refinery at the same time.
*88 Smith was unable to say if he ever worked at the Standard Oil Refinery with ACandS insulators. Smith remembered fitting pipe at the refinery, but had no recollection of the dates he worked. Smith's union dispatch slips were used to provide this information, but the slips give an incomplete picture. The union dispatch slips show the dates Smith was dispatched to various jobs, but do not show the number of days he worked at each job site, or the last day of work. Smith was dispatched to the Standard Oil Refinery on two relevant occasions: November 4, 1958, and January 15, 1964. We do not know the completion date of these two projects, but can only say that Smith's November 1958 work ended by June 1959 and his January 1964 work ended by August 1964 these approximations derive from the fact that Smith was dispatched to other jobsites at those times. But the dates are wild approximations, because Smith occasionally had prolonged periods of time between jobs, the longest period being four or five months. The evidence simply does not establish the exact time Smith worked at the Standard Oil Refinery.
This failure of evidence becomes critical when combined with the inadequate proof of ACandS's presence at the refinery. Cantley, an ACandS insulator from 1957 to 1967, testified that he worked intermittently at the Standard Oil refinery on about six different projects. But proof of ACandS's presence at the refinery at specific times rested upon company business records, which showed that ACandS entered into contracts to work at the Standard Oil Refinery. As relevant here, two contract dates were February 11, 1959, and August 3, 1964. The contract dates are the dates of contract execution, not contract performance, and so do not establish when ACandS actually installed asbestos installation at the refinery.
If we assume that ACandS started work on the day of contract execution and continued indefinitely and that Smith worked without stopping between jobs, we find that ACandS and Smith both worked at the Standard Oil Refinery for four months, February 11, 1959, to June 4, 1959, and August 3, 1964, to August 12, 1964. But assuming ACandS to begin work on the day of contract execution is at odds with common sense, and assuming Smith to work incessantly is at odds with his own testimony of occasional breaks between assignments. If we discard these assumptions, and we must, only conjecture could lead to a conclusion that Smith and ACandS were at the refinery at the same time. And nothing within reason could lead to the conclusion that Smith was anywhere near ACandS when it installed asbestos materials there. The Standard Oil Refinery is a sprawling complex "a mammoth," in the words of one of Smith's witnesses.
The evidence of exposure to ACandS-installed asbestos materials outside of the Standard Oil Refinery is even thinner. In testifying about refinery *89 work in general, Smith said he worked near insulation contractors, including "Armstrong." Smith did not explain whether he meant ACandS (Armstrong Contracting and Supply Corporation) or the distinct entity of Armstrong Cork Company. This ambiguous and bare testimony cannot support a verdict against ACandS. Nor is the verdict supported by evidence highlighted on appeal that Cantley, an ACandS insulator, worked at PG&E's Antioch power plant in the early 1960's a time at which Smith was also employed at the plant. Cantley testified that he worked at the plant, but could only "guess" that his work occurred "about the timeframe" of 1963 or 1964 and, most significantly, his work was on the smoke stack, not the main facility where Smith was employed.
We appreciate the difficulty of proving exposure to a particular defendant's products or activities in cases of latent diseases where memory-dulling decades can intervene between toxic exposure and prosecution of an action for damages. Nevertheless, even under the most lenient causation standards, there must be proof that the defendant's asbestos products or activities were present at plaintiff's work site. (E.g., Lockwood v. AC & S, Inc. (1987) 109 Wn.2d 235 [744 P.2d 605].) Here, only rank speculation, not reasonable inferences, could support a conclusion that Smith was exposed to ACandS-installed asbestos materials. Lacking proof of causation, all of Smith's claims against ACandS fail. ACandS's motion for judgment notwithstanding the verdict was wrongly denied.
B. The Jury Was Erroneously Instructed That a Violation of Industrial Safety Orders Rendered PG&E Presumptively Negligent
(2a) PG&E was found negligent per se for violation of California industry safety orders of 1947 through 1964 which set standards for the prevention of harmful exposure of employees to asbestos dust.[2] PG&E maintains that the trial court erred in admitting the safety orders and instructing on negligence per se, and that those errors also taint the jury's finding of general negligence.
A person is rebuttably presumed to have failed to exercise due care if "(1) He violated a statute, ordinance, or regulation of a public entity; [¶] (2) The violation proximately caused death or injury to person or property; [¶] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [¶] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation *90 was adopted." (Evid. Code, § 669, subd. (a).) Violation of safety orders promulgated under the authority of California's Labor Code, as here, is within the presumption accorded by Evidence Code section 669. (Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal.3d 361, 366-367 [99 Cal. Rptr. 29, 491 P.2d 821].)
The pressing question is whether the safety orders were properly used to establish the liability of PG&E, a premises owner rather than an employer of Smith. PG&E says the admission was error, resting the crux of its assertion on the rule that Labor Code safety provisions and derivative safety orders may not be used in any personal injury or wrongful death action arising after April 1, 1972, except as between an employee and his own employer. (Lab. Code, § 6304.5; Salinero v. Pon (1981) 124 Cal. App.3d 120, 129-131 [177 Cal. Rptr. 204].) PG&E maintains that the action arose in 1991, the year Smith discovered his injury by being diagnosed with an asbestos disease. Smith says the action arose in the early 1950's, when Smith was exposed to asbestos at PG&E power plants. We have no need to decide when this action "arose" within the meaning of Labor Code section 6304.5 which precludes use of safety orders in third party actions because the jury was improperly instructed to rely upon the orders even under the law preexisting the statute's passage.
Under preexisting law, "employer" was defined to include "every person having direction, management, control, or custody of any ... place of employment" and "place of employment" meant any place where employment was carried on. (Stats. 1937, ch. 90, §§ 6302, 6304, p. 306.) Under these broad concepts, premises owners were sometimes found to be employers and held accountable under the Labor Code's safety standards for injuries sustained by an independent contractor's employee working on the premises. (See Kuntz v. Del E. Webb Constr. Co. (1961) 57 Cal.2d 100, 106-107 [18 Cal. Rptr. 527, 368 P.2d 127] [reviewing case law].) But Smith is mistaken in arguing that safety orders were "routinely" applied in construction negligence actions against owners.
Owners were obligated to comply with safety orders only if they were found to be a statutory employer with "`direction, management, control, or custody of any ... place of employment.'" (Stanford v. City of Ontario (1972) 6 Cal.3d 870, 877-878 [101 Cal. Rptr. 97, 495 P.2d 425].) While every premises owner has ultimate "control and custody" of his property, the statutory definition of "employer" was not applied with such literal breadth as to encompass every owner within its perimeters. (Ibid.) Instead, Labor Code safety regulations were applied to owners in limited situations, such as where independent contractors or their employees were injured by the *91 owner's operation of machinery, direction of work performance, or creation of dangerous conditions. (See Kuntz v. Del E. Webb Constr. Co., supra, 57 Cal.2d at pp. 106-107 [reviewing case law].) Owners were not held accountable for dangerous conditions created by an independent contractor's work or the contractor's use of hazardous equipment and materials. (E.g., Deorosan v. Haslett Warehouse Co. (1958) 165 Cal. App.2d 599, 616-618 [332 P.2d 422].)
Here, Smith seeks to subject PG&E to safety orders establishing maximum acceptable concentrations of asbestos dust. But it is undisputed that the dust was caused by insulation contractors' installation of asbestos materials, not by any activities of PG&E. Smith says PG&E is nevertheless bound by the safety orders because it "took an active role in supervising the various aspects of construction and maintenance" of the power plants. As evidence of PG&E's "close supervision" of insulation work, Smith only points to specifications issued by PG&E in soliciting proposals for insulating the Pittsburg power plant. The specifications provide that the contractor is to comply with all safety regulations and eliminate hazards to its own and other workers and that all work is subject to general supervision and inspection by PG&E. Apparently, Smith believes that PG&E's expressed interest in compliance with safety orders and supervision of construction rendered it a statutory employer responsible for furnishing a safe place of employment under the Labor Code's dictates. Smith is wrong.
The Labor Code "should not be construed as meaning that, where a general contractor or owner of premises does nothing more with respect to the work done by an independent contractor than exercise general supervision and control to bring about its satisfactory completion, it is his responsibility to assure compliance with all applicable safety provisions of the code and regulations issued thereunder, including those relating to the manner in which the independent contractor performs operative details of the work not affecting its ultimate result." (Kuntz v. Del E. Webb Constr. Co., supra, 57 Cal.2d at p. 106.) (3) The "right to see that work is satisfactorily completed does not impose upon one hiring an independent contractor the duty to assure that the contractor's work is performed in conformity with all safety provisions...." (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 257 [66 Cal. Rptr. 20, 437 P.2d 508], citation omitted.) As a matter of law, general supervision of an independent contractor's work, without direction of operative detail, does not make an owner a statutory employer bound by safety regulations of the Labor Code. (Stanford v. City of Ontario, supra, 6 Cal.3d at p. 878.) And an owner's demand that the independent contractor comply with safety regulations does not make the owner a guarantor that the regulations are, in fact, respected. (See ibid.)
*92 (2b) There is no evidentiary basis for regarding PG&E as a statutory employer bound by the safety orders and thus the jury was improperly instructed to find PG&E presumptively negligent if it violated the orders. The court did not even charge the jury with determining if PG&E was a statutory employer, but effectively directed the jury to regard defendants as employers.
Smith has anticipated that we might fault the instruction on negligence per se, and argues that the judgment against PG&E can be affirmed on his theory of general negligence. We are unpersuaded. In the special verdict, the jury first determined, on the basis of an improper instruction, that PG&E violated safety orders and was negligent as a matter of law. Only after making that determination was the jury asked if PG&E was generally negligent in "the management or maintenance of the premises...." It is inconceivable that this latter determination of general negligence was unaffected by the court's error in submitting the negligence per se claim to the jury. (See Kuntz v. Del E. Webb Constr. Co., supra, 57 Cal.2d at pp. 105-107 [reversing judgment where sufficient evidence of general negligence but improper instructions on negligence per se].) Moreover, as discussed immediately below, an evidentiary error associated with this instructional error demands reversal of the judgment against PG&E.
C. Expert Testimony Extrapolating Asbestos Concentration Levels From Photographs of Working Conditions Was Improperly Admitted
(4a, 5a) PG&E claims the trial court erred in admitting photographs representing work conditions at the Antioch plant and permitting expert testimony extrapolating the amount of asbestos dust from the scenes depicted.[3] We are satisfied that a sufficient foundation was laid to permit introduction of the photographs in evidence, but agree that the expert's testimony should have been excluded.
(4b) As to authentication of the photographs, we appreciate the force of PG&E's argument that no one testified to the exact dates and places portrayed. However, several witnesses who worked at the Antioch plant testified that the pictures represented working conditions there during its construction in the early 1950's. On this record, we cannot say the trial court abused its discretion in admitting the photographs as illustrative evidence.
(5b) The court's error lies not in the initial acceptance of the photographs in evidence, but in permitting an expert to rely upon them in opining *93 that asbestos dust levels were excessive. As discussed earlier, Cohen, an industrial hygienist, said working conditions represented in the photographs would produce an asbestos level exceeding threshold limits established by an association of industrial hygienists and issued in the industry safety orders Smith used to establish negligence per se. More specifically, Cohen testified that asbestos levels would be between five and twenty-five fibers per cubic centimeter during work activities producing asbestos residue as depicted in the pictures. His opinion was based on air monitoring done in other situations where "asbestos residue has appeared similarly." Cohen proceeded to testify that if working conditions at PG&E power plants in the 1960's were "essentially the same" as those revealed in the photographs from years earlier, then asbestos concentration levels were exceeded at that time as well.
An expert's testimony must be based on matters upon which he may reasonably rely. (Evid. Code, § 801.) Conjecture and speculation provide no proper basis for an expert's opinion. (Hyatt v. Sierra Boat Co. (1978) 79 Cal. App.3d 325, 338 [145 Cal. Rptr. 47].) Reliance on old black-and-white photographs to deduce specific concentration levels of asbestos in the air is highly suspect. As Cohen himself testified, the scientific standard for measuring asbestos levels is to filter air through a membrane and use an electron microscope to magnify the membrane to count the retained asbestos fibers. Even that technique permits only an estimate of asbestos levels and a great deal of variability attends the results. We are unpersuaded that one can extrapolate accurate asbestos concentration levels from the messy appearance of asbestos materials at a work site. Certainly, no foundation was laid that industrial hygienists reasonably rely upon photographs to assess asbestos levels.
Smith argues that any error in admitting Cohen's extrapolations from the photographs was harmless because that testimony was insignificant and cumulative when weighed with his testimony as a whole. It is true that Cohen also testified, without objection, that asbestos is not visible at low concentrations, so that witness descriptions of sustained dust in the air following asbestos work indicates that the established safety limit was "exceeded dramatically." However, the quantification of asbestos concentration levels as between five and twenty-five fibers per cubic centimeter was based exclusively upon the photographs and was devastating evidence. In any event, expert testimony of asbestos levels violative of industry safety standards coupled with an erroneous charge to the jury that PG&E was bound by the safety standards was clearly prejudicial.
*94 D. A Landowner Who Hires Several Independent Contractors to Work Simultaneously on a Project on Its Land Is Not Vicariously Liable Under the Doctrine of Peculiar Risk for the Negligence of Any of the Hired Contractors Which Injures Any of the Contractors' Employees
In addition to finding PG&E itself at fault for Smith's asbestos injuries, the jury also found PG&E vicariously liable under the peculiar risk doctrine. (6) As our Supreme Court recently explained, "[u]nder the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor's negligent performance of the work causes injuries to others." (Privette v. Superior Court (1993) 5 Cal.4th 689, 691 [21 Cal. Rptr.2d 72, 854 P.2d 721].) A peculiar risk is "neither a risk that is abnormal to the type of work done, nor a risk that is abnormally great; it simply means `"a special, recognizable danger arising out of the work itself."' [Citations.]" (Id., at p. 695.) Here, liability hinged on PG&E's hiring asbestos installation contractors when it knew, or should have known, that the work was likely to create a peculiar or special risk of bodily harm to others on the premises.
Following trial and entry of judgment in this case, our Supreme Court issued a decision narrowing the boundaries of the doctrine of peculiar risk. In Privette v. Superior Court, supra, 5 Cal.4th 689, 692, 702, the court reversed judgment in favor of a roofing contractor's employee who sued a landowner for injuries from falling off a ladder while tarring the landowner's roof. The court observed that, originally, "the doctrine of peculiar risk made a landowner liable to innocent bystanders or neighboring property owners who were injured by the negligent acts of an independent contractor hired by the landowner to perform dangerous work on his or her land.... [¶] Gradually, the peculiar risk doctrine was expanded to allow the hired contractor's employees to seek recovery from the nonnegligent property owner for injuries caused by the negligent contractor." (Id., at p. 696.) The court renounced that expansion. In explaining its disavowal of the expanded doctrine of peculiar risk which encompassed injured employees of a hired contractor, the court said the expanded doctrine frustrated goals of workers' compensation statutes which provide benefits to injured workers, and the broad extension of the doctrine was inconsistent with the majority view. (Id., at pp. 701-702.)
Smith recognizes the significance of Privette, but argues that it does not apply retroactively and does not prevent tort recovery against nonnegligent landowners by a hired contractor's employee who is injured by the negligence of another contractor working on the premises. On the first point, *95 Smith's argument against retroactivity has recently been rejected by the Fifth District. (Owens v. Giannetta-Heinrich Construction Co. (1994) 23 Cal. App.4th 1662 [29 Cal. Rptr.2d 11].) (7a) We, too, find no reason to depart from the usual rule that judicial decisions are given retroactive effect. Our Supreme Court has reaffirmed the basic principle of retroactivity of judicial decisions, even when those decisions mark a clear break with established tort law. (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978-993 [258 Cal. Rptr. 592, 772 P.2d 1059].)
Exceptions to the rule of retroactivity are rare, and the strongest ground for creating an exception is the reliance of parties on the preexisting state of the law. (Newman v. Emerson Radio Corp., supra, 48 Cal.3d at pp. 986, 988-991.) While Smith undoubtedly relied on the expanded doctrine of peculiar risk, his reliance was as a litigant pleading one of several possible causes of action, not as an individual conducting his affairs. (8) Reliance of the former nature is less compelling and less demanding of an exception to the general rule of retroactivity. (Id., at pp. 989-990.) A litigant's reliance on preexisting law when fashioning his lawsuit is undermined by every change in the law and, while unfortunate, is not a special circumstance warranting deviation from the rule of retroactivity. (7b) Nor are we persuaded that any other factors preclude retroactive application of Privette in this case. As the Fifth District explained, Privette's purpose in correcting inequities caused by the expanded doctrine of peculiar risk would be frustrated by delayed use of the new rule and retroactive application of Privette will not necessitate a significant number of retrials or otherwise disrupt the administration of justice. (Owens v. Giannetta-Heinrich Construction Co., supra, 23 Cal. App.4th at pp. 1670-1671.)
(9) Remaining is the question posed by Smith as to whether Privette bars all peculiar risk claims by employees of any contractor working on the premises, or only the claims of employees of the negligent contractor whose acts injured the worker. As a practical matter, it is not clear that Smith's employer was free of negligence in Smith's exposure to asbestos installed by other contractors, since Smith's own employer bears some responsibility in providing a safe workplace. Nevertheless, as submitted to the jury, the issue was whether PG&E was vicariously liable for the negligence of insulation contractors not Smith's pipe fitting employer.
We conclude that a landowner that hires several independent contractors to work simultaneously on a project on its land is not vicariously liable under the doctrine of peculiar risk for the negligence of any of the hired contractors which injures any of the contractors' employees. Privette marks a return to the "original form" of the doctrine of peculiar risk: a landowner *96 is liable to innocent bystanders and neighboring property owners injured by a hired contractor's negligent performance of dangerous work on the land. (Privette v. Superior Court, supra, 5 Cal.4th at p. 696.) A hired contractor's employee is not a bystander, whether judged in relation to his own work or in relation to another contractor's activities on a joint project.
While the many facets of Privette's reasoning do not all apply with equal force to this situation of a hired contractor's employee injured by another contractor's negligence, a compelling consideration is common to both Privette and this case workers' compensation. Whether a contractor's employee is injured on the job by the acts of his own employer or another contractor, the employee recovers workers' compensation benefits. Landowners hiring contractors indirectly pay the cost of workers' compensation coverage, and permitting tort recovery against landowners under the doctrine of peculiar risk would unfairly subject them to multiple costs for a single injury for which they are not personally at fault. (Privette v. Superior Court, supra, 5 Cal.4th at p. 699.) Imposing vicarious liability for tort damages on a landowner who hires independent contractors for specialized work would penalize those who hire skilled experts to perform dangerous work rather than assigning such activity to their own inexperienced employees. (Id., at p. 700.) Furthermore, permitting tort recovery in this situation would give contractors' employees "an unwarranted windfall" by exempting "a single class of employees, those who work for independent contractors, from the statutorily mandated limits of workers' compensation...." (Id., at p. 700, citations omitted.)
Significantly, in a case cited with approval in Privette v. Superior Court, supra, 5 Cal.4th at page 698, the Massachusetts Supreme Court denied recovery under the peculiar risk doctrine for injuries sustained by a contractor's employee from the negligence of any contractor. (Vertentes v. Barletta Co., Inc. (1984) 392 Mass. 165 [466 N.E.2d 500, 501-504].) In Vertentes, a highway worker was struck by a passing truck while removing negligently placed orange marker barrels. (Id., at p. 501.) It was uncertain which of several contractors on the construction site had improperly placed the barrels, the injured worker's employer or another contractor. (Id., at p. 501.) The Massachusetts Supreme Court, while not directly addressing the issue, was apparently unimpressed with the proposed distinction between injuries sustained from the negligence of the injured worker's own employer and injuries caused by another contractor's negligence. The court was impressed by considerations of workers' compensation law and policy, and denied recovery on several of the same bases motivating our own Supreme Court. (Id., at p. 503; cf. Privette v. Superior Court, supra, 5 Cal.4th at pp. 699-700.) We, too, reject the proposed distinction and conclude that a *97 landowner that hires several independent contractors to work simultaneously on a project on its land is not vicariously liable under the doctrine of peculiar risk for the negligence of any of the hired contractors which injures any of the contractors' employees.
E. The Trial Court Properly Denied PG&E's Motion for Judgment Notwithstanding the Verdict Given Sufficient Evidence of PG&E's Negligence
We have concluded that the judgment against ACandS must be reversed for insufficiency of evidence and the judgment reversed against PG&E insofar as it was based on claims of negligence per se and peculiar risk vicarious liability. We have also found that instructional and evidentiary trial errors associated with proving PG&E's negligence per se prejudiced the trial as a whole and preclude us from affirming the judgment on the jury's finding of general negligence. But PG&E has yet another challenge to the jury findings of liability, and maintains that there is insufficient evidence of its negligence. PG&E briefly argues that its motion for judgment notwithstanding the verdict was erroneously denied, citing a paucity of evidence of its knowledge of asbestos's health hazards which rendered Smith's injuries unforeseeable.
(10) We have reviewed the entire record, and are satisfied that there was sufficient evidence to find PG&E negligent. While there was no direct evidence that PG&E knew asbestos's dangers, the jury could conclude that PG&E should have foreseen the dangers given publication of various medical and industrial studies of asbestos diseases and promulgation of industrial safety standards and that PG&E breached its duty to exercise ordinary care in the management of its premises by failing to hire careful and competent insulators or to take other reasonable precautions. The matter was for the jury, and properly submitted to them. We have no power to substitute our own deductions. (Bowers v. Bernards (1984) 150 Cal. App.3d 870, 874 [197 Cal. Rptr. 925].) However, as indicated above, we must reverse the judgment against PG&E in its entirety, and the question of PG&E's general negligence will be the subject of a new trial.
F. Given Reversal of Judgment, We Do Not Address PG&E's Damages Argument Nor Smith's Cross-appeal
Having found that the judgment must be reversed, we have no opportunity to address application of Civil Code section 1431.2, enacted as Proposition 51 in 1986 to require fault apportionment of noneconomic damages. While we recognize the importance of the issue, and appreciate the efforts of the *98 parties and amici curiae in briefing the issue, any opinion we expressed on the matter would be obiter dictum, and thus pointless. For the guidance of the trial court, we note that the matter is now before our Supreme Court. (Coughlin v. Owens-Illinois, Inc. (1993) 31 Cal. App.4th 1633 [27 Cal. Rptr.2d 214], review granted Apr. 21, 1994 (S037837).)
Likewise, there is no need to reach Smith's cross-appeal of his nonsuited claims of punitive damages and loss of consortium by Smith's wife. These issues are placed "at large" for retrial upon remand. (Lewis v. Upton (1984) 151 Cal. App.3d 232, 236 [198 Cal. Rptr. 494].)
III. DISPOSITION
The judgment is reversed and the cause is remanded for a new trial against PG&E. The trial court is directed to enter judgment in favor of ACandS. ACandS and PG&E shall recover costs on appeal.
Stein, J., and Dossee, J., concurred.
NOTES
[1] ACandS's genesis lies as a unit of Armstrong Cork Company, an insulation manufacturer. In 1958, the unit became a subsidiary called Armstrong Contracting and Supply and then changed its name to ACandS in 1969 when it ended its affiliation with Armstrong Cork Company. For convenience, ACandS refers to both ACandS and Armstrong Contracting and Supply.
[2] The safety orders were issued by the California State Department of Industrial Relations, Division of Industrial Safety.
[3] Smith says PG&E failed to object to the proferred evidence, thus waiving its challenge on appeal. In fact, PG&E repeatedly objected to the photographs and the expert's testimony. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263389/ | 31 Cal.App.4th 747 (1995)
37 Cal. Rptr.2d 406
GREEN PARTY OF CALIFORNIA, Plaintiff and Respondent,
v.
BILL JONES, as Secretary of State, etc., Defendant and Appellant.
Docket No. C013273.
Court of Appeals of California, Third District.
January 19, 1995.
*749 COUNSEL
Anthony L. Miller, Richard S. Nishite and Oliver S. Cox for Defendant and Appellant.
Dickstein & Merin and Mark E. Merin for Plaintiff and Respondent.
OPINION
BLEASE, Acting P.J.
This is an appeal from the portion of a judgment which grants a peremptory writ of mandate commanding the Secretary of *750 State[1] to conduct primary elections to select nominees of the Green Party of California (Green Party) in accordance with two rules adopted by officials of the party in lieu of compliance with the procedures specified by the Elections Code.[2]
One rule requires the Secretary of State to close the primary election to candidates for the Green Party nomination for specified offices as directed by an appropriate Green Party governing body (primary closure rule). The other, as modified by the trial court, requires the Secretary of State to include on the Green Party primary election ballot the category "none-of-the-above" and to deny certification to any nominee who receives less votes than are cast for that category (affirmative vote rule).
The appeal has merit and we will modify the judgment accordingly.
FACTS AND PROCEDURAL BACKGROUND
On January 21, 1992, the Secretary of State notified the temporary chair of the Green Party that by virtue of having obtained the declared affiliation of more than 100,000 registered voters it was qualified, pursuant to section 6430, to participate in the California June 1992 primary election.
On January 25 and 26, 1992, the Green Party conducted a convention in Sacramento and adopted rules to govern primary elections for nominees of the party.[3] On January 28, 1992, the temporary chair of the party sent a copy of the rules to the Secretary of State and requested that the Secretary of State "accept" them in lieu of the procedures mandated by the Elections Code.
The rules include detailed provisions governing the election of members of local party units, called county councils, at primary elections, and governing the conduct of primary elections for the nomination of candidates for partisan office for the general election ballot.
The primary closure rule provides, in pertinent part, that the party convention will decide which, if any, statewide partisan offices the party will contest and the county councils will decide which local partisan offices to contest. Lacking approval, no candidate may submit Green Party nomination papers for the office.
The affirmative vote rule, prior to its modification by the trial court, provides, as to offices approved for a primary contest, that to win the *751 nomination of the party the candidate must receive more votes than any other candidate and more votes than the number of Green Party ballots left blank for that office.
As will appear, the primary closure and affirmative vote rules conflict with the Elections Code provisions for the conduct of primary elections which are applicable to all political parties.
The Secretary of State responded to the proposals of the Green Party by letter dated January 29, 1992. She said that the statutory requirement (§ 9955) that a new party select a means of party nomination from among the existing statutory patterns for party governance is unconstitutional under case law. She also contended that, absent such a selection, she could not implement Green Party procedures that are contrary to or not provided for by existing statutes. She proposed, in default of a selection under section 9955,[4] to advise county election officials not to participate in the conduct of primary election activities to select Green Party county council members. She also proposed to advise local election officials "to comply with the Elections Code provisions permitting qualified members of the Green Party to seek the nominations of their party for all offices on the June 1992 primary election ballot."
This action ensued. Judgment was entered granting the petition for writ of mandate commanding the Secretary of State to conduct elections for Green Party county council members in accordance with the party's rules and to follow party primary closure rules concerning the primary races to be contested. The trial court declined enforcement of the Green Party affirmative vote rule requiring that the candidate garner more votes than the number of ballots left blank. However, it commanded the Secretary of State to add to Green Party primary ballots a choice of "none of the above" and to deny certification to a nominee who receives less votes than are cast for that category.
The Secretary of State appeals from the portion of the judgment imposing the primary closure rule and the none-of-the-above remedy for the affirmative vote rule.
*752 DISCUSSION
I
Introduction
Two Green Party rules are at issue. The primary closure rule requires the Secretary of State to close the primary election to candidates for the Green Party nomination for offices as directed by a Green Party governing body. The affirmative vote rule, as modified by the trial court, requires the Secretary of State to include on the Green Party primary election ballot the category none-of-the-above and to deny certification as nominee to any person who fails to receive more votes than cast for that category.
These rules conflict with the Elections Code.
It provides that each party "qualified to participate in any primary election" appear on the primary election ballot for each partisan office for which a primary election is to be held. Any qualified member of the party is eligible to seek the nomination of the party for such an office.[5]
(1a) The Green Party claims that its First and Fourteenth Amendment rights of association bar application of the provisions of the Elections Code which are in conflict with its rules.[6] (2) We measure the validity of the claim by the constitutional standards recently established in Burdick v. Takushi (1992) 504 U.S. 428 [119 L.Ed.2d 245, 112 S.Ct. 2059]:
"A court considering a challenge to a state election law must weigh `the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate' *753 against `the precise interests put forward by the State as justifications for the burden imposed by its rule,' taking into consideration `the extent to which those interests make it necessary to burden the plaintiff's rights.'
"Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to `severe' restrictions, the regulation must be `narrowly drawn to advance a state interest of compelling importance.' ... But when a state election law provision imposes only `reasonable, nondiscriminatory restrictions' upon the First and Fourteenth Amendment rights of voters, `the State's important regulatory interests are generally sufficient to justify' the restrictions...." (504 U.S. at p. 434 [119 L.Ed.2d at pp. 253-254], citations omitted.)
Pursuant to this standard we determine (1) the nature and magnitude of the claimed associational rights, (2) whether they have been subjected to severe or reasonable, nondiscriminatory restrictions, and (3) whether the restrictions are justified.
II
The Associational Rights
(1b) We distill from the Green Party's arguments a single cognizable claim of associational right undergirding both the primary closure rule and the affirmative vote rule as modified by the trial court's none-of-the-above remedy.
The party's central argument in support of its primary closure rule is as follows.
"[B]y requiring the Green Party to appear on all primary election ballots, the State impermissibly interferes with the Party's internal affairs by requiring it to funnel resources and energy into races it would prefer to forego. More importantly, however, the Party's mere presence on the ballot at the general election the necessary result of holding a primary election in which any votes are cast for a candidate (except if the `none of the above' option is included and wins) may affect the outcome of a close race between other candidates, creating the opportunity for misuse of the Green Party's ballot status. It could be manipulated into serving a `spoiler' function....
"Unless the Green Party is able to decide whether or not to contest any particular race, to support a candidate of a major party by not entering a race, *754 its mere presence could operate contrary to the Green Party's political and ideological interests and could help to elect a candidate whose principles it opposes. Surely no state interest exists to effect this result which is superior to the interests the Party and its members have in deciding for themselves whether to field a candidate." (Original italics.)
The associational right to which the primary closure rule is directed is the right of the Green Party to preclude the appearance of a party nominee on the general election ballot against the wishes of a majority of the voting members of the Green Party. This is also the Ariadne's thread which binds the fabric of the Green Party's arguments in favor of the affirmative vote rule as embodied in the trial court's none-of-the-above remedy.
The party makes no direct argument concerning the associational rights affected by its affirmative vote rule. Its argument is cast as support for the beneficial effects of the none-of-the-above remedy.[7] "[I]t permits the Green Party to prevent a rogue candidate who does not represent the principles of the Party from advancing to the general election merely by being either the only candidate in the Green Party primary, or the one who obtains the plurality, however small, of the votes cast; it reduces the likelihood that a `spoiler' candidacy would be supported by the major parties as a tactic to further their own objectives; it ensures that the election issues will not be framed solely by the candidates and permits an alternative to the `lesser of evils' situation which dissuades some voters from participating in the process; it ensures that the Green Party candidate will have the support of a substantial segment of the membership."
All of these potential benefits are directed to the claimed right of the Green Party to preclude the appearance of a Green Party nominee on the general election ballot against the wishes of a majority of the members of the *755 party. As to that claim the justification for the primary closure rule is dependent upon the presence of a none-of-the-above choice on the primary ballot. For that reason we first determine whether the trial court erred in directing the Secretary of State to include this option on Green Party primary election ballots.
III
The None-of-the-above Remedy
The none-of-the-above remedy interposed by the trial court responds to the Green Party's desire for an affirmative vote rule.[8] It claims that the affirmative vote rule allows the party to prevent a candidate from advancing to the general election "merely by being either the only candidate in the Green Party primary, or the one who obtains the plurality, however so small, of the votes cast...."
(3) A state may compel a political party which seeks ballot access as a political party[9] to nominate its candidates through a primary election process. "It is too plain for argument... that the State ... may insist that intraparty competition be settled before the general election by primary election...." (American Party of Texas v. White (1974) 415 U.S. 767, 781 [39 L.Ed.2d 744, 760, 94 S.Ct. 1296].) Thus, the question arises: if a state has a primary election scheme which permits a minority of the members of a party to nominate a candidate must the state recognize an affirmative vote rule, as here proffered, to ameliorate that prospect?
A.
(1c) The Green Party's claim of injury to its associational rights unwanted ballot access is novel; the case law concerns the right to gain rather than restrict access to the ballot.[10] (See, e.g., Storer v. Brown, supra, 415 U.S. 724, a companion case to American Party of Texas v. White, supra, 415 U.S. 767.)
*756 The Green Party principally relies on Eu v. San Francisco Democratic Comm. (1989) 489 U.S. 214 [103 L.Ed.2d 271, 109 S.Ct. 1013].[11] In that case the Supreme Court struck down several statutes as "regulating a party's internal affairs without showing that such regulation is necessary to ensure an election that is orderly and fair." (Id. at p. 233 [103 L.Ed.2d at p. 288], italics added.) It invalidated a statute which banned endorsements of candidates in primary elections by party central committees, holding that the statute burdened political speech while serving no compelling governmental interest. (Id. at p. 229 [103 L.Ed.2d at p. 286].) It similarly invalidated statutes which specified the form of the governing bodies at the county level and which prevented the "parties from governing themselves with the structure they think best." (Id. at p. 230 [103 L.Ed.2d at p. 286].) It also struck down statutes which directed that public officeholders automatically have membership on party official bodies as an interference "with the parties' choice of leaders." (Ibid. [103 L.Ed.2d at p. 287].) The court struck other statutes imposing term limits on the chair of the party state central committee and requiring rotation of the chair between residents of northern and southern California on the ground they limit party discretion in the conduct of its affairs. (Ibid.)
The statutes at issue here, in specifying a primary nominating process at odds with the rules proffered by the Green Party, manifestly affect the party's internal affairs. (See American Party of Texas v. White, supra, 415 U.S. at p. 783, fn. 15 [39 L.Ed.2d at p. 761].) They permit a minority of party members to place a nominee of the party on the general election ballot.
The Elections Code provides that a candidate may be placed on the primary election ballot by filing a declaration of candidacy signed by a *757 number of party members which varies between one and sixty five, depending upon the office and party registration. (§ 6495.) "The person who receives the highest number of votes at a primary election as the candidate of a political party for the nomination to an office is the nominee of that party at the ensuing general election." (§ 6610.)[12] If a Green Party member files nominating papers there will be a nominee "of" the Green Party at the ensuing general election regardless whether the majority of members of the party are opposed to having a nominee.
Placement on the general election ballot confers an obvious advantage in garnering votes. When this advantage is conferred on a nominee "of" a party over the opposition of a majority of that party there is an impairment of an associational interest. The presence of the person on the ballot suggests that the party endorses or approves the candidacy. Notwithstanding that this suggestion is dispelled by the Elections Code, this knowledge is esoteric and, as a practical consequence of qualifying to participate in primary elections, the party may be compelled to lend its imprimatur at the behest of a minority of party members.
Despite the unusual nature of the Green Party claim to have been injured in its associational interests when a minority of the party obtains ballot access, we find it plausible. In Eu v. San Francisco Democratic Comm., supra, the Supreme Court observed that "[b]y regulating the identity of the parties' leaders, the challenged statutes may also color the parties' message and interfere with the parties' decisions as to the best means to promote that message." (489 U.S. at p. 231, fn. 21 [103 L.Ed.2d at p. 287].) This parallels the argument of the Green Party that control over its name for ballot access is important to the goal of ensuring that its standard bearers represent its ideologies and preferences and that its message is not blurred.
In Eu v. San Francisco Democratic Comm., supra, the Supreme Court included in its enumeration of associational rights the right "to select a `standard bearer who best represents the party's ideologies and preferences.'" (489 U.S. at p. 224 [103 L.Ed.2d at p. 283], quoting from Ripon Society v. National Republican Party (D.C. Cir.1975) 525 F.2d 567, 601 [173 App.D.C. 350] (en banc) (Tamm, J., conc. in result).) If one bears the party standard against the discernible wishes of a majority of the party, the right of selection is affected.
We conclude that the unauthorized use of the name of a party cognizably affects associational interests of the kind protected by the First and Fourteenth Amendments to the United States Constitution.
*758 B.
This conclusion does not end the analysis. To identify a cognizable injury to an associational interest does not confer an associational right nor warrant the acceptance of any rule which the party claims ameliorates the injury. Regardless of the severity of the injury, the warrant is no stronger than its capacity to cure the injury.
The Green Party's affirmative vote rule, even as modified by the none-of-the-above remedy, would function haphazardly as a cure for the access to the ballot which the Elections Code may confer upon a minority of the party. This gravely undercuts the party's claim of right to that rule.
The first defect of the affirmative vote rule is that a voter may fail to vote for a candidate for reasons which do not bear on majoritarian control. A voter may fail to select between candidates out of the belief that the winner, whoever that may be, should become the party standard bearer. For this reason the affirmative vote rule may disserve the associational interest in majoritarian control depending upon the happenstance of the relative numbers who do and do not vote and the sentiments of those who choose not to vote.
This defect is palliated by the none-of-the-above remedy broached by the trial court. A voter who selects none-of-the-above has expressed the desire that none of the candidates whose names appear on the primary election ballot go forward as the standard bearer on the general election ballot. Nonetheless, the remedy does not account for the wishes of those who decline to vote for any category and, if the winner is a write-in candidate, a vote for "none of the above" is equivocal. A permissible inference to be drawn concerning the wishes of a voter who declines to vote, necessarily also declining to vote for "none of the above," is that "any of the above" is an acceptable nominee.
More importantly, the none-of-the-above remedy does not overcome another defect of the affirmative vote rule; it does not account for the wishes of the supporters of unsuccessful candidates in multiple candidate primaries. Those who support a losing candidate may well desire that, if their candidate does not prevail, the most successful candidate should be the party standard bearer in the general election.
Notwithstanding the sentiments of a majority of party members, even an extraordinary majority, under the affirmative vote rule a plurality bloc which chose "none of the above" would prevail over those sentiments. These *759 defects render the affirmative vote rule and the derivative none-of-the-above remedy an electoral affectation.
C.
We must next examine "`the precise interests put forward by the State as justifications for the burden imposed by its rule,' taking into consideration `the extent to which those interests make it necessary to burden the plaintiff's rights....'"
The Secretary of State suggests the state has an interest in the uniformity of ballot procedures in order to prevent voter confusion and to minimize administrative burdens occasioned by idiosyncratic party procedures. Although the potential for confusion and the marginal administrative burden of the none-of-the-above remedy do not appear great, neither can we say they are insignificant. Even little variations, if they are capable of multiplication at the behest of political parties contain the seeds of an elections procedure Babel.
D.
The final inquiry required by Burdick v. Takushi is that we determine "the extent to which a challenged regulation burdens First and Fourteenth Amendment rights." (504 U.S. at p. 434 [119 L.Ed.2d at p. 253].)
As we have explained, the affirmative vote rule and the derivative none-of-the-above remedy provide at best an uncertain and fitful remedy for the claimed injury of potential minority control of access to the party's ballot. For this reason the associational interests of the Green Party are not subjected to severe restrictions by the state's election statutes.
The regulations are nondiscriminatory. The question is whether they are reasonable in light of the burden imposed upon the Green Party's associational interests. As we noted, that burden is not great. The reasonableness of the burden must be viewed in that light.
As noted, Burdick v. Takushi, supra, 504 U.S. at p. 434 [119 L.Ed.2d at pp. 253-254], holds that "`the State's important regulatory interests are generally sufficient to justify' [reasonable, nondiscriminatory restrictions] ..." "upon the First and Fourteenth Amendment rights of voters...." That is the case here.
We conclude that "`the State's important regulatory interests are ... sufficient to justify' the restrictions."
*760 IV
The Primary Closure Rule
The Green Party primary closure rule is also grounded on an interest in avoiding minority use of the Green Party name and ballot access against the wishes of a majority of party members. The rules assign to party governing bodies the authority to decide not to conduct a primary election for particular offices. The choice is determined by representatives of the party membership rather than by direct election of the members.
The question is whether the state must accept such a delegation of authority as a cure for the potential injury that a Green Party nominee may appear on the general election ballot against the wishes of a majority of the membership. We think not.
A.
As with the affirmative vote rule, the proposed cure does not necessarily redress the claimed injury for the reason that the decision of the governing bodies may not correspond with the sentiments of a majority of the party members. Governing bodies are more or less representative of the membership depending upon a myriad of factors, including the method of their selection and tenure, the procedural rules governing their decisionmaking,[13] and current factional politics within the party.
Ordinarily one would expect some correlation between the determinations of party governing bodies and the sentiments of a majority of members of a party. However, there may be an inverse correlation and, in any event, the degree of correlation will vary widely depending upon the play of particular factors.
*761 B.
The countervailing interests of the state include an interest in the uniformity of ballot procedures to prevent voter confusion and to minimize administrative burdens occasioned by idiosyncratic party procedures.
The Secretary of State suggests that the state has an affirmative interest in avoiding control of the party's ballot access by party governing bodies. The Secretary of State notes the historical controversy concerning nominations by party conventions which led to the present system of direct primaries. It is argued that, in light of this history, the state may decline to assign even the limited control over the ballot here in issue in order to forestall the possibility of electoral manipulation by special interests who may more easily dominate party bodies than an open public electoral process.
As related, various deleterious consequences are asserted by the Green Party to its interests and to the public interest that may be attributable to manipulation of its ballot access by minority factions within the party. Assigning the power to open or close primaries to party governing bodies does not ensure these deleterious consequences will not occur; it simply moves the pressure point from one place on the electoral anatomy to another.
The power to close primaries seems a relatively innocuous one. However, one can imagine its employment in a pernicious manner, e.g., elites of multiple competitive parties with primary closing rules could cooperate to avoid the uncertainty of electoral contests, by trading reciprocal closures.
Weighing the countervailing interests, we conclude the Secretary of State has the more persuasive claim. The injury which the primary closure rules address does not strongly implicate the associational interests of the Green Party and the proffered cure is problematic.
The state's election statutes do not subject First and Fourteenth Amendment associational interests to "`severe' restrictions" within the formulation of Burdick v. Takushi. The restrictions of the Elections Code "impose[] only `reasonable, nondiscriminatory restrictions'" on those interests.
DISPOSITION
The judgment and the ensuing peremptory writ of mandate are modified to strike the provisions compelling the Secretary of State to abide by the Green *762 Party primary closure rules and the choice of none-of-the-above remedy. As so modified the judgment is affirmed. The parties shall bear their own costs on appeal.
Davis, J., and Nicholson, J., concurred.
Respondent's petition for review by the Supreme Court was denied April 13, 1995. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
NOTES
[1] Bill Jones took the position of Secretary of State during the pendency of this appeal. Specific references refer to the former Secretary of State, March Fong Eu.
[2] All undesignated references to a section are to the Elections Code.
[3] This action was taken in a plenary session by a means not clearly shown in the record.
[4] Section 9955 is as follows: "Until otherwise provided for by statute, a political party newly qualified pursuant to Section 6430 shall carry on its activities in accordance with procedures applicable to such other political party which has detailed statutory provisions applicable to its operation as shall be designated by the newly qualified party. The temporary officers of the newly qualified political party elected pursuant to Section 9951 shall file notice of such selection with the Secretary of State at least 30 days after the political party qualifies."
[5] Section 6430 governs the determination of the parties "qualified to participate in any primary election." Section 6462 directs the Secretary of State to notify each county clerk of "all the [partisan] offices ... for which candidates are to be nominated at the primary, together with the names of parties qualified to participate in the primary."
Members of the party who meet the qualifications for the office may file nomination documents, declaring their candidacy as a party candidate for the partisan offices to be voted for at the primary election. (§§ 6489-6509.) Such a candidate's name must be printed on the ballot for the primary election. (§ 6658.) The person who receives the most votes at the party primary election is the nominee of the party at the ensuing general election (§ 6610) unless that person is a write-in candidate who receives less than 1 percent of the votes cast for the office at the previous general election (§ 6661, subd. (a)). The name of the nominee "shall be printed upon the ballot for the ensuing general election...." (§ 6659.)
[6] The Green Party belatedly claimed at oral argument that the none-of-the-above remedy can be squared with the Elections Code. The argument comes too late and, in any event, is contrary to the plain words of section 6610, which provides that the person who receives the highest number of votes at a primary election is the nominee of the party.
[7] The Green Party also asserts that the affirmative vote rule is grounded in a strongly held value in "the decision by consensus principle." The party points to internal decisionmaking procedures for state convention actions which impel consensus through debate and permit actions that are not unanimously supported to be taken only when they garner the support of extraordinary majorities. The party concedes, however, that the affirmative vote rule does not assure that a candidate who advances from the primary to the general election has achieved such a "modified" consensus. Indeed a candidate may lack such a consensus and yet advance, e.g., if the vote is predominantly for candidates split closely between two implacable factions, or a candidate may have such a consensus and be barred, e.g., where most voters split between several candidates any of whom they would support, but an implacable minority outnumbering the supporters of any single candidate declines to vote. Accordingly, we need not puzzle through the conundrum posed by a claim of an associational right to a "modified" consensus decisionmaking procedure. If the decision to nominate a candidate is supported by a majority of party members it is not apparent how "the interests the Party and its members have in deciding for themselves whether to field a candidate" are cognizably infringed.
[8] We imply no view on the question of the propriety of fashioning such a remedy in connection with refusing to enforce a party rule. In the interests of judicial economy, and in light of the Green Party's litigating position, we treat the none-of-the-above remedy as if it were a rule adopted by the Green Party.
[9] A political party can avoid the primary process by declining to seek qualified party status. If it does not do so it is free to support and nominate candidates selectively through the independent candidate approach. However, the two "approaches to political activity are entirely different and neither is a satisfactory substitute for the other." (Storer v. Brown (1974) 415 U.S. 724, 745 [39 L.Ed.2d 714, 732, 94 S.Ct. 1274].)
[10] In the obverse situation, where the party desires that a candidate who has ballot access be permitted to use its name on the ballot, two precedents are called to our attention. In Libertarian Party v. Eu (1980) 28 Cal.3d 535, 542 [170 Cal. Rptr. 25, 620 P.2d 612], the California Supreme Court declared that identifying a candidate as "Independent" on the ballot rather than as affiliated with a party that had not yet qualified to participate in primary elections "imposes an insubstantial burden on the rights to associate and to vote...." In Lightfoot v. Eu (9th Cir.1992) 964 F.2d 865, the Libertarian Party had adopted a rule that to be their nominee a write-in candidate needed only enough votes in the primary to satisfy the signature endorsement requirements to have appeared on the primary ballot in the first place. The court upheld the conflicting rule of section 6661, subdivision (a), which, as related, requires that a write-in candidate at a primary election receive one percent of votes cast at the last election in order to be placed on the general ballot as the nominee of a party. It found the burden placed on associational rights by denial of use of the party's name "slight."
[11] The immediate precursor of Eu v. San Francisco Democratic Comm. is Tashjian v. Republican Party of Connecticut (1986) 479 U.S. 208 [93 L.Ed.2d 514, 107 S.Ct. 544]. In Tashjian the Republican Party of the State of Connecticut had adopted a rule permitting voters who were not affiliated with any party to vote in Republican primary elections. The Secretary of State of Connecticut refused to follow the party rule because a state statute limited participation in party primary elections to voters who had registered as members of the party. The party challenged the statute and the Supreme Court upheld the judgment in favor of the party.
[12] There is an exception where the person who receives the highest number of votes is a write-in candidate. As related, such a nominee must also receive votes equal in number to 1 percent of all votes cast for the office at the last pertinent general election. (§ 6661, subd. (a).)
[13] For example, it is uncertain on this record whether the respective governing bodies must act to close or to open a primary. This is a point of some moment, since the act in question may require consensus or an extraordinary majority vote on the part of the governing body under rules that have been or may be adopted by them. Even assuming a perfectly representative governing body, whichever action requires such a consensus or extraordinary majority vote affords a tactical opportunity for a minority faction within the membership to control the use of the party name and ballot access. This occurs whenever a minority has control either to permit such use and access, or to deny it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263410/ | 142 F.Supp. 225 (1956)
Seth EVANS, Plaintiff,
v.
Robert C. WATSON, Commissioner of Patents, Defendant.
Civ. A. No. 256-54.
United States District Court District of Columbia.
June 21, 1956.
*226 George R. Jones, Irving M. Tuller, of Beale & Jones, Washington, D. C., Ray L. Smith, Houston, Tex., of counsel, for plaintiff.
C. W. Moore, Sol., U. S. Patent Office, Washington, D. C., S. W. Cochran, Washington, D. C., of counsel, for defendant.
WILKIN, District Judge.
Plaintiff, under 35 U.S.C. § 145, seeks judgment for letters patent on three claims, 1, 5 and 8 of application Serial No. 27,247, filed May 15, 1948, for an article designated a "Threaded Connection." The article is a connection for joining, end-to-end, drill collars and drill pipe to make up a drill stem of an oil well rotary drilling apparatus. Pl. Brief, p. 6.
The essential feature of the plaintiff's tool joint consists of employing a screw thread in which the angle between the *227 two adjacent sloping sides of each screw thread is approximately 90 degrees, instead of the 60-degree crest angle in prior use. Plaintiff's tool joint, when connected or "made-up," affords a high compressive strength between the abutting shoulders of the pin and box members. The important feature of plaintiff's connection is the elastic deformation or "swelling" of the walls of the pin and box members which is produced by the 90-degree crest angle of the threads.
The Board of Appeals of the Patent Office in denying the plaintiff's application said:
"We agree with the Examiner that there is nothing of patentable merit in the mere substitution of the well-known 90-degree thread for the standard 60-degree thread of the prior art."
The Patent Office tribunals admitted, however, that plaintiff's threaded connection is superior to the conventional connections, and that no prior patent or publication shows a screw thread having a 90-degree crest angle employed in oil well drilling equipment. Novelty and utility being admitted, and no contention being made that plaintiff is barred by Section 102 of Title 35, U.S.C., plaintiff's application was denied on the sole ground that he was barred by Section 103 of Title 35; that is, because "the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art."
At the end of the trial, the Court stated a definite impression that the change of the angle of the thread could hardly be invention; that threads of 90-degree angle had been made for other purposes; that such change was only a change in degree; but from the evidence it was quite clear that the change had produced a remarkable improvement; that the drilling operations with the 90-degree connections, especially in the hard-rock formations, were much more successful and less expensive; that the number of failures in the drilling string had been decreased to a remarkable degree. The Court then stated that if a patent was warranted, it would be because of the discovery of the effect, rather than because of the mechanical change; the change was simple, but the effect was striking and produced unexpected improvement; that the need for such improvement, especially in the deeper operations, had been recognized for many years, and various attempts to meet the need had been made without success; that the applicant's experiments were conducted at great expense, but were immediately crowned with success; and that the applicant's connection has been adopted quite generally. The Court then stated that the sole issue seemed to be whether or not the discovery of the usefulness of the change warranted a patent monopoly, and counsel agreed that such was the real issue. R. 183.
It is, therefore, apparent that this case presents the issue of patentability in a most acute form. There is no dispute as to what the facts are; there is no dispute as to what the law says. The controversy arises over the question, Does the law which authorizes patent monopolies, considered in the light of its history, theory and purpose, warrant the grant of a patent in this case? Or, in other words, What is the effect of the established law on the established facts?
The decisions of the Patent Office are always given respectful consideration, but it seems clear that this case is not subject to the presumption in favor of the judgment of the Patent Office. That presumption is based on the deference which judges of law courts entertain for the more extensive learning and experience of officers of the Patent Office in technical science. This case, however, exemplifies the basic reason for the "remedy by civil action" allowed by Section 145. It is the intent of that Section to keep the administration of the Patent Law from becoming too *228 technical; to conserve the original purpose of the law.
The undisputed evidence before this Court reveals that the work done by plaintiff led directly to a discovery that promotes the progress of science,[1] to a new and useful improvement in manufacture[2] of the threaded connection in an oil well drill stem. The Patent Act, as well as the Constitution, mentions both invention and discovery; but the decisions for the most part deal with invention. They are not the same. Dennis v. Pitner, 7 Cir., 106 F.2d 142 (3). Invention is something definitely sought or created and usually predictable. Discovery is something found or learned unexpectedly; it is unpredictable. Some accomplishments have elements of both invention and discovery. And the Patent Law and decisions seem to impose one condition on both they must have been brought into existence by prior effort to merit the reward of patent monopoly. The purpose of the Patent Law is to encourage diligence, skill and initiative that "promote the progress of science and useful arts." While there may be an element of luck in both invention and discovery, legislative history and the trend of patent decisions would hardly warrant the grant of a patent for a discovery entirely fortuitous. Morton v. New York Eye Infirmary, 17 Fed.Cas. p. 879, No. 9,865, 5 Blatchf. 116. As Walker says:
"It is only when the discoverer has gone beyond the mere domain of discovery, and has laid hold of the new principle, force or law and connected it with some particular medium or mechanical contrivance by which, or through which, it acts upon the material world, that he can secure the exclusive control of it through the Patent Act." Walker on Patents, 1 Deller's Edition 37.
But the evidence in this case reveals that the plaintiff expended a great deal of effort and money to accomplish the desired result. Furthermore, he embodied his discovery in a particular medium or mechanical contrivance by which, or through which, it acts. During the last World War, the great need for oil occasioned extensive drilling in West Texas and other hard-rock areas. The oil wells in such territories were drilled to depths of eight or nine thousand feet, and much of the distance was through a geological formation of very hard rock. These conditions occasioned an increase in the failures in the drilling stem connections. The breaks in the drilling stem and the interruptions occasioned by wear and tear on the drill collars made the expense in time and bits almost prohibitive. The oil companies, the drillers, and the manufacturers of drilling machinery all recognized that unless something could be done "to improve the rate of penetration and the footage by bit," operations in the territory would have to be abandoned.
Extensive experiments were made. They involved treatment of the metal with the hope of increasing its tensile strength, the use of lubricants, and other measures. None of the experiments met the need. The problem was so serious that the American Petroleum Institute became interested, and its Subcommittee on Drill Collars undertook a study and course of experimentation. The Committee in turn referred the problem to the Batell Memorial Institute of Columbus, Ohio, for a photo-elastic analysis and recommendations. Nothing constructive was accomplished.
The plaintiff, Evans, suggested to his employer, The Hughes Tool Company, that the problem be approached by trying a designed change rather than by continuing surface treatments and lubricants. His suggestion was that a change in the crest angle of the thread from 60 to 90 degrees would put into the connection "a greater resilient stored energy." It was quite generally believed that such a change in the crest angle of the thread would increase the "elastic swell" in the pin and box of the coupling, and it was *229 feared that such "swell" would increase the failures.[3]
The witness, Payne, an officer of the Hughes Company, testified:
"We knew we had to field test it. There was no other way we could determine whether it would be successful in accomplishing this needed goal of preventing loosening of joints in the presence of these forces that tended to loosen the screw connection."
Fifteen new connections were manufactured with a 90-degree crest angle, and were given a field test by the Carl B. King Drilling Company under the supervision of their drilling engineers. The new connections proved successful in the hardrock field. Ninety-degree connections were then made in other sizes for drill stems of greater diameter, and they too were quite successful. Experiments were then made with 60-degree pins and 90-degree pins in the same drilling operation, in order that a comparison of strength could be made under similar conditions. During a drilling period of 5,100 hours, there was a failure of fifteen of the 60-degree pins and a failure of only two of the 90-degree pins. As a result of such tests, there followed a very general acceptance and commercial use of the 90-degree connections.
The case seems to fall within the principles announced in: Loom Co. v. Higgins, 105 U.S. 580, 591, 26 L.Ed. 1177; Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523; Peerless Equipment Co. v. W. H. Miner, Inc., 7 Cir., 93 F.2d 98; Ingersoll Milling Mach. Co. v. General Motors Corp., 7 Cir., 207 F.2d 42; L-O-F Glass Fibers Co. v. Watson, D. C. Cir., 228 F.2d 40; Kelley v. Coe, 69 App. D.C. 202, 99 F.2d 435 (7).
Patent grants issued to the plaintiff by foreign countries were offered in evidence and objected to by counsel for the defendant. To make the foreign patents competent evidence of patentability, plaintiff would have to show substantial identity of the foreign patent law with the law of this country and substantial identity of the facts of the pending application with the facts upon which the foreign tribunal based its decision. Testimony as to foreign patents was received, however, merely as cumulative evidence of the acceptability and general use of the plaintiff's 90-degree connection. Wach v. Coe, 64 App.D.C. 235, 77 F.2d 113, 115.
The evidence was clear and convincing that the case met the requirements and was within the purview of the Patent Law; and that while the mechanical change was obvious, the effect was not.
It is the judgment of this Court that the plaintiff, in view of his initiative, patience, diligence, and expenditure, and his contribution to the benefit of the oil industry, is entitled to the grant of a patent.
Counsel for plaintiff may prepare findings of fact, conclusions of law, and a final order.
NOTES
[1] U. S. Constitution, Article I, Sec. 8.
[2] 35 U.S.C. § 101.
[3] Such elastic deformation or "swelling" was advanced as the opinion of the experts. If a gratuitous opinion by the Court in a matter so technical were justified, it might be suggested that the virtue of the 90-degree angle thread may be occasioned by diminishing the acute-angular or diagonal pressure upon the thread and directing the pressure of the vertical stem against a more nearly horizontal opposing face. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263268/ | 31 Cal.App.4th 1809 (1995)
37 Cal. Rptr.2d 558
JOEL DIMARCO et al., Plaintiffs and Appellants,
v.
DIXIE N. CHANEY, Defendant and Respondent.
Docket No. B075652.
Court of Appeals of California, Second District, Division Three.
January 30, 1995.
*1811 COUNSEL
King, Weiser, Edelman & Bazar and Warren K. Miller for Plaintiffs and Appellants.
Glenda L. Heiserman for Defendant and Respondent.
OPINION
KLEIN, P.J.
Plaintiffs and appellants Joel DiMarco and Linda DiMarco (collectively, DiMarco) appeal a judgment insofar as it awards $19,575 in attorney fees and other costs to defendant and respondent Dixie N. Chaney (Chaney).
The essential issues are whether the arbitrator exceeded his powers by denying an award of attorney fees and costs to Chaney, and whether the trial court erred in awarding attorney fees and costs to Chaney for the underlying arbitration instead of remanding to the arbitrator for that purpose.
We conclude the arbitrator exceeded his powers in denying Chaney's request for attorney fees and costs because Chaney was entitled thereto as the prevailing party under the contract. Therefore, the trial court was empowered to correct the award to provide for an award of attorney fees and costs to Chaney. However, the trial court erred in determining the amount to which Chaney was entitled for the underlying arbitration proceeding because that issue was within the arbitrator's purview.
Therefore, the judgment is reversed with respect to the $19,575 award of costs and the matter is remanded to the trial court with directions to remand *1812 to the arbitrator for a determination of that issue, and for further proceedings consistent with this opinion. The judgment is otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
In March 1989, DiMarco entered into a real estate purchase contract to acquire certain property from Chaney. DiMarco subsequently filed an action for rescission. Because the contract contained an arbitration clause, the matter was referred to the American Arbitration Association.
In an award made January 9, 1992, the arbitrator denied DiMarco's claim against Chaney and denied all requests for attorney fees and costs.
On April 20, 1992, Chaney filed a motion in the trial court to correct the arbitration award. Chaney contended the arbitrator exceeded his power by not applying the attorney fee provision[1] and the error appeared on the face of the record.
The matter was heard May 22, 1992, at which time the trial court ordered the matter back to the arbitrator to clarify his denial of attorney fees to Chaney. The trial court directed the arbitrator "to state whether he considered and applied Civil Code section 1717" in rejecting Chaney's request for attorney fees and costs.
On October 13, 1992, the arbitrator filed a clarification of the award, stating: Chaney prevailed against DiMarco and that in rendering the award, he was cognizant of Civil Code section 1717, under which attorney fees are recoverable as costs by the prevailing party. He believed he had the discretion to deny the request for attorney fees, notwithstanding the determination that Chaney was the prevailing party. He added: "If the arbitrator does not have that discretion and the prevailing parties are entitled to attorneys' fees as a matter of right, attorneys' fees should be awarded to the prevailing parties to the degree such fees were incurred in arbitrating the claim upon which they prevailed."
On November 20, 1992, Chaney filed a second motion in the trial court to correct and to affirm the award as corrected. In the motion Chaney sought a correction of the award to reflect her entitlement to reasonable attorney fees and costs as the prevailing party. The supporting declaration of Chaney's attorney stated her client had incurred $19,575 in attorney fees and costs in defending the action.
*1813 DiMarco filed opposition papers, arguing the motion was time-barred, the trial court lacked the power to correct the award even if the motion were timely, Chaney had failed to provide any admissible and competent evidence of whether the attorney fees and costs sought were reasonable or necessary, and sanctions should be imposed against Chaney and her counsel.
Chaney's reply papers asserted the motion was timely and that "CHANEY first seeks a ruling that she is, in fact, entitled to such fees [and] the court can make a determination of the amount of fees later upon proper presentation of ... CHANEY's cost bill. [¶] However, ... CHANEY's counsel has attached a true copy of her prior bill in this matter for the court's perusal." (Italics added.)
On December 24, 1992, the trial court heard the matter and "granted [the motion] as prayed."
On February 19, 1993, Chaney filed a memorandum of costs seeking $24,229 in costs, including $22,804 in attorney fees.
On February 22, 1993, the clerk rejected the cost memorandum on the grounds "[t]here is no judgment in the file, nor are there orders for attorney fees."
However, Chaney obtained the trial court's signature on a judgment filed February 22, 1993, awarding her $19,575 and judgment was entered accordingly.
Four days later, on February 26, 1993, Chaney filed a "corrected" cost memorandum seeking $24,105, including $22,804 in attorney fees.
On April 6, 1993, DiMarco filed a motion to vacate the judgment on the grounds the issue of the amount and reasonableness of attorney fees was not before the trial court on December 24, 1992, and the evidence was insufficient to justify the award of attorney fees.
On April 23, 1993, the trial court denied the motion to vacate the judgment.
The same day, DiMarco filed notice of appeal from the February 22, 1993, judgment insofar as it awarded Chaney $19,575 in attorney fees and costs.
CONTENTIONS
DiMarco contends the trial court abused its discretion in awarding Chaney $19,575 in attorney fees and costs (1) when the issue of the amount and *1814 reasonableness of such fees and costs was not before the court, (2) when no evidence was presented to the trial court to justify the award, and (3) without permitting DiMarco to object thereto and to file a motion to tax costs.
Chaney seeks sanctions for what she contends is a frivolous appeal by DiMarco.
DISCUSSION
1. No merit to DiMarco's contention trial court was bound by arbitrator's denial of award of attorney fees and costs.
(1) DiMarco contends the trial court was bound by the arbitrator's decision denying Chaney an award of attorney fees and costs. (Hacienda Hotel v. Culinary Workers Union (1985) 175 Cal. App.3d 1127, 1133 [223 Cal. Rptr. 305].) The argument lacks merit.
In Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 [10 Cal. Rptr.2d 183, 832 P.2d 899], the Supreme Court clarified the law as to the limited scope of judicial review of arbitration awards. Moncharsh held an award rendered by an arbitrator pursuant to a contractual agreement to arbitrate is not subject to judicial review except on the grounds set forth in Code of Civil Procedure sections 1286.2 (to vacate) and 1286.6 (for correction). (3 Cal.4th at p. 33.)[2],[3]
Subsequently, in Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362 [36 Cal. Rptr.2d 581, 865 P.2d 994], the Supreme Court reiterated an award is subject to vacation or correction where the arbitrators have "`exceeded their powers.'" (Id., at p. 373; §§ 1286.2, subd. (d), 1286.6, subd. (b).)
In that case, the arbitration agreement authorized the arbitrator to grant "`any remedy or relief which the Arbitrator deems just and equitable and within the scope of the agreement of the parties, including, but not limited to, specific performance of a contract.'" (Advanced Micro Devices, Inc. v. Intel Corp., supra, 9 Cal.4th at p. 368.) The arbitrator determined Intel Corporation (Intel) had breached portions of a technology exchange agreement with Advanced Micro Devices, Inc. (AMD). (Id., at p. 367.) As remedies for the breach of the implied covenant of good faith and fair *1815 dealing, the failure to negotiate in good faith over certain matters and other breaches, the arbitrator awarded AMD a permanent, nonexclusive and royalty-free license to certain Intel intellectual property, as well as an extension of certain patent and copyright licenses. (Id., at pp. 370-371.)
Advanced Micro Devices, Inc. held arbitrators, "unless expressly restricted by the agreement of the parties, enjoy the authority to fashion relief they consider just and fair under the circumstances existing at the time of arbitration, so long as the remedy may be rationally derived from the contract and the breach." (Advanced Micro Devices, Inc. v. Intel Corp., supra, 9 Cal.4th at p. 383.) The arbitrator did not exceed his powers because the remedies he awarded were rationally drawn from the underlying contract and the effects on AMD of Intel's breach. (Id., at p. 384.)
Here, the arbitrator's decision to deny Chaney an award of attorney fees, notwithstanding his finding Chaney was the prevailing party, exceeded his powers because the agreement provides "the prevailing party shall be entitled to reasonable attorney's fees and costs." (Italics added.)
Had the arbitrator found neither DiMarco nor Chaney was the prevailing party, the arbitrator properly could have declined to make any award of attorney fees. But having made a finding Chaney was the prevailing party, the arbitrator was compelled by the terms of the agreement to award her reasonable attorney fees and costs. In denying Chaney's request for attorney fees, the arbitrator exceeded his powers. That error was subject to correction because section 1286.6, subdivision (b), provides an award shall be corrected if "[t]he arbitrators exceeded their powers [and] the award may be corrected without affecting the merits of the decision...." (Italics added.)
Accordingly, there is no merit to DiMarco's contention the trial court was bound by the arbitrator's denial of Chaney's request for attorney fees and costs.
Having determined the arbitrator's exceeding his authority was subject to correction by the trial court, the remaining issue is the forum for determining the reasonable amount to be awarded Chaney for the attorney fees and costs she incurred in the arbitration proceeding.
2. Amount of attorney fees and costs to be awarded for arbitration proceeding is to be determined by arbitrator.
Chaney's reply papers on her second motion to correct the award included the declaration of her attorney in support of the attorney fees request. *1816 Appended to the declaration was a copy of counsel's three-page bill. Except for $600 for preparation of the motion to correct the award and review of the opposition thereto, virtually all the billings by Chaney's counsel were for services rendered and costs incurred at the arbitration level, not in the superior court.
(2) The issue is whether the arbitrator, pursuant to the contract, should have been directed to decide the amount of attorney fees and costs to be awarded for the arbitration proceeding, or whether the issue of the amount of those fees and costs was a matter for the trial court.
An award of attorney fees for the arbitration itself is within the arbitrator's purview. For example, in Taranow v. Brokstein (1982) 135 Cal. App.3d 662, 664-665 [185 Cal. Rptr. 532], involving a partnership dispute, the partnership agreement contained both an arbitration clause and a provision for reasonable attorney fees to the prevailing party. The matter was arbitrated. The arbitrator's award included an award of attorney fees to the prevailing party. The losing party filed a petition to vacate the award on the ground the arbitrator exceeded his jurisdiction in awarding attorney fees incurred in the arbitration proceedings. The superior court confirmed the award, concluding the arbitrator had the necessary jurisdiction to award attorney fees. (Id., at p. 665.) The reviewing court reviewed the provisions of the agreement and affirmed the trial court's ruling. (Id., at pp. 664-668; see also Severtson v. Williams Construction Co. (1985) 173 Cal. App.3d 86, 96 [220 Cal. Rptr. 400] ["[a]ttorneys' fees and costs were properly part of the arbitrator's original award"]; Dickinson v. Kaiser Foundation Hospitals (1980) 112 Cal. App.3d 952, 954 [169 Cal. Rptr. 493] [arbitration award directed each party to bear its own costs, fees and expenses].)
Thus, the issue of the amount of attorney fees and costs to be awarded for the arbitration proceeding was properly a matter for the arbitrator. (Severtson v. Williams Construction Co., supra, 173 Cal. App.3d at p. 96; Dickinson v. Kaiser Foundation Hospitals, supra, 112 Cal. App.3d at p. 954; Taranow v. Brokstein, supra, 135 Cal. App.3d at pp. 664-665.) After the arbitrator declined to award Chaney her attorney fees and costs, notwithstanding his determination she was the prevailing party, the trial court was empowered to correct the award to provide for an award of attorney fees and costs to Chaney. However, the trial court should have remanded the matter to the arbitrator to determine the amount of attorney fees and costs to which Chaney was entitled for the arbitration proceeding, rather than making that determination at the trial court level.
Further, not only is the determination as to the amount properly within the purview of the arbitrator, but we observe it is the arbitrator, not the trial *1817 court, which is best situated to determine the amount of reasonable attorney fees and costs to be awarded for the conduct of the arbitration proceeding. In view of the arbitrator's apparent reluctance to award attorney fees and costs to Chaney, we remind the arbitrator he is compelled by the parties' agreement to award reasonable attorney fees and costs to the prevailing party and lacks discretion to do otherwise.
3. DiMarco's reliance on section 1033.5 unavailing.
(3) DiMarco argues Chaney's attorney fees request was procedurally infirm because Chaney did not file a noticed motion as required by section 1033.5. (Bankes v. Lucas (1992) 9 Cal. App.4th 365, 370-371 [11 Cal. Rptr.2d 723]; Gunlock Corp. v. Walk on Water, Inc. (1993) 15 Cal. App.4th 1301, 1303-1304 [19 Cal. Rptr.2d 197]; Russell v. Trans Pacific Group (1993) 19 Cal. App.4th 1717, 1724-1725 [24 Cal. Rptr.2d 274].) The argument fails.
Section 1293.2 within the title of the code pertaining to arbitration, states "The court shall award costs upon any judicial proceeding under this title as provided in ... Section 1021 [et seq.] ..."
In contrast, section 1284.2 pertains to costs incurred in the underlying arbitration proceeding. (Dickinson v. Kaiser Foundation Hospitals, supra, 112 Cal. App.3d at p. 954.)[4] Thus, "[i]n arbitration matters, the Legislature has carefully distinguished between costs incurred in the arbitration and costs incurred in superior court to enforce an arbitration award." (Ibid.)
Consequently, it would appear the requirement of a noticed motion under section 1033.5 applies to a request in the superior court for attorney fees incurred in proceedings to correct, vacate or confirm an arbitration award, not to a request for attorney fees incurred in the underlying arbitration. The determination of a claim for attorney fees incurred in prosecuting or defending the underlying arbitration proceeding is within the purview of the arbitrator, rendering the procedure of section 1033.5 inapplicable.
Once the arbitrator makes a determination as to the amount of attorney fees and costs to which Chaney is entitled for the arbitration proceeding, Chaney may move in the superior court to confirm the award. At that juncture, Chaney may bring a noticed motion pursuant to sections 1033.5 *1818 and 1293.2 to recover the reasonable amount of the attorney fees and costs which she incurred in judicial proceedings.[5]
DISPOSITION
The judgment is reversed insofar as it awards $19,575 in attorney fees and other costs to Chaney. The matter is remanded to the trial court with directions to remand to the arbitrator for a determination of the amount of attorney fees and costs to which Chaney is entitled for the arbitration proceedings, and for further proceedings consistent with this opinion. The judgment is otherwise affirmed.
Chaney's request for sanctions on appeal is denied.
DiMarco to recover costs on appeal.
Croskey, J., and Collins, J.,[*] concurred.
NOTES
[1] In this regard the contract provided: "ATTORNEY'S FEES: In any action, proceeding or arbitration arising out of this agreement, the prevailing party shall be entitled to reasonable attorney's fees and costs."
[2] All further statutory references are to the Code of Civil Procedure, unless otherwise specified.
[3] Section 1286.6, subdivision (b), provides for correction of an award if "[t]he arbitrators exceeded their powers...."
[4] Section 1284.2, within the chapter pertaining to conduct of arbitration proceedings, states: "Unless the arbitration agreement otherwise provides or the parties to the arbitration otherwise agree, each party to the arbitration shall pay his pro rata share of the expenses and fees of the neutral arbitrator, together with other expenses of the arbitration incurred or approved by the neutral arbitrator, not including counsel fees or witness fees or other expenses incurred by a party for his own benefit."
[5] We observe DiMarco does not seek to preclude Chaney from recovering attorney fees and costs. DiMarco's brief only requests "that this matter be remanded to the trial court for a proper determination of Chaney's attorneys fees and costs."
[*] Judge of the Los Angeles Superior Court sitting under assignment by the Chairperson of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263274/ | 31 Cal.App.4th 205 (1994)
36 Cal. Rptr.2d 897
JEFFREY SMITH, Petitioner,
v.
THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; KEVIN DEGNAN, Real Party in Interest.
Docket No. A067110.
Court of Appeals of California, First District, Division Four.
December 29, 1994.
*208 COUNSEL
Altshuler, Berzon, Nussbaum, Berzon & Rubin and Lowell Finley for Petitioner.
No appearance for Respondent.
Andersen, Bonnifield & Stevens and Craig F. Andersen for Real Party in Interest.
OPINION
REARDON, J.
Petitioner Jeffrey Smith is a member of the Contra Costa County Board of Supervisors. As a member of the board, Smith cast a vote that the county appeal an order entered in federal litigation involving the county. Thereafter, Kevin Degnan, real party in interest, sought injunctive relief in respondent court to set aside Smith's vote on the ground that Smith's participation in the decision to appeal violated California's Political Reform Act. Respondent court agreed, issued a preliminary injunction setting aside Smith's vote, and Smith now seeks a writ to vacate respondent court's order.
FACTS PROCEDURAL HISTORY
The federal litigation (Latimore et al. v. County of Contra Costa (No. C 94-1257)) (hereafter Latimore) is a class action filed in the United States *209 District Court for the Northern District of California by a group of indigent minority individuals and community churches. As explained by the federal court, the action challenges the failure of county and state health services officials to provide county hospital services to the county's minority poor residents equal to that afforded to the predominantly White central county residents. The plaintiffs alleged that the county's decision to construct a new county hospital in Martinez in the central part of the county to replace the old county hospital in Martinez is a manifestation of the county's systematic policy of discrimination against the poor and minority living in the western and eastern parts of the county.
When commencement of construction of the new hospital became imminent, the federal court issued a preliminary injunction enjoining the county "until trial from undertaking or causing others to undertake any further expenditure of funds and any further construction or preconstruction funds for the proposed Merrithew Memorial Hospital replacement until equal access to County hospital services is made available to the class of minority poor in the West and East County areas of Contra Costa County."
On August 2, 1994, the county's board of supervisors voted three to two to appeal the above order. On August 8, 1994, Kevin Degnan filed a complaint for preliminary and permanent injunctive relief in respondent court. The complaint alleged that Smith's participation in the decision to appeal the Latimore order violated the financial conflict of interest prohibition of the Political Reform Act of 1974 and requested that the court invalidate the decision to appeal, enjoin the county from taking further actions to appeal, and enjoin Smith from participating in board decisions relating to any issues involving the new construction of the county hospital or issues involving the county health services department.
In a declaration in support of a request for preliminary injunction, Degnan's attorney stated that at the time Smith voted to appeal the federal injunctive order, Smith was an employee of the Health Services Department of Contra Costa County and was working as a physician at Merrithew Memorial Hospital. Smith's wife was also employed as a physician by the health services department. Smith opposed the request contending that there was no violation of the Political Reform Act. Attached to the opposition was a declaration of the health services personnel officer stating that Smith had been employed as a permanent, full-time physician for the department since 1983 and his wife had been employed since 1990 as a permanent, half-time physician.
Two days before the hearing in respondent court, Degnan filed a response to Smith's opposition. At the same time, Degnan filed the declaration of Dr. *210 Paul F. O'Rourke who had reviewed a health care report prepared for the board of supervisors which reviewed, among other issues, the impact on county physicians if the Merrithew construction were abandoned and services contracted out to district hospitals and their private medical staffs. The report opined that reductions in the number of family practitioner physician employees could be expected if county physicians were required to practice in-patient services at district hospitals.
At the hearing, Smith's attorney complained that he had not had time to review the papers filed two days earlier by Degnan. The court replied that the papers had no "great influence ... if any" on its decision. The court explained that its ruling in favor of Degnan rested upon the court's interpretation of section 87103 of the Government Code and its finding that there was a reasonable probability that the decision on appealing the federal order could affect the whole professional life of Smith and his wife.
On August 24, 1994, respondent court filed its order finding "that it is reasonably foreseeable that the Latimore litigation will affect whether SMITH or his wife will lose their employment as County physicians." The court set aside the vote to appeal the Latimore decision "pending final adjudication."
On September 8, 1994, Smith filed the instant petition. On September 12, 1994, this court stayed the effect of the order of August 26, 1994, with the explanation that "... it is the intention of this court to temporarily permit petitioner to continue participating in decisions involving the Latimore litigation and to temporarily allow the pursuit of the appeal in that litigation." We issued our alternative writ and now conclude that respondent court erred in setting aside the vote in which Smith participated because there is no substantial evidence that Smith violated the Political Reform Act in voting to appeal the decision in the Latimore litigation.
DISCUSSION
I.
(1) In his return to the alternative writ, Degnan first contended that Smith is not entitled to extraordinary writ relief because an order granting a preliminary injunction is immediately appealable. (Code Civ. Proc., § 904.1, subd. (a)(6).) Section 1086 of the Code of Civil Procedure, however, provides that a writ of mandate "must be issued in all cases where there [is] not a plain, speedy, and adequate remedy, in the ordinary course of law." This is *211 such a case. Respondent court's order set aside a vote to appeal a federal action. If the county could not perfect its right to appeal the federal order granting a preliminary injunction, the county's right to appeal could be lost by inaction or, if not lost, could be prejudiced by the delay.
II.
After the briefing on this matter was completed, Degnan informed this court that the injunction in the Latimore case had been dissolved, rendering moot respondent court's order setting aside the vote to appeal that decision. (2) Degnan suggests that this court dismiss the present petition without an opinion on the ground that whether respondent court's decision was correct or not is moot. We decline to do so.
"It is now established law that where ... issues on appeal affect the general public interest and the future rights of the parties, and there is reasonable probability that the same questions will again be litigated and appealed, an appellate court may, although the appeal be subject to dismissal, nevertheless adjudicate the issues involved. [Citations.]" (People v. West Coast Shows, Inc. (1970) 10 Cal. App.3d 462, 468 [89 Cal. Rptr. 290].)
The Latimore litigation is still pending as is Degnan's action to enjoin Smith from participating in issues and decisions involving the county hospital and the county health services. Respondent court's broad finding, which we conclude was erroneous, has the potential of affecting the further resolution of Degnan's action against Smith. The question of whether Smith's participation in the Latimore litigation and related issues violates the Political Reform Act is still in controversy and the petition is not moot.
III.
Government Code section 87100 provides: "No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest."
Government Code section 87103 provides in relevant part: "An official has a financial interest in a decision within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official or a member of his or her immediate family...."
*212 (3) No judicial decision has been cited or found which discusses the meaning of "reasonably foreseeable" in the context of Government Code section 87103. Smith has attached to his exhibits a copy of an opinion of the Fair Political Practices Commission (FPPC) (In re Thorner (Dec. 4, 1975) FPPC Dec. No. 75-089 [1 FPPC Opns. 198]) and copies of several advice letters in which the FPPC has explained its interpretation of the phrase. For example, the FPPC has stated: "An effect is considered reasonably foreseeable if there is a substantial likelihood that it will occur. Certainty is not required. However, if an effect is only a mere possibility, it is not reasonably foreseeable." We recognize, as Degnan points out, that advice letters are not legal authority. However, the above statement is consistent with the ordinary meaning of the term and is based upon the construction of a conflict of interest prohibition in U.S. v. Mississippi Valley Co. (1961) 364 U.S. 520, 555, 560 [5 L.Ed.2d 268, 291-292, 294-295, 81 S.Ct. 294].
(4) With the above explanation in mind, we conclude that it was not "reasonably foreseeable" that the preliminary injunction in the Latimore litigation could affect the security of Smith's or his wife's employment with the county. The federal court itself made this quite clear. In replying to the county's argument that the preliminary injunction could have an impact on the quality of the county's health care, the federal court stated that the argument was "evidently premised on the faulty assumption that the proposed injunction will immediately disperse County physicians from Merrithew to the outlying district hospitals.... The County defendants disregard the fact that the injunction does not implement the plaintiffs' proposal, and therefore, will not affect the placement of the County's medical staff, the services provided by the County, or the public's access to Merrithew." The preliminary injunction delayed temporarily the construction of the new hospital. Whether the federal litigation will eventually have an impact on physician employees is itself speculative. However, whether the preliminary injunction could have an impact is not even speculative. The injunction required no change in county health services. Whether or not it was appealed could have had no material financial effect on Smith or his wife.
It is not necessary to determine the dispute as to the timeliness and admissibility of Dr. O'Rourke's declaration. Dr. O'Rourke did not distinguish between the preliminary injunction and the possible final determination in the Latimore litigation. Dr. O'Rourke was of the opinion that there would be an impact on physician employees if county physicians are required to practice in-patient services at district hospitals. He offered no opinion, however, as to whether this could be the result of the preliminary injunction.
*213 CONCLUSION
Let a peremptory writ of mandate issue directing respondent court to vacate its order of August 26, 1994.
Anderson, P.J., and Poche, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263277/ | 239 P.3d 489 (2010)
2010 OK CIV APP 85
WESTVILLE NURSING HOME, INC., and CCG & K, LLC, Plaintiffs/Appellants,
v.
CITY OF WESTVILLE, Oklahoma, Defendant, and
Westville Utility Authority, Appellee.
No. 107,175. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.
Court of Civil Appeals of Oklahoma, Division No. 2.
August 6, 2010.
*490 George Mullican, Charles A. McSoud, Oliver L. Smith, Christopher D. Wolek, Gibbs, Armstrong, Borochoff, Mullican and Hart, P.C., Tulsa, OK, for Plaintiffs/Appellants.
C. Bart Fite, Fite Law Firm, Muskogee, OK, for Appellee.
JANE P. WISEMAN, Chief Judge.
¶ 1 Plaintiffs appeal from the trial court's orders denying their motion to amend the petition to add a party defendant and granting Westville Utility Authority's motion to dismiss.[1] Having reviewed the record and pertinent law, we find this appeal must be dismissed due to a lack of an appealable order.
¶ 2 This action involves problems with a sewer line causing raw sewage to back up into Plaintiffs' nursing home facility on January 13, 2007. On April 19, 2007, Plaintiffs served a notice of tort claim on the Mayor of the City of Westville, Brian Sitsler, which was denied by operation of law after the expiration of ninety days, i.e., July 19, 2007. On November 21, 2007, Plaintiffs filed a petition against the City of Westville alleging City was liable to Plaintiffs for damages caused by the sewage backup due to City's negligent maintenance of the sewer.
¶ 3 On December 28, 2007, City filed an entry of appearance and requested an additional twenty days to file a responsive pleading. On January 28, 2008, Plaintiffs filed a motion for default judgment after receiving no responsive pleading from City. On February 25, 2008, City filed an application to answer out of time and filed an answer. The trial court granted City's application on April 29, 2008.
¶ 4 On July 18, 2008, Plaintiffs moved for leave to amend the petition to add Authority as a defendant to the action and they attached the proposed amended petition as an exhibit to the motion. Although the trial court had yet to rule on Plaintiffs' motion for leave to amend, both City and Authority filed motions to dismiss.[2]
¶ 5 In an order filed November 25, 2008, the trial court granted Authority's motion to dismiss and denied Plaintiffs' motion to amend the petition finding as follows:
The Plaintiff's [sic] motion to amend petition to add additional parties is denied.
The Court further finds that the Governmental Tort Claims Act, 51 O.S. § 151 et seq. bars the institution of this action *491 against the Defendant, Westville Utility Authority.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Motion to Dismiss filed by the Defendant, Westville Utility Authority, is hereby granted with all costs being discharged herein.
¶ 6 Plaintiffs filed a motion to vacate/reconsider "the Court's Decision Denying Plaintiffs' Motion to Amend Petition."[3] In a minute order filed November 25, 2008, the trial court denied Plaintiffs' motion to reconsider and denied City's motion to dismiss.
¶ 7 On May 12, 2009, the trial court issued the following order:
Upon review of the briefs and having heard oral arguments regarding the same, this Court finds that the Order dismissing [Authority] and filed herein on November 25, 2008, should be deemed a final judgment. This court finds that there is no just reason for delay and expressly directs the filing of the judgment pursuant to the provisions of 12 O.S. § 994(A).
Plaintiffs appeal.
¶ 8 Our analysis of the record including the trial court docket sheet leads us to conclude that this appeal must be dismissed as premature. Plaintiffs filed their motion to vacate/reconsider the trial court's decision on their motion for leave to amend and the Authority's motion to dismiss prior to the November 25, 2008, formalization of that decision. It was therefore filed within ten days of the November 25, 2008, order and because it seeks reconsideration of that order, it should be treated as a motion for new trial filed pursuant to 12 O.S.2001 § 991. Horizons, Inc. v. Keo Leasing Co., 1984 OK 24, ¶ 4, 681 P.2d 757, 758-59 ("A motion seeking reconsideration, re-examination, rehearing or vacation of a judgment or final order, which is filed within 10 days of the day such decision was rendered, may be regarded as the functional equivalent of a new trial motion, no matter what its title.")
¶ 9 The time to appeal the November 25, 2008, order was extended by the filing of Plaintiffs' motion for new trial. 12 O.S. Supp.2009 § 990.2(A). The time to appeal both orders does not begin until the filing of a final order in statutory form of the order disposing of the motion for new trial.
¶ 10 We find the November 25, 2008, "Court Minute" has not disposed of Plaintiffs' motion for new trial. Even if this minute order facially appears to meet the requirements set forth in 12 O.S. Supp.2009 § 696.3, we cannot consider it as a "judgment, decree or appealable order" because it is titled "Court Minute." Corbit v. Williams, 1995 OK 53, ¶ 9, 897 P.2d 1129, 1131. Title 12 Supp.2009 § 696.2(D) clearly states that a minute entry does "not constitute a judgment, decree or appealable order." This is reiterated by the Supreme Court in Corbit: "[A]n order of the District Court titled `Court Minute' is not a judgment, decree or appealable order for the purpose of commencing the time to appeal." Corbit, 1995 OK 53 at ¶ 9, 897 P.2d at 1131.
¶ 11 Section 990.2(A) provides that "an appeal shall not be commenced until an order disposing of the motion is filed with the court clerk." 12 O.S. Supp.2009 § 990.2(A). Until that motion is resolved, the trial court may revise, reverse, or withdraw its initial ruling on the motion.
¶ 12 The filing of a judgment or appealable order that conforms to the requirements of § 696.3 is "a jurisdictional prerequisite to the commencement of an appeal." 12 O.S. Supp. 2009 § 696.2(D). Because the November 25, 2008, handwritten court minute denying Plaintiffs' motion for new trial is not a judgment, decree or appealable order, this appeal is premature. We have no jurisdiction to entertain this appeal on its merits, and it must be dismissed. To avoid such procedural pitfalls, the better practice would be to avoid the use of courthouse forms bearing the title of "court minute" and for the trial court to direct counsel to prepare a draft for *492 the court's signature as provided in 12 O.S. Supp.2009 § 696.2(A).[4]
¶ 13 DISMISSED.
FISCHER, P.J., and BARNES, J., concur.
NOTES
[1] Plaintiffs state in their petition in error that they appeal only from the trial court's order denying Plaintiffs' motion for leave to file an amended petition and granting Authority's motion to dismiss. However, Plaintiffs state in their brief in chief they are also appealing from the trial court's order denying their motion to reconsider/vacate.
[2] We note the docket sheet and record reflect that Plaintiffs' proposed amended petition attached to their motion was also separately file stamped the same day as their motion to amend.
[3] Although Plaintiffs titled their motion as one to vacate or reconsider "the Court's Decision Denying Plaintiffs' Motion to Amend Petition," Plaintiffs refer to the motion during the hearing and in its motion to set hearing as also requesting vacation of the trial court's decision granting Authority's motion to dismiss.
[4] Title 12 Section 696.2(A) provides:
"After the granting of a judgment, decree or appealable order, it shall be reduced to writing in conformance with Section 696.3 of this title, signed by the court, and filed with the court clerk. The court may direct counsel for any party to the action to prepare a draft for the signature of the court, in which event, the court may prescribe procedures for the preparation and timely filing of the judgment, decree or appealable order, including, but not limited to, the time within which it is to be submitted to the court. If a written judgment, decree or appealable order is not submitted to the court by the party directed to do so within the time prescribed by the court, then any other party may reduce it to writing and submit it to the court." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263280/ | 31 Cal.App.4th 1048 (1995)
37 Cal. Rptr.2d 501
SAN DIEGO HOSPICE, Plaintiff and Appellant,
v.
COUNTY OF SAN DIEGO, Defendant and Respondent.
Docket No. D018211.
Court of Appeals of California, Fourth District, Division One.
January 24, 1995.
*1050 COUNSEL
Higgs, Fletcher & Mack, John Morris, Michael F. Boyle and Greg A. McAtee for Plaintiff and Appellant.
Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, and Scott H. Peters, Deputy County Counsel, for Defendant and Respondent.
OPINION
FROEHLICH, J.
This case again presents the question: when is a comprehensive release enforceable? The San Diego Hospice (Hospice) acquired land formerly owned by the County of San Diego (County), and later discovered the land was contaminated by hazardous materials. Hospice made a claim against County, which claim was settled. The settlement agreement and release contemplated that "[a]dditional pollutants ... may exist on the *1051 site which have not yet been discovered," but nevertheless released County from all claims "past, present and future, known or unknown, suspected or unsuspected with respect to the site." However, when a second source of contamination was later discovered, Hospice sought to rescind the release. The trial court rejected that effort, and Hospice appeals.
1. Facts
A. The Property
Between 1880 and 1987 County owned "Vauclain Point" (hereafter the property), and between 1916 and 1920 a hospital was constructed on the property. Sometime around 1929 a high-pressure steam conduit, insulated with asbestos, was built on the property. Also installed on the property was a 2,500-gallon underground storage tank (hereafter the first tank).
The property contained an additional tank (hereafter the second tank) which had been placed on the site sometime prior to 1921. This was a 450-gallon tank which was placed underground adjacent to the kitchen of the old hospital and apparently had held fuel for cooking purposes.
B. The Sale and Settlement
In 1986 County agreed to sell the property to Hospice, and escrow closed in early 1987. At the time the sale closed, Hospice was unaware the property had been contaminated.
In April 1989 Hospice began construction activities, which ceased almost immediately because of the discovery of the asbestos contamination. By August 1989 Hospice had conducted an environmental investigation (including a sonogram of the property) and had discovered additional environmental problems, such as contaminated ash and fuel leakage from the first tank. However, the second tank was not discovered during this period. Hospice filed a damage claim with County for the problems created by the asbestos, the ash and the first tank.
The parties thereafter negotiated a settlement, the agreement of which they executed in late August 1989.[1] The terms of the settlement agreement are crucial. The parties recited that after transfer of the property Hospice had *1052 "discovered the presence of certain pollutants, contaminants, wastes or hazardous substances on the site.... Additional pollutants, contaminants, wastes or hazardous substances may exist on the site which have not yet been discovered."
The parties then recited that Hospice had made a claim against County, that County had denied liability, but that "[i]t is now the intention and desire of the Hospice and the County to fully and finally resolve all disputes that exist or hereafter could arise between them with respect to the site." The agreement required County to pay $435,000 to remedy the asbestos and all costs necessary to abate the ash contamination. In return, Hospice expressly agreed the release was to encompass all claims "... past, present and future, known or unknown, suspected or unsuspected, with respect to the site, ..." and expressly waived California Civil Code section 1542.
C. Discovery of the Second Tank
In the fall of 1990, during construction, the second tank was discovered and removed by Hospice. This second tank had not been reflected on any maps previously given by County to Hospice.
Sometime during 1991, Mr. Dan Johnson (an employee of an environmental consulting firm which had previously done work for Hospice) was working on an unrelated project and examining a packet of maps prepared in 1921 by the Sanborn Map Company. He noticed there was a map of the property depicting an underground storage tank adjacent to the kitchen of the old hospital. He reported his discovery to Hospice.
Some evidence existed to suggest this 1921 Sanborn map derived its information about the presence and location of the second tank from maps on file with County prior to 1921. Mr. William Ring, a County map expert, indicated the 1921 Sanborn map could have been based on or derived from County maps, but that the Sanborn map was not itself a county map. He further indicated he had personally searched County records and had not located any maps showing this underground feature.
2. The Lawsuit
Hospice's lawsuit against County sought (1) to rescind the release (under several theories, including intentional and negligent misrepresentation and *1053 constructive fraud), and (2) to recover damages from County for the costs of remediation for the second tank. County moved for summary judgment based on the release. It argued: (1) Hospice's claim for rescission lacked merit; and (2) the release was fully effective to bar the damage claims. Hospice filed a cross-motion for summary adjudication, arguing the release was unenforceable due to fraudulent concealment of the second tank or unilateral mistake.
The court granted County's motion and denied Hospice's motion. The court determined the settlement agreement placed Hospice on notice of the potential for other polluting sources to exist on the site, and Hospice nevertheless assumed the risk such sources might be present. The court also concluded Hospice was "charged" with notice of the second tank under the doctrine of "imputed notice."
3. The Release Contemplated That Other Sources of Contamination Might Be Present, but Clearly and Unambiguously Released County From Any Liability for Pollutants Which Might Thereafter Be Discovered
(1) This court has held that a general release can be completely enforceable and act as a complete bar to all claims (known or unknown at the time of the release) despite protestations by one of the parties that he did not intend to release certain types of claims. (Winet v. Price (1992) 4 Cal. App.4th 1159, 1173 [6 Cal. Rptr.2d 554].)
(2a) Examination of the present release convinces us it was intended and designed to cover precisely the eventuality of an unknown source of contamination. The parties here declared that their dispute arose because County sold property to Hospice without disclosing certain areas of contamination. The parties then recite that "[a]dditional pollutants, contaminants, wastes or hazardous substances may exist on the site which have not yet been discovered," but that it was the parties' "intention and desire ... to fully and finally resolve all disputes that exist or hereafter could arise between them with respect to the site." (Italics added.) After specifying what obligations County agreed to undertake (i.e., the monetary payment plus payment of all costs necessary to abate the ash contamination), the release provided that Hospice would fully release County from all claims "... past, present and future, known or unknown, suspected or unsuspected with respect to the site...." To eliminate any doubt as to the scope of the release, the parties recited and expressly waived the protections afforded by Civil Code section 1542.
This case is controlled by Winet. In Winet the releasor argued that a similarly constructed release, which explicitly covered "unknown or unanticipated" claims, was not intended to cover claims for malpractice of which *1054 he was unaware. This court affirmed the summary judgment in favor of the releasee, noting (1) both parties had been represented by counsel; (2) the releasor had been aware of the potential of a suit for malpractice; (3) with this awareness and advice of counsel the releasor agreed to release unknown claims, explicitly waiving the protections of Civil Code section 1542. This court concluded: "Under these circumstances we may not give credence to a claim that a party did not intend clear and direct language to be effective." (Winet v. Price, supra, 4 Cal. App.4th at p. 1168.)
Similarly, Hospice was represented by counsel. Hospice was clearly aware of both its legal rights to sue for damages for contamination and the potential for undiscovered sources of pollution to be still plaguing the site. With this awareness and advice of counsel Hospice agreed to release unknown claims and explicitly waived the protections of Civil Code section 1542. Hospice cannot now contend it did not understand the risks it assumed or did not intend to release County from unknown problems.
4. The Trial Court Correctly Rejected Hospice's Effort to Vitiate the Release Based on Fraud
Hospice claims it may rescind the release because it was induced to enter into the agreement by County's "fraud." (3) We acknowledge that cases have suggested a releasor might be permitted to avoid a release if he was induced to enter the agreement because of fraud practiced by the releasee. (See, e.g., King v. Associated Construction Corp. (1960) 183 Cal. App.2d 818, 822 [7 Cal. Rptr. 182] [dictum].) However, the King case and others involved either "fraud in the inception" or misrepresentations by a fiduciary.[2] Neither doctrine is applicable here. Hospice does not claim it was *1055 unaware of the nature or contents of what it signed, nor does it contend County owed it any fiduciary obligations.[3]
Hospice's fraud claim is premised on an entirely distinct theory: fraudulent nondisclosure. Hospice claims County (1) "knew" of the second tank, based on "imputed knowledge," (2) had the duty to disclose the information, and (3) failed to disclose the information. We reject Hospice's theory because we perceive no basis for finding any duty to disclose in this case. (4) A party seeking rescission based on fraudulent nondisclosure must show (1) the defendant failed to disclose a material fact which he knew or believed to be true, and (2) the defendant had a duty to disclose that fact. (Welch v. State of California (1983) 139 Cal. App.3d 546, 556 [188 Cal. Rptr. 726].) The duty to disclose arises when two elements are present: (1) the material fact is known to (or accessible only to) the defendant; and (2) the defendant knows the plaintiff is unaware of the fact and cannot reasonably discover the undisclosed fact.[4] (Reed v. King (1983) 145 Cal. App.3d 261, 265 [193 Cal. Rptr. 130]; Karoutas v. HomeFed. Bank (1991) 232 Cal. App.3d 767, 771 [283 Cal. Rptr. 809].)
Since the second prong giving rise to an affirmative obligation to disclose rests on the defendant's knowledge of significant facts the plaintiff needs but does not have, we conclude the duty cannot arise when, as here, such significant facts are not actually known to the defendant. There is no evidence that when County entered the release it actually knew of the second tank, either from information possessed by current employees or records kept by County. Instead, Hospice claims the first element knowledge of the *1056 fact can be satisfied merely by showing imputed knowledge.[5] Even assuming imputed knowledge satisfies the first element of the "duty" analysis, we cannot perceive how imputed knowledge can satisfy the second element giving rise to a duty to disclose: scienter. (Lingsch v. Savage (1963) 213 Cal. App.2d 729, 738-739 [29 Cal. Rptr. 201, 8 A.L.R.3d 537] [duty to disclose requires scienter: defendant must know the facts and also know that plaintiff is ignorant of those facts].) In other words, Hospice seeks to charge County, as principal, with knowledge of something of which County was in fact unaware. If a principal is actually unaware of the material fact, how is the principal to know that the plaintiff is also unaware or cannot reasonably discover the material fact? The duty to disclose requires some element of scienter knowledge of the other party's ignorance. We cannot perceive how it is possible for a principal to know the other party is ignorant of something of which the principal is equally ignorant.
We are unwilling to impose upon a party a duty to disclose when, as here, that party cannot possibly satisfy the duty. If we were to hold that County did have a "duty to disclose" something unknown to its current employees and not reflected in any of its records, we would be imposing upon County a duty it would be doomed to breach.
(2b) After closely examining the cases on which Hospice relied, we are unconvinced that they stand for any contrary conclusion. In one group of cases the courts imputed knowledge to the defendant based on information actually known to existing agents or employees. (See People v. Forest E. Olson, Inc. (1982) 137 Cal. App.3d 137, 139-140 [186 Cal. Rptr. 804]; United California Bank v. Maltzman (1974) 44 Cal. App.3d 41, 51-52 [118 Cal. Rptr. 299]; Sanders v. Magill (1937) 9 Cal.2d 145, 154 [70 P.2d 159]; Railroad Co. v. Spring Valley W. Co. (1927) 87 Cal. App. 188, 192-193 [262 P. 53].) In the other group of cases the courts held that the entity had knowledge of what was actually contained in the records of the entity. (See, e.g., Welch v. State of California (1983) 139 Cal. App.3d 546, 556-557 [188 Cal. Rptr. 726]; Rodriguez v. City of Los Angeles (1963) 215 Cal. App.2d 463, 468-469 [30 Cal. Rptr. 180].) County may well have been obliged to disclose the second tank if any of its existing agents had actually known of its existence or if County records reflected that tank; however, neither element is present here.
Hospice, apparently recognizing that its claim falls outside the ambit of the foregoing authorities, relies on a passage in Sanfran Co. v. Rees Blow *1057 Pipe Mfg. Co. (1959) 168 Cal. App.2d 191 [335 P.2d 995] for the proposition that so long as some agent in the past had been aware of a fact, the entity remains charged with his knowledge even though the agent has departed and the company records are silent on the issue. We are unpersuaded by Sanfran.
First, examination of Sanfran shows the passage on which Hospice relied was dictum. In Sanfran the plaintiff bought a building represented to be a "Class C" building. Plaintiff later sued for fraud, alleging the fraudulent acts included (1) concealing the fact that the building lacked the side walls necessary to qualify as a "Class C" building, and (2) concealing the fact that the building had been modified in violation of certain permit requirements. (Sanfran Co. v. Rees Blow Pipe Mfg. Co., supra, 168 Cal. App.2d at pp. 203-204.) On appeal from the judgment in plaintiff's favor, defendant claimed the judgment was not supported by the evidence. The court found ample evidence of the first concealment, since an existing officer of the defendant actually knew of the true facts but failed to disclose them. (Id. at p. 203.) In the passage on which Hospice relied, the Sanfran court opined that the second concealment had also been proved, even though existing officers did not know of the permit violations, because a prior corporate agent had known of the permit requirements, and "no subsequent change of officers could take away this notice and knowledge" imputed to the entity. (Id. at p. 204.) Although Hospice seizes on this latter aspect of Sanfran, Hospice overlooks the fact that the Sanfran court specifically prefaced this "imputed knowledge" analysis by noting it was unnecessary to its decision. (Ibid.) Thus, the "imputed knowledge" analysis in Sanfran is entirely dictum.[6]
Additionally, the Sanfran analysis rested on a single case The Mechanics' Bank of Alexandria v. Seton (1828) 26 U.S. (1 Pet.) 299 [7 L.Ed. 152] (hereafter Seton). Despite its ancient vintage, Seton has not been cited by any California case (other than the Sanfran dictum) for the proposition that an entity is forever charged with the duty to disclose information known to prior agents but unknown to current agents and unreflected by records of the entity.[7] Although Hospice is represented by able counsel who have thoroughly briefed the relevant issues, of the cases cited only Seton and the Sanfran dictum it spawned serve as authority for Hospice's position. We *1058 decline to perpetuate such a thinly grounded holding, particularly because it would create an obligation of disclosure which as a practical matter would always be violated.
5. Hospice Cannot Rescind the Release Based on Economic Duress
Hospice alternatively argues it is entitled to rescind the release because of "economic duress."[8] (5) Economic duress has been recognized as a basis for rescinding a settlement. However, the courts, in desiring to protect the freedom of contracts and to accord finality to a privately negotiated dispute resolution, are reluctant to set aside settlements and will apply "economic duress" only in limited circumstances and as a "last resort." (Rich & Whillock, Inc. v. Ashton Development, Inc. (1984) 157 Cal. App.3d 1154, 1158-1159 [204 Cal. Rptr. 86].) In Rich & Whillock this court noted that reasonable settlements are both acceptable and desirable, but that "wrongful exploitation of business exigencies to obtain disproportionate exchanges of value" (id. at p. 1159) can be set aside. In Rich & Whillock several criteria coalesced to raise "economic duress" as a ground to escape a settlement: (1) the debtor knew there was no legitimate dispute and that it was liable for the full amount; (2) the debtor nevertheless refused in bad faith to pay and thereby created the economic duress of imminent bankruptcy; (3) the debtor, knowing the vulnerability its own bad faith had created, used the situation to escape an acknowledged debt; and (4) the creditor was forced to accept an inequitably low amount. (Id. at pp. 1156-1157.)
(2c) None of the factors present in Rich & Whillock was present here when the settlement was entered into. There was a legitimate dispute over liability, rather than an acknowledged debt. The "duress" arose not from County's refusal to pay an acknowledged debt but from the discovery of contamination. Most importantly, County did not use Hospice's plight to force Hospice to accept an inequitably low amount; instead, it appears County agreed to pay the entire cost of cleaning up those contaminants known to the parties. While in hindsight this settlement was less than Hospice could have sought from County, at the time of the agreement the settlement amount can hardly be deemed an inequitably low settlement.
In summary, there was a legitimate dispute, an uncertain amount owed, and a settlement shown to be not harsh when measured as of the time it was *1059 entered. Under these circumstances economic duress cannot be invoked merely because it was unwise in retrospect for Hospice to have assumed certain risks.
DISPOSITION
The judgment is affirmed.
Huffman, Acting P.J., and Nares, J., concurred.
NOTES
[1] Hospice was under pressure to reach a settlement. Specifically, delaying the project (1) forced Hospice to incur delay costs under its contract with the general contractor, (2) threatened the loss of the project because the conditional use permit was set to expire within six months of the settlement, and (3) caused a major benefactor of the project to inform Hospice it might revoke its grant if the project were unduly delayed. County was aware Hospice was under pressure to resolve the contamination issue.
[2] Our review of the authorities discussing "fraud" as a basis for avoiding a release indicates there have been three scenarios in which a releasor was allowed to avoid his release. The first group involved "fraud in the inception" that is, misrepresenting the nature or contents of the document being executed. (Meyer v. Haas (1899) 126 Cal. 560, 563 [58 P. 1042]; Mairo v. Yellow Cab Co. (1929) 208 Cal. 350, 352 [281 P. 66]; Raynale v. Yellow Cab Co. (1931) 115 Cal. App. 90, 92 [300 P. 991].) In the second type of case the release was obtained by a fiduciary without full disclosure of the relevant facts. (See, e.g., Chung v. Johnston (1954) 128 Cal. App.2d 157, 163-165 [274 P.2d 922].) A third group of cases (represented by Chung v. Johnston, supra, and Ellis v. Jones (1932) 121 Cal. App. 325 [8 P.2d 933]) has discussed fraud as a ground for not applying a release to an unknown claim. However, in this last group of cases the "fraud" prevented the releasor from knowing about his claim, and because Civil Code section 1542 specifies a release does not cover unknown claims under some conditions, the court simply held that the general release did not apply to the unknown claims. (See, e.g., Chung v. Johnston, supra, 128 Cal. App.2d at p. 163.)
[3] Hospice's complaint did contain a count for "constructive fraud." This type of fraud requires a fiduciary relationship (Byrum v. Brand (1990) 219 Cal. App.3d 926, 937-938 [268 Cal. Rptr. 609]), but Hospice does not contend such a relationship existed here. Instead, Hospice concedes on appeal that its constructive fraud count merely restates its fraudulent nondisclosure claim.
[4] A duty to disclose may also arise in the so-called "half truth" context that is, when a speaker makes a representation which, though not false, he knows will be misleading absent full disclosure of additional facts known to him which qualify the initial representation. (McCue v. Bruce Enterprises, Inc. (1964) 228 Cal. App.2d 21, 25-26 [39 Cal. Rptr. 125].) Hospice argues County had a duty to disclose under this theory because it made a representation (i.e., "[a]dditional pollutants ... may exist on the site which have not yet been discovered"), which was misleading in implying there were no pollutants when in fact County "knew" of additional pollutants. We doubt whether a statement that other problems "may exist" could possibly mislead a person to understand that other problems "do not exist." However, since we conclude a duty to disclose requires some scienter, absent here, we need not separately evaluate whether the statement here was either a representation by County or one likely to mislead.
[5] Hospice imputes knowledge by arguing that an agent of County knew (at some point during this century) of the second tank, and that therefore County is charged ad infinitum with knowledge of the second tank, even though no current employee had actual knowledge and the records held by County were devoid of any actual record of the second tank.
[6] In addition, Sanfran did not indicate, one way or the other, whether the knowledge it "imputed" as to the permit requirements might have been contained in the corporate files.
[7] We question whether Seton even stands for that proposition. In Seton the issue was whether the bank could levy on stock held in the name of a Mr. Lynn, or whether it was charged with notice that Lynn held it as trustee for third parties. Lynn knew of the status of the stock, and apparently was a current member of the board of directors for the bank (Seton, supra, 26 U.S. at p. 302 [7 L.Ed. at pp. 153-154]); hence, it appears a current agent had notice of the fact to be imputed. Seton's facts thus undercut the precise proposition for which it was cited by Sanfran.
[8] We question whether economic duress should be considered on its merits, since (1) it was not pleaded as a basis for rescission; (2) Hospice never sought leave to amend to raise the claim; and (3) it was first asserted in Hospice's opposition to County's motion for summary judgment. In light of our conclusion, however, any prejudice to County resulting from encountering this tardy claim is harmless. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263282/ | 893 A.2d 725 (2006)
384 N.J. Super. 1
Robert ROSS, Plaintiff-Appellant,
v.
Gary E. RUPERT, Defendant-Respondent.
Superior Court of New Jersey, Appellate Division.
Argued February 1, 2006.
Decided February 27, 2006.
*726 James R. Radmore, Philadelphia, PA, argued the cause for appellant.
Robert M. Kaplan, Westmont, argued the cause for respondent (Margolis Edelstein, attorneys; Mr. Kaplan, on the brief).
Before Judges STERN, FALL and GRALL.
The opinion of the court was delivered by
STERN, P.J.A.D.
Plaintiff appeals from an order entered on October 21, 2005, which denied plaintiff's "motion for relief from [an] order" pursuant to R. 4:50-1. Summary judgment had been entered on April 16, 2004, dismissing the complaint for failure to satisfy the "limitation on lawsuit" threshold (frequently called the "verbal threshold") under the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 36:6A-1.1 to-35. See N.J.S.A. 39:6A-8(a). No appeal or timely motion for reconsideration was filed after summary judgment was entered. See R. 2:4-1(a); R. 4:49-2. However, on October 5, 2005, over seventeen months after summary judgment was granted,[1] plaintiff filed the "motion for relief" following the decision of the Supreme Court in DiProspero v. Penn, 183 N.J. 477, 506, 874 A.2d 1039 (2005), which eliminated the requirement that a plaintiff must demonstrate a serious life impact to satisfy the verbal threshold. We accelerated the argument in this case to settle the question of whether DiProspero should be applied retroactively beyond the "pipeline" of cases that were pending when it was decided. See Beltran v. DeLima, 379 N.J.Super. 169, 173, 877 A.2d 307 (App.Div.2005) (applying "pipeline retroactivity" to DiProspero). See also, e.g., Juarez v. J.A. Salerno & Sons, 185 N.J. 332, 886 A.2d 178 (2005) (applying DiProspero and Serrano v. Serrano, 183 N.J. 508, 874 A.2d 1058 (2005), to an appeal pending when those opinions were filed); orders on petitions for certification, 185 N.J. at 23-29 (2005); Pungitore v. Brown, 379 N.J.Super. 165, 877 A.2d 305 (App.Div.2005). We now affirm.
Plaintiff argues that:
The Supreme Court has unambiguously ruled that the serious life impact standard no longer applies and that a plaintiff need only prove an enumerated injury was suffered and this ruling should apply retroactively to all claims subject to the verbal threshold of the Automobile Insurance Cost Reduction Act that were dismissed for failure to meet this standard.
In essence, plaintiff asks us to extend Beltran and give retroactivity "to all cases filed under [AICRA] that were dismissed for failure to meet the serious life impact standard."
In James v. Torres, 354 N.J.Super. 586, 596, 808 A.2d 873 (App.Div.2002), certif. denied, 175 N.J. 547, 816 A.2d 1049 (2003), we held that the serious life impact requirement developed in Oswin v. Shaw, 129 N.J. 290, 317-19, 609 A.2d 415 (1992), survived the passage of AICRA and was implicitly incorporated within it for purposes of evaluating a summary judgment motion in a verbal threshold case. The Supreme Court's denial of certification in James, although "not a disposition on the merits[,]" "suggested to some the Supreme Court's concurrence in the view we expressed in that case. ..." Beltran, supra, 379 N.J.Super. at 172, 877 A.2d 307.
On June 14, 2005, the Supreme Court "resolved [the] longstanding controversy *727 over the proper interpretation of N.J.S.A. 39:6A-8a." Beltran, supra, 379 N.J.Super. at 171, 877 A.2d 307. In DiProspero, supra, 183 N.J. at 506, 874 A.2d 1039, the Supreme Court overruled James and held that "[n]othing in AICRA's preamble, its legislative history, or its policy objectives suggests that the Legislature intended this Court to write in [a serious life impact] standard." See also Serrano v. Serrano, supra, 183 N.J. at 509-10, 514-16, 874 A.2d 1058 (companion case). Thus, the Supreme Court held that to survive summary judgment under the verbal threshold in an action for non-economic damages, a plaintiff only had to prove that he or she suffered from one of the six bodily injuries set forth in N.J.S.A. 39:6A-8(a). Ibid. DiProspero, supra, 183 N.J. at 506, 874 A.2d 1039; Serrano, supra, 183 N.J. at 510, 874 A.2d 1058.
Thereafter, in Beltran, supra, 379 N.J.Super. at 176-77, 877 A.2d 307, we concluded that DiProspero and Serrano were "applicable to all prejudgment matters pending in the trial courts and to those matters that [were] on direct appeal" at the time they were decided. We expressly declined to consider "whether to give the new rule complete retroactive effect, applying it to all cases, even if final judgments have been entered and avenues of direct appeal have been exhausted[,]" since this issue had not been presented. Id. at 174 n. 1, 877 A.2d 307.
In reaching our decision to give DiProspero "pipeline retroactivity," we noted that the Supreme Court had "established a new rule of law as to which retroactivity analysis is appropriate. ..." Id. at 173, 877 A.2d 307 (citations omitted). We addressed the policy considerations relevant to the retroactivity of "a new rule of law," and found it "difficult to fault those who relied upon James as setting forth the proper interpretation of the limitation on lawsuit provisions of N.J.S.A. 39:6A-8a, particularly after certification was denied to that decision." Id. at 174, 877 A.2d 307. Moreover, we concluded that "[i]t would be unfair not to accord the Supreme Court's newly-announced rule" limited retroactivity to cases other than DiProspero and Serrano that had launched similar "challenges to the utilization of the Oswin model and the interpretation of Oswin's precepts [which] remain pending, simply because they did not constitute the vehicle for the Supreme Court's decision." Id. at 175, 877 A.2d 307.
On the other hand, we acknowledged "the tsunami effect that retroactive application of DiProspero and Serrano may have on the administration of justice," including the possibility of "overwhelm[ing] the calendars of the trial courts" and creating "a substantial backlog in matters to be tried. ..." Id. at 176, 877 A.2d 307. We also recognized that this was an issue for the Legislature "to consider when pondering whether its manner of resolving the automobile insurance cost crisis achieved its desired goal." Ibid.
In Camacho v. Camacho, 381 N.J.Super. 395, 401, 886 A.2d 212 (Law Div.2005), the Law Division subsequently declined to extend our holding in Beltran to a case similarly involving an untimely application for reconsideration. Judge Steven Perskie took the same approach in the present case, which was dismissed on summary judgment fourteen months prior to the decision in DiProspero. We agree with the Law Division in both matters, and therefore affirm the order under review. Were we to allow this case to be reopened, all cases since 1998 that were dismissed for failure to satisfy the serious life impact prong under the verbal threshold would have to be reopened irrespective of whether the plaintiffs had endeavored to appeal *728 or seek certification following the grant of summary judgment against them.
There are four basic options for deciding a case involving an issue of retroactivity. State v. Burstein, 85 N.J. 394, 402-03, 427 A.2d 525 (1981). These options are:
(1) make the new rule of law purely prospective, applying it only to cases whose operative facts arise after the new rule is announced; (2) apply the new rule to future cases and to the parties in the case announcing the new rule, while applying the old rule to all other pending and past litigation; (3) grant the new rule limited retroactivity, applying it to cases in (1) and (2) as well as to pending cases where the parties have not yet exhausted all avenues of direct review; and, finally, (4) give the new rule complete retroactive effect, applying it to all cases, even those where final judgments have been entered and all avenues of direct review exhausted.
[Ibid. (citing State v. Nash, 64 N.J. 464, 468-70, 317 A.2d 689 (1974)).]
See also, e.g., State v. Knight, 145 N.J. 233, 249-53, 678 A.2d 642 (1996).
In deciding whether to apply a new rule of law retroactively or prospectively, the factors to be considered include:
(1) the purpose of the new rule and whether it would be furthered by retroactive application; (2) the reliance placed on the old rule by those charged with administering it; and (3) the effect that retroactive application would have on the administration of justice.
[Burstein, supra, 85 N.J. at 406, 427 A.2d 525 (citations omitted) (emphasis added).]
See also, e.g., Henderson v. Camden County Mun. Util. Auth., 176 N.J. 554, 561-63, 826 A.2d 615 (2003); Frazier v. New Jersey Mfrs. Ins. Co., 142 N.J. 590, 606-07, 667 A.2d 670 (1995); Montells v. Haynes, 133 N.J. 282, 295-98, 627 A.2d 654 (1993); Williams v. Bell Tel. Labs. Inc., 132 N.J. 109, 122-23, 623 A.2d 234 (1993); Beltran, supra, 379 N.J.Super. at 174, 877 A.2d 307 (citing Coons v. Am. Honda Motor Co., Inc., 96 N.J. 419, 426, 476 A.2d 763 (1984), cert. denied, 469 U.S. 1123, 105 S.Ct. 808, 83 L.Ed.2d 800 (1985)).
In the case before us, the "new rule of law" deals with an initial interpretation by the Supreme Court of a statute that has been on the books since 1998.[2] Moreover, and quite significant for present purposes, the motion for relief was filed long after the time in which to move for reconsideration or file an appeal had passed, and plaintiff asks us to extend Beltran's "pipeline retroactivity" to this case despite the longstanding final judgment. However, this is not a criminal case involving constitutional issues or implicating the trustworthiness of the fact-finding process. See, e.g., Hankerson v. North Carolina, 432 U.S. 233, 240-44, 97 S.Ct. 2339, 2344-45, 53 L.Ed.2d 306, 314-16 (1977); Ivan v. City of New York, 407 U.S. 203, 204-05, 92 S.Ct. 1951, 1952, 32 L.Ed.2d 659, 661-62 (1972). Compare, e.g., Knight, supra, 145 N.J. at 253-58, 678 A.2d 642 (declining to apply new rule of law to post-conviction applications after direct appeals had been exhausted because new rule of law "did not substantially impair the reliability of the truth-finding process"). Hence, there is no basis for granting full retroactivity beyond the "pipeline."
*729 Instead, we deal with principles of finality under R. 4:50-1, and the possibility of prejudice caused by the fact that files have been closed and witnesses lost.[3]R. 4:50-1 permits a court to relieve a party from a final judgment after the time for filing a motion for reconsideration or an appeal has expired for the following reasons:
(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49: ... (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.
[R. 4:50-1 (emphasis added).]
A motion for relief on any of these grounds "shall be made within a reasonable time, and for reasons (a), (b) and (c) of R. 4:50-1 not more than one year after the judgment, order or proceeding was entered or taken." R. 4:50-2.
"Rule 4:50-1 provides for extraordinary relief and may be invoked only upon a showing of exceptional circumstances." Baumann v. Marinaro, 95 N.J. 380, 393, 471 A.2d 395 (1984). However,
a "change in the law or in the judicial view of an established rule of law is not such an extraordinary circumstance" as to justify relief from a final judgment where the time to appeal has expired. This is unquestionably the general rule and rests principally upon the important policy that litigation must have an end.
[Hartford Ins. Co. v. Allstate Ins. Co., 68 N.J. 430, 434, 347 A.2d 353 (1975) (citations omitted).]
See also A.B. v. S.E.W., 175 N.J. 588, 593-94, 818 A.2d 1270 (2003) (order denying parental visitation not subject to reconsideration based on new rule of law concerning visitation rights of domestic partners); Zuccarelli v. State Dept. of Envtl. Prot., 326 N.J.Super. 372, 379-81, 741 A.2d 599 (App.Div.1999) (rejecting motion to vacate settlement based on subsequent change of law), certif. denied, 163 N.J. 394, 749 A.2d 368 (2000); Wausau Ins. Co. v. Prudential Prop. and Cas. Ins. Co., 312 N.J.Super. 516, 518-19, 711 A.2d 1354 (App.Div. 1998) (no reconsideration based on clarification of law concerning uninsured motorist coverage); Smid v. New Jersey Highway Auth., 268 N.J.Super. 306, 308-09, 633 A.2d 580 (App.Div.1993) (no reconsideration based on new Supreme Court decision rendered following denial of certification), certif. denied, 135 N.J. 467, 640 A.2d 849 (1994).[4]Compare Lee v. W.S. Steel Warehousing, 205 N.J.Super. 153, 156-58, 500 A.2d 394 (App.Div.1985) (permitting reopening of administrative order in workers' compensation action to recalculate disability award based on intervening Supreme Court decision); Hyjack v. Nolan, 144 N.J.Super. 545, 554-55, 366 A.2d 715 (Law Div.1976) (granting reconsideration of administrative order terminating plaintiffs' disability pension benefits following successful appeal of other similarly situated pensioners, "[b]ecause of the factual relationship involved"), aff'd *730 o.b., 154 N.J.Super. 173, 381 A.2d 57 (App. Div.1977).
We conclude that R. 4:50-1 and the principle of finality preclude reconsideration of this case. We recognize that plaintiff may have reasonably relied on the denial of certification in James and on our opinion in Rios v. Szivos, 354 N.J.Super. 578, 808 A.2d 868 (App.Div.2002), in deciding not to appeal the judgment once the trial judge concluded that there was no serious life impact for purposes of summary judgment. However, the salutary purpose behind the rule of finality cannot be overcome.[5]
We recognize the seeming lack of fairness of our decision to those who unsuccessfully sought to have James and Rios reconsidered, or to challenge their holdings by petition for certification in the Supreme Court.[6] We have considered drawing a line by treating those who relied on James and Rios differently than those whose cases were dismissed before these decisions were rendered. But in the final analysis, we simply find it inappropriate to circumvent the jurisprudence so clearly developed under R. 4:50. Therefore, we hold that cases dismissed beyond the time for reconsideration or appeal when DiProspero and Serrano were filed may not be reopened.
The order under review is affirmed.
NOTES
[1] The motion was dated September 30, 2005.
[2] However, its predecessor, the 1988 New Jersey Automobile Reparation Reform Act, contained "an analogous `verbal threshold' provision," Beltran, supra, 379 N.J.Super. at 172, 877 A.2d 307, which was interpreted in Oswin, supra, 129 N.J. at 317-19, 609 A.2d 415.
[3] As we are dealing with reopening a dismissed case, we need not evaluate the impact of the statute of limitations.
[4] The R. 4:50-1 jurisprudence makes clear, in context, that the "prior judgment or order" referred to in R. 4:50-1(e) must be limited to an order in the particular or related case and not a precedent decision. See Hartford Ins. Co., supra, 68 N.J. at 434-35, 347 A.2d 353.
[5] We nevertheless note that attorneys who did not appeal or seek certification in reliance on James and Rios acted prudently at the time, at least prior to the filing of the appeal to the Supreme Court in DiProspero or the grant of certification in Serrano.
[6] In a number of pending cases, the Supreme Court granted certification and summarily remanded in light of DiProspero. See, e.g., Kratzer v. N.J. Mfrs. Ins. Co., 185 N.J. 385, 886 A.2d 657 (2005) (on motion for reconsideration); orders on certification, supra, 185 N.J. at 23-29; Juarez v. J.A. Salerno, Inc., supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263286/ | 31 Cal.App.4th 221 (1994)
36 Cal. Rptr.2d 848
In re CODY W., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
v.
JILL V., Defendant and Appellant.
Docket No. G015365.
Court of Appeals of California, Fourth District, Division Three.
December 30, 1994.
*223 COUNSEL
John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
Terry C. Andrus, County Counsel, and Rachel M. Bavis, Deputy County Counsel, for Plaintiff and Respondent.
Jane B. Winer, under appointment by the Court of Appeal, for Minor.
*224 OPINION
CROSBY, J.
Cody W., born with heroin in his system, was removed from Jill V.'s custody in December 1991, when he was four months old. Jill, a long-time abuser of drugs, was incarcerated in various facilities across the state for much of the next two years. She was in custody, but present in court, when her parental rights were terminated at the selection and implementation hearing.
Most of the issues presented here continue to be routinely raised in dependency appeals, even though this court has consistently rejected them in a host of unpublished opinions. Parents' arguments, preserved by computer technology, have nonetheless taken on an electric life of their own in brief after brief. We publish this opinion in an effort to short-circuit them once and for all.
I
Jill remarkably asserts the juvenile "court made no finding that [she] was an unfit mother ... [and] basically terminated [her] parental rights based only on findings that [the dependent minor] was adoptable." This contention is belied by the record. Statutory findings of detriment were made at every stage of the proceedings, and they are not challenged.
Nevertheless, relying on Santosky v. Kramer (1982) 455 U.S. 745 [71 L.Ed.2d 599, 102 S.Ct. 1388], Jill argues Welfare and Institutions Code section 366.26 is unconstitutional because it authorizes termination of parental rights without a finding of parental unfitness. Although she concedes Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 [19 Cal. Rptr.2d 698, 851 P.2d 1307] "equated the previous findings made at the various hearings that the return of custody to the parents would be detrimental to the child as a finding of `unfitness,'" she insists Cynthia D. did not "directly" reach the due process claim she makes here. Accordingly, she renews it "to preserve [it] for review by the California Supreme Court and [the] United States Supreme Court."
This court has directly reached and rejected the due process issue Jill raises. (In re Brittany M. (1993) 19 Cal. App.4th 1396, 1402-1403 [24 Cal. Rptr.2d 57].) And, despite the birth mother's protestations to the contrary, so has our Supreme Court. Cynthia D. was a due process case, and there the court noted the various detriment findings demonstrate the requisite "parental inadequacy" and "`fault'" mandated by Santosky. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 254.) Moreover, observed the court, *225 "[b]y the time termination is possible under our dependency statutes the danger to the child from parental unfitness is so well established that there is no longer `reason to believe that positive, nurturing parent-child relationships exist' [citation], and the parens patriae interest of the state favoring preservation rather than severance of natural familial bonds has been extinguished." (Id. at p. 256.)
The persistence and frequency with which appellate attorneys reproduce the argument, however, appears to be based on the misconception that the words "parental unfitness" are somehow talismanic in the field of juvenile dependency law. They are not. True, courts occasionally employ the phrase (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 256; see also In re Brittany M., supra, 19 Cal. App.4th at p. 1403); but 20 years ago the Supreme Court observed, "Thus, prior to the enactment of the Family Law Act in 1969 [former Civil Code, section 4600 et seq.], the decisions had held that an award denying custody to the parent in favor of a nonparent could stand only if the parent had been proven to be unfit. (1a) As we shall show, with the enactment of the Family Law Act, the standard of unfitness was dropped and the Legislature created the new rule that in order to award custody of a child to a nonparent the court was required to render a finding that an award to a parent would be `detrimental to the child'...." (In re B.G. (1974) 11 Cal.3d 679, 694-695 [114 Cal. Rptr. 444, 523 P.2d 244]; In re Carmaleta B. (1978) 21 Cal.3d 482, 489 [146 Cal. Rptr. 623, 579 P.2d 514]; see also former Civ. Code, § 232, subd. (a)(7).) Recently, the Supreme Court reaffirmed that these findings are "the equivalent of a finding of unfitness" with respect to the child involved. (In re Jasmon O. (1994) 8 Cal.4th 398, 423 [33 Cal. Rptr.2d 85, 878 P.2d 1297].)
The detriment language was continued when the dependency laws were revamped in 1989, and with good reason: Despite Jill's protestations to the contrary (see pt. IV post), it conveys an infinitely more precise concept than "unfitness" and ensures the juvenile court's focus is properly centered on the absence or breakdown of a relationship between a particular parent and a particular child.
The word "unfitness," on the other hand, can suggest an individual is not a proper parent under any circumstances.[1] Such a blanket dismissal of a fundamental right, without consideration of the unique circumstances of *226 each parent/child relationship, would ignore the realities of juvenile dependency litigation: cases where a parent's rights to one or more children have been terminated, while other children remain in the family home, are not uncommon. Clearly, these individuals cannot be labeled as unfit to parent at all; nor would such an all-or-nothing approach generally be desirable.[2] Parental rights to one of several children may be constitutionally severed because it would be detrimental to that particular child to maintain them, while it would not be as to the others.[3]
II
(2a) Arguing an incarcerated parent's rights to a dependent child may be terminated pursuant to Welfare and Institutions Code section 366.26 solely because the parent is incarcerated, while an incarcerated parent's rights to a child who either is not a dependent or became a dependent before 1989 may be terminated under Family Code section 7825 only upon proof that the parent has been "convicted of a felony[] [¶] ... of such a nature so as to prove the unfitness of the parent ... to have the future custody and control of the child," Jill contends Welfare and Institutions Code section 366.26 violates equal protection guarantees. The constitutional challenge is purely academic and of no application to this case, however, because Jill's parental rights were not severed based on her mere incarceration.[4] Rather, she lost her parental rights because she failed to "participate regularly in any court-ordered treatment programs[, which constituted] prima facie evidence that return [of the dependent minor] would be detrimental." (Welf. & Inst. Code, §§ 366.22, subd. (a), 366.26, subd. (c).)
III
The next constitutional salvo, rejected in several appellate decisions, is another equal protection challenge to Welfare and Institutions Code section 366.26. This one is based on the assertion that individuals whose parental rights are terminated pursuant to Family Code section 7828 (former Civ. *227 Code, § 232, subd. (a)(7)) are accorded greater protection than those whose parental rights are severed pursuant to section 366.26. (3) But birth parents whose parental rights are terminated under the Welfare and Institutions Code are not similarly situated to birth parents whose children fall under the Family Code provisions for freedom from parental custody and control.[5] There is no equal protection violation. (In re Vanessa W. (1993) 17 Cal. App.4th 800 [21 Cal. Rptr.2d 633]; In re Edward R. (1993) 12 Cal. App.4th 116 [15 Cal. Rptr.2d 308].)
IV
(1b) The birth mother's constitutional attack on the dependency scheme's failure to define "detriment" is not worthy of extended discussion. As discussed in part I, "detriment" has been at the core of the dependency system for at least a generation. Under statutes in effect since 1989, a dependent child who is removed from parental custody pursuant to Welfare and Institutions Code section 361 cannot be returned if the court finds by a preponderance of the evidence "that the return of the child would create a substantial risk of detriment to the physical or emotional well-being of the minor." (Welf. & Inst. Code, § 366.21, subds. (e), (f).) Both subdivisions then explain, "The failure of the parent or guardian to participate regularly in any court-ordered treatment programs shall constitute prima facie evidence that return would be detrimental." There is nothing vague or subjective about that evidentiary standard, although it is not exclusive, of course. In general, detriment is well understood to simply mean weighing all relevant factors expected net harm to a child as the result of his or her return to parental custody.
V
(2b) The final boilerplate issue is also commonly reproduced in appeals from a judgment terminating parental rights. There are several versions of the argument, but the one Jill proffers is typical: "Termination of parental rights is an impingement of a fundamental right which automatically invokes the least detrimental alternative requirement. The trial court erred in failing *228 to adopt an alternative less drastic [than] termination of parental rights." She concludes, "[t]he court should have adopted the less drastic alternative of guardianship or long-term foster care."
The concepts of "least detrimental" and "less drastic" or "less severe" alternatives had their genesis long before the current statutory scheme was enacted and invariably involved individuals whose parental rights were to be "immediately" terminated, i.e., without any rehabilitation or reunification services.[6] (E.g., In re Susan M. (1975) 53 Cal. App.3d 300 [125 Cal. Rptr. 707].)[7] Most of the decisions also were concerned with parents who were mentally ill and allegedly unable to care for their children for that reason. (In re Carmaleta B., supra, 21 Cal.3d at p. 489.)
In the cases involving mental illness, the "less drastic" or "less severe" and "least detrimental" alternative language in appellate opinions referred to the decision to provide or withhold rehabilitation or reunification services before termination of parental rights. In re David B. (1979) 91 Cal. App.3d 184 [154 Cal. Rptr. 63] was one of the earlier decisions of this sort. The birth mother was mentally ill, and the trial court determined she could not benefit from reunification services. Her parental rights were terminated 12 months after the baby was born. The appellate court found no due process deprivation, noting parental rights could constitutionally be terminated under former Civil Code section 232, subdivision (a)(6) based on a parent's mental illness, so long as least two physicians certified the mental illness is not amenable to treatment and "the immediate severance of the parental relationship [was] the least detrimental alternative available to protect the welfare of the child. *229 In this regard, the judge must carefully explore all reasonable alternatives to severing the parent relationship such as child protective services and temporary foster home care pending efforts to rehabilitate the parent. These alternatives should be employed unless they would result in serious psychological harm to the child. However, if the court determines that available medical and social resources are inadequate to rehabilitate the parent to a level where he or she will be able to assume responsibility for the child, then it becomes inimical to the child's welfare to delay efforts to seek permanent adoptive placement." (91 Cal. App.3d at p. 196.)
The appellate panel in David B. reviewed the trial court's decision not to order reunification services and concluded the judge "considered the less drastic measures [rehabilitation and reunification] and rejected them as being inadequate. From this a finding may be implied that the severance of [the birth mother's] parental rights is the least detrimental alternative available to protect [the minor's] welfare." (91 Cal. App.3d at p. 199; see also In re R.S. (1985) 167 Cal. App.3d 946 [213 Cal. Rptr. 690] [an implied finding that immediate termination of parental rights was the least detrimental alternative could not be supported where the trial court failed to consider offering rehabilitation services to a mentally ill mother who privately placed a child with prospective adoptive parents, but sought to regain custody]; In re Heidi T. (1978) 87 Cal. App.3d 864, 874 [151 Cal. Rptr. 263] [affirming the termination of a birth mother's rights based on her mental illness under former Civ. Code, § 232, subd. (a)(6) even though no referral was ever made to the county's child protective services].)
In re Angelia P. (1981) 28 Cal.3d 908 13 [171 Cal. Rptr. 637, 623 P.2d 198] became a turning point intentional or not in the least detrimental alternative analysis. Although neither parent was mentally ill,[8] the court discussed the concept of least detrimental alternative. The analysis primarily focused on the competing interests that may override a parent's fundamental right to custody of his or her child. In that regard the court also cited a 1973 text (Goldstein et al., Beyond the Best Interests of the Child), noting the authors recommended "`"the least detrimental available alternative for safeguarding the child's growth and development"' as a standard on the ground that the `best interest test' too often subordinates the child's interests to those of various adult claimants." (28 Cal.3d at p. 917.) But, as in the earlier Court of Appeal decisions, the Supreme Court made it clear that "less severe alternatives" meant no more than giving birth parents the opportunity to rehabilitate themselves and reunite with their families via court-ordered services before ordering the termination of their rights.
*230 The parents in Angelia contended, "the trial court failed to consider alternate care plans for Angelia ... the possibility of maintaining the status quo until" the birth father was released from prison and could receive counseling. The Supreme Court disagreed, citing David B. and Susan M.: "[T]he trial court should consider the availability of less severe alternatives designed to keep the family intact.' [Citation.] However, when such services have not been offered, `the decision as to whether the services should be ordered and the [termination of parental rights] delayed until the results are evaluated lies within the sound discretion of the superior court.'" (In re Angelia P., supra, 28 Cal.3d at p. 923, italics added.) But the court concluded the previous four years of foster care constituted the less severe alternative aimed at preserving the family and left the trial court "free to decide that termination was appropriate." (Ibid.)
The "least detrimental alternative" concept appears to have been subsumed in Welfare and Institutions Code section 361.5 (see fn. 5), which codified in considerable detail requirements for child welfare services. To the extent the concept survived the enactment of the current statutory scheme, it means no more today than it meant 19 years ago: Should parental rights be terminated immediately without the provision of child welfare services designed to facilitate reunification of the family?[9] (4) It has never meant, as Jill suggests, that the juvenile court, at the selection and implementation hearing, must first consider long-term foster care or guardianship before adoption.
That notion, besides being unprecedented, would turn the current dependency scheme upside down. Once efforts at reunification have been formally terminated, Welfare and Institutions Code section 366.26 clearly spells out the judicial options and, "[a]s a matter of public policy, the juvenile court gives first priority to adoption as the most desirable permanent plan." (In re Edward R., supra, 12 Cal. App.4th at p. 122, italics added.) Once the court has "determine[d] by clear and convincing evidence that it is likely that the minor will be adopted" and concluded that none of the four statutory circumstances would create a detriment to the child (Welf. & Inst. Code, § 366.26, subd. (c)(1)), "`"the decision to terminate parental rights [at the section 366.26 hearing] will be relatively automatic."'" (In re Matthew C. (1993) 6 Cal.4th 386, 392 [24 Cal. Rptr.2d 765, 862 P.2d 765], italics added.)
*231 Legal guardianship and long-term foster care are not considered by the court until adoption and termination of parental rights have been rejected: "If the court finds that adoption of the minor or termination of parental rights is not in the interests of the minor, or that one of the conditions in subparagraph (A), (B), (C), or (D) of paragraph (1) or in paragraph (2) applies, the court shall [then] either order that the present caretakers or other appropriate persons shall become legal guardians of the minor or order that the minor remain in long-term foster care. Legal guardianship shall be considered before long-term foster care, if it is in the best interests of the child and if a suitable guardian can be found...." (Welf. & Inst. Code, § 366.26, subd. (c)(4).)
(2c) Here, reunification services were terminated and the juvenile court found that Cody probably would be adopted. No more was required: "[I]n order to terminate parental rights, the court need only make two findings: (1) that there is clear and convincing evidence that the minor will be adopted; and (2) that there has been a previous determination that reunification services shall be terminated." (Cynthia D. v. Superior Court, supra, 5 Cal.4th 242, 249-250.)
VI
Jill launches inconsistent attacks on the court's determination that reasonable reunification services were provided. On one hand she complains each reunification plan was inadequate because it was "generic [and] ... did not address [her] incarcerations." On the other, she faults the Orange County Social Services Agency (SSA) for failing to facilitate monthly visits during her various incarcerations, as required by the express terms of the plans.[10]
But this birth mother waived any right to challenge the plans themselves: At each stage she stipulated to their terms. She also agreed at the six- and twelve-month reviews to the reasonableness of the reunification services provided. The only issue properly before this court, then, is the reasonableness of the SSA's efforts to implement the last plan between February 22, 1993, the date of the 12-month review, and July 29, 1993, when reunification services were terminated.
Candidly, the SSA did virtually nothing to foster reunification during those six months. Under the circumstances, however, that was reasonable. *232 The birth mother was released from custody in January 1993 and visited Cody on February 4. She was arrested on February 16 and released from the Orange County jail in March. She did not advise the SSA of her whereabouts upon this release, however. It was not until June that the SSA's efforts to find her were successful; Jill was located in custody in Chowchilla, more than 200 miles from Orange County. There she remained until one day before the eighteen-month review on July 29, 1993. The plan in effect during this period required her to keep the social worker "apprised of her current whereabouts at all times." It also authorized weekly monitored visits, "provided [the birth mother] is not under the influence of drugs or alcohol, and visitation will be increased provided she is complying with the [c]ourt-ordered service plan. While incarcerated in a county facility, the minor's mother to be granted monthly visits." (Italics added.) As the birth mother failed to keep the SSA apprised of her whereabouts and was incarcerated in Orange County for only several weeks during the final six months of reunification, the SSA was not obliged to do much.
Moreover, Jill's failure to establish a maternal bond with her son was not the result of the SSA's failure to transport the infant to various custodial institutions for visits. It was the result of her inability to remain drug free and out of custody for any appreciable length of time. Jill's lack of responsibility in this regard made the juvenile court's finding under Welfare and Institutions Code section 366.26, subdivision (c)(1)(A) essentially superfluous, as the county argues. Where parents "have maintained regular visitation and contact with the minor," the court may conclude the dependent child would benefit from continuing that contact. (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A).) But where, as here, there has been no regular contact, this subdivision does not even come into play.
VII
Having emptied one quiver against the SSA, the birth mother takes aim at her trial counsel for providing ineffective assistance, e.g., stipulating to irrelevant service plans and not insisting on visitation while she was incarcerated. This argument, as the previous ones we have rejected, ignores the obvious: This birth mother's predicament was largely of her own making. Cody is the fourth child removed from her custody, and none has been returned. For the first 28 months of this minor's life, his birth mother was unable or unwilling to give up drugs and crime. She was unable or unwilling to establish a home or a legal source of income. She was unable or unwilling to demonstrate a commitment to learning minimal parenting skills. She did *233 not receive ineffective assistance of counsel; sadly, her son had an ineffective mother.[11]
Judgment affirmed.
Wallin, Acting P.J., and Sonenshine, J., concurred.
Appellant's petition for review by the Supreme Court was denied March 16, 1995.
NOTES
[1] We have found only one set of circumstances where the Legislature has appeared willing to go so far. Per Family Code section 7825 (former Civ. Code, § 232, subd. (a)(4)) and Welfare and Institutions Code section 366.21, subdivision (e), a court may terminate the rights of a parent "convicted of a felony [where] ... [¶] [t]he facts of the crime ... are of such a nature so as to prove the unfitness of the parent ... to have the future custody and control of the child." (See pt. II, post.)
[2] We do not mean to imply that this court encourages the separation of siblings, far from it.
[3] Jill's corollary argument, supported only with a citation to Santosky v. Kramer, supra, 455 U.S. 745, is that the statutory scheme is somehow constitutionally flawed because the detriment finding is not contemporaneous with the order severing parental rights. But in Cynthia D. v. Superior Court, supra, 5 Cal.4th 242, the Supreme Court explained the selection and implementation hearing is not the place to litigate "parental inadequacy." (Id. at p. 254.) Where the termination of parental rights is contemplated, the selection and implementation hearing gives the social services agency the opportunity to establish the likelihood the minor will be adopted and to determine whether "termination would be detrimental to the minor due to one of [several statutory] circumstances." (Welf. & Inst. Code, § 366.26, subd. (c)(1).)
[4] Nor could they be under the dependency statutes. (Welf. & Inst. Code, §§ 366.21, subd. (e), 366.26.)
[5] Family Code section 7808 decrees that "[t]his part [of the statutory scheme] does not apply to a minor adjudged a dependent child of the juvenile court pursuant to subdivision (c) of [s]ection 360 of the Welfare and Institutions Code on and after January 1, 1989, during the period in which the minor is a dependent child of the court. For those minors, the exclusive means for the termination of parental rights are provided in ... [¶] (a) Section 366.26 of the Welfare and Institutions Code. [¶] (b) Sections 8604 to 8606, inclusive, and 8700 of this code. [¶] (c) Chapter 5 (commencing with Section 7660) of Part 3 of this division of this code." Minors who are not dependents of the juvenile court or whose dependency was established before 1989 fall within the provisions of section 7800 et seq. of the Family Code.
[6] Tracing repealed and superseded statutes can be a tricky business. But the following seems fairly clear: Until 1982, when subdivision (e) was added to Welfare and Institutions Code section 361, the Legislature had little to say concerning reunification services. Subdivision (e) did not provide significant guidance. It read simply, "The juvenile court shall order the probation officer to provide child welfare services to the minor and the minor's parents or guardians for the purpose of facilitating reunification of the family within a maximum time period not to exceed 12 months. Services may be extended up to an additional six months if it can be shown that the objectives of the service plan can be achieved within the extended time period. Physical custody of the minor by the parents or guardians during the 18-month period shall not serve to interrupt the running of the period." In 1986, a new section 361.5 was added; and for the first time juvenile courts received a detailed outline of the circumstances that would justify the denial of reunification services.
[7] In Susan M. the Court of Appeal "subscribe[d] to the thesis that all avenues should be explored by the courts, the state and state agencies before a child is declared free from the custody and control of its parents and placed for adoption.... Accordingly, we embrace the viewpoint that before initiating proceedings to declare a minor free from the custody of its parents under section 232 of the Civil Code, a county welfare department must consider child protective services as a possible solution to the problems at hand and must offer such services to qualified parents if deemed appropriate under the circumstances." (In re Susan M., supra, 53 Cal. App.3d at pp. 310-311.)
[8] The birth father was in prison for felony abuse of Angelia. The birth mother, who had custody of a younger child born after her husband's incarceration, could not afford to care for Angelia, too, and did not want the dependent minor returned to her care at that time.
[9] Also, the court's mandate has always been to ensure that its decision is "the least detrimental alternative for the children." (In re Carmaleta B., supra, 21 Cal.3d at p. 489, italics added.) Termination of parental rights is rarely the least detrimental alternative for a parent, but that is not the test. (In re Jasmon O., supra, 8 Cal.4th at p. 426.)
[10] For all referral orders entered after January 1, 1995, a challenge to the reunification plan will not be preserved for an appeal after the judgment terminating parental rights (see In re Matthew C., supra, 6 Cal.3d 386), unless a timely petition for extraordinary relief was filed and either "summarily denied or otherwise not decided on the merits." (Cal. Rules of Court, rules 39.1A(b)(2), 39.1B(d)(2), 39.2(b)(2), 1436.5(c)(2).)
[11] As we have found no error, there is no need to reach the issue of cumulative impact. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263358/ | 31 Cal.App.4th 506 (1995)
37 Cal. Rptr.2d 181
FRANK RINAURO et al., Plaintiffs and Appellants,
v.
HONDA MOTOR CO., LTD., et al., Defendants and Respondents.
Docket No. B079773.
Court of Appeals of California, Second District, Division Seven.
January 11, 1995.
*508 COUNSEL
Klein, Wegis, DeNatale, Goldner & Muir, Ralph B. Wegis and Denise Martin for Plaintiffs and Appellants.
Bowman and Brooke, Carol S. Ravesies and Alexander G. Calfo for Defendants and Respondents
OPINION
WOODS (Fred), J.
Applying Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744 [1 Cal. Rptr.2d 556, 819 P.2d 14], the trial court dismissed the instant action on forum non conveniens grounds. We find no abuse of discretion and affirm the judgment of dismissal.
BACKGROUND
Appellants (Frank Rinauro and his wife Jean) filed a tort complaint (negligence, strict liability, failure to warn, and loss of consortium) in a California court against two Japanese corporations (Honda Motor Co., Ltd. and Honda R & D Co., Ltd.) and two of their wholly owned subsidiaries, California corporations (American Honda Motor Co., Inc. and Honda R & D North America, Inc.). Defendants-respondents answered and thereafter *509 moved to dismiss on the ground of forum non conveniens. (Code Civ. Proc., § 410.30.)[1]
After considering the moving papers (including seven prospective witnesses' declarations) and oral argument the trial court granted the motion.
The lawsuit is based on an allegedly defective Honda Fourtrax 250, a four-wheel all-terrain vehicle, which tipped over while appellant (Frank Rinauro) was riding it and injured him.
Appellants reside in Nevada, bought the vehicle (used) in Nevada, and the accident occurred in Nevada.
DISCUSSION
(1) "Forum non conveniens is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere." (Stangvik v. Shiley Inc., supra, 54 Cal.3d 744, 751.)
(2a) "In determining whether to grant a motion based on forum non conveniens, a court must first determine whether the alternate forum is a `suitable' place for trial." (54 Cal.3d at p. 751.) (3a) Substantial evidence supports the trial court's implied finding that Nevada was a "suitable" alternate forum. As appellants concede, on August 17, 1993, when the trial court granted the dismissal motion, appellants had over two months in which to file their action in Nevada, the state where they resided, where the accident occurred, and where many if not most of the witnesses resided.
(2b) "If it is, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California. The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in *510 which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation. [Citations.]
(4) "On a motion for forum non conveniens, the defendant, as the moving party, bears the burden of proof. The granting or denial of such a motion is within the trial court's discretion, and substantial deference is accorded its determination in this regard." (54 Cal.3d at p. 751.)
(2c) No one factor should determine the outcome of a forum non conveniens motion. (54 Cal.3d at p. 753.) The trial court should carefully balance all relevant factors "and it is for the trial court to decide which party will be more inconvenienced." (Id. at p. 763.)
(3b) We find the following factors constitute substantial evidence and support the trial court's determination:
1. Appellants were residents of Nevada.
2. The vehicle was purchased in Nevada from a Nevada resident.
3. The accident occurred in Nevada.
4. Many witnesses reside in Nevada and declare they would be "extremely inconvenienced" by a California trial.
5. Other witnesses reside in Idaho and declare they would be "extremely inconvenienced" by a California trial.
6. The California corporation defendants did not manufacture or design the subject vehicle.
7. The lawsuit would be a burden on California courts, taxpayers, and jurors.[2]
Under Stangvik v. Shiley Inc., supra, 54 Cal.3d 744, the trial court properly exercised its discretion in ruling that Nevada, not California, was the more convenient forum.
*511 DISPOSITION
Costs on appeal are awarded to respondents. The judgment is affirmed.
Lillie, P.J., and Johnson, J., concurred.
NOTES
[1] The section reads: "(a) When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.
"(b) The provisions of Section 418.10 do not apply to a motion to stay or dismiss the action by a defendant who has made a general appearance."
[2] Respondents estimate a four-week trial and state a similar lawsuit against them tried by appellants' counsel lasted two months. Appellants' counsel states it took "only" six weeks. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334786/ | 92 Ga. App. 544 (1955)
88 S.E.2d 719
ANDERTEN
v.
THE STATE.
35745.
Court of Appeals of Georgia.
Decided July 11, 1955.
Rehearing Denied July 23, 1955.
Noah V. Shelley, Wm. R. Harrell, for plaintiff in error.
H. T. O'Neal, Jr., Solicitor, Wm. K. Buffington, Assistant Solicitor, contra.
*547 CARLISLE, J.
1. While by the provisions of Code § 70-305 as amended by the act of 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 446; Code, Ann. Supp., § 70-305), the stenographic report of the trial of the case may be used in place of a brief of evidence, the immaterial questions and answers and parts thereof must be stricken; and, where, upon appeal to this court, it appears from the record that the purported brief of evidence consists of the entire stenographic report of the trial (filling some 172 pages) and almost every page includes either motions to rule out evidence, objections to the introduction of evidence, rulings of the court in passing upon the various objections and motions of counsel, colloquies between counsel and between counsel and the court, arguments of counsel upon objections to the admission of evidence, and various other immaterial and irrelevant matter, it is apparent upon the face of the record that there has been no bona fide attempt whatsoever to comply with the requirements of Code § 70-305, as amended, and this court will not, therefore, pass upon any assignment of error in the determination of which reference must be had to the purported brief of evidence. Brown v. Clarke, 211 Ga. 61 (84 S. E. 2d 14); Williamson v. Yakupian, 211 Ga. 61 (84 S. E. 2d 15); and citations. As the general grounds and special grounds 2, 3, 4, 5, 6, 7, 8, and 9 of the motion for a new trial in the present case contain assignments of error which would require reference to the purported brief of evidence for determination, those grounds will not be considered.
*545 2. In the absence of a showing of manifest abuse of discretion the appellate courts of this State will not interfere with a judgment of a trial court refusing or granting a motion for a continuance of a case (Crow v. State, 86 Ga. App. 11, 70 S. E. 2d 601, and citations), and it is not an abuse of discretion to refuse to grant a continuance in a case, upon the ground that the defendant's counsel have had only five days within which to prepare his defense and secure certain evidence from the defendant's bank in the State of Texas, where, to the ground of the motion for new trial in which complaint is made of the refusal of the trial court to grant the continuance, the trial court appends the note that the defendant had had approximately eight months between the time of his arrest and the time of his trial within which to secure any and all evidence necessary to his defense and that he had been out on bond until such time as his bond had been forfeited upon the call of the case and had been represented by counsel of his own employment and counsel appointed by the court whom he discharged in order, as he declared in open court, to represent himself. There is no merit in special ground 1 of the motion for a new trial.
3. A motion in arrest of judgment in a criminal case will reach only such defects as are apparent on the face of the record; and the record on such a motion is composed of and restricted to the accusation, plea, verdict, and judgment and does not include the brief of evidence. McClendon v. State, 81 Ga. App. 218 (58 S. E. 2d 462), and citations. Each of the grounds of the motion in arrest of judgment in the present case would require a consideration of the brief of evidence, and the trial court did not err in denying such motion.
4. It is not apparent from the face of the accusation that the City Court of Macon was without jurisdiction to try certain of the offenses charged in the accusation, which the defendant, in his plea to the jurisdiction contends were committed in the State of Texas if committed at all. The trial court in overruling the plea certified that no evidence was offered in support of the plea, and to determine otherwise would require reference to the purported brief of evidence; and since under the ruling in division 1 this court will not consider any assignment of error requiring reference to the purported brief of evidence, the exception to the overruling of the plea to the jurisdiction is not considered.
5. Consequent upon the rulings in the foregoing divisions of this opinion, each of the rulings to which exception is taken in the present bill of exceptions must be affirmed.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334711/ | 146 Ga. App. 837 (1978)
247 S.E.2d 523
MADISON, LTD.
v.
PRICE et al.
55170.
Court of Appeals of Georgia.
Argued January 5, 1978.
Decided June 29, 1978.
Rehearing Denied July 28, 1978.
*845 Raiford, McKeithen & Dixon, Tyler Dixon, for appellant.
Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Thomas C. Harney, George B. Haley, Claude E. Hambrick, Alston, Miller & Gaines, Ben F. Johnson, III, Peter Q. Bassett, Gershon, Ruden, Pindar & Olim, Max Olim, W. Paul Kesmodel, Jr., for appellees.
BANKE, Judge.
The appellant, Madison, Ltd., sued the appellees to recover damages for their refusal to comply with a security deed property release provision. The appellees are Citizens & Southern Bank of East Point, Bank of Duluth, Maxie Price, Gene Latham, and Dan Kenerly, individually and d/b/a Kenerly Realty Company. All the appellees filed motions to dismiss, except Maxie Price who moved for summary judgment. The trial judge granted these motions and then stated that because of the identity of issues involved with regard to the defendants, he was granting summary judgment to all defendants. *838 The appellant then brought this appeal.
Madison, Ltd., purchased the real estate in question from Oliver R. Dobbs, III (not a party to this action) on November 8, 1973. Mr. Dobbs had previously purchased the property from Maxie Price. The property was subject to four security deeds, one of which was granted to Mrs. Maxie Price and another of which was granted to Maxie Price, Dan Kenerly, and Professional Real Estate Services Company. After the closing, Price assigned his interest in the second security deed to the Bank of Duluth, and Kenerly assigned his interest to Gene Latham who later assigned to the C & S Bank.
Madison, Ltd., originally sought the release of three tracts of land (totaling 200 acres), but later amended to remove its claim for damages on one of the tracts since it was not contiguous with the other two tracts as required by the security deed. Both C & S Bank and the Bank of Duluth refused to execute any of the desired releases. Madison, Ltd., claims that under the security deed it became entitled to the release of 200 acres upon payment of the down payment and that it lost an opportunity to sell the property as a direct result of the appellees' refusal to execute the releases. Professional Real Estate Services Company executed the desired releases and is not named as a defendant in this action.
Prior to its filing of this suit for damages, Madison, Ltd. filed in the same court a suit seeking specific performance by the same parties. That action was reviewed by the Supreme Court in Madison, Ltd. v. Price, 237 Ga. 904 (230 SE2d 297) (1976). The Supreme Court affirmed summary judgments for the Bank of Duluth and C & S Bank since they had reassigned their interests in the security deed by the time the suit was filed. The Supreme Court also found no evidence of bad faith or stubborn litigiousness by the banks. Additionally, the Supreme court ruled that Mrs. Maxie Price and the Bank of Duluth were entitled to summary judgment regarding the first security deed since Madison, Ltd., had not made the payments necessary for release.
Because of the Supreme Court's decision in the first case, C & S Bank and Bank of Duluth filed supplemental answers in this suit involving the second security deed *839 raising the defense of res judicata. The trial judge found that the plea of res judicata was valid and granted the banks' motions to dismiss. The judge granted summary judgment to appellee Price because "... the release provision in question is vague, indefinite and therefore incapable of enforcement" and because "... even the vague restrictions set out in the release provision were not complied with by the plaintiff (Madison, Ltd.)." The court then stated that it was treating the dismissals in favor of appellees Kenerly, Latham, C & S Bank, and Bank of Duluth as being grants of summary judgment. Held:
1. A plaintiff is not permitted to split his single cause of action to seek in successive litigation the enforcement of first one remedy (e.g., specific performance) and then a second (e.g., damages).
As this court explained in McDonald Mtg. &c. Co. v. Feingold, 168 Ga. 763, 764 (149 S.E. 132) (1929): "The facts alleged in the first and second petitions are the same; the parties are the same... While there was no specific prayer for damages in the first petition, the plaintiff relied upon the same facts as are set out in the present petition for relief. This additional prayer for damages might have been appropriately included in the other case... [N]or is a second suit in such case maintainable merely because the plaintiff prays therein not only for the relief originally sought but for other and further relief, the right to which, however, depends upon the identical allegations set forth in the first petition. Fain v. Hughes, 108 Ga. 537 (33 S.E. 1012) ..." See also Perry v. McLendon, 62 Ga. 598 (1879); Smith v. Smith, 125 Ga. 83 (54 S.E. 73) (1906); Crawford v. Baker, 86 Ga. App. 855 (72 SE2d 790) (1952); Rothstein v. First Nat. Bank, 141 Ga. App. 526 (233 SE2d 802) (1977). See generally Summer-Minter & Assoc. v. Giordano, 231 Ga. 601 (203 SE2d 173) (1974).
The judgment in the first case[1] that Madison, Ltd., could not obtain specific performance from C & S Bank and Bank of Duluth because they lacked a possessory interest in the property was a decision on the merits (see *840 Code Ann. § 110-503); and even though the question of damages for wrongful refusal to release the property was not litigated or decided, it could have been put in issue (see Code Ann. § 110-501). See Coile v. Finance Co. of Am., 221 Ga. 863 (148 SE2d 328) (1966); Miami Properties, Inc. v. Fitts, 226 Ga. 300 (175 SE2d 22) (1970); Smith v. Bank of Acworth, 111 Ga. App. 112 (1) (140 SE2d 888) (1965).
We find no merit in Madison, Ltd.'s contention that it is relieved from the bar of res judicata by the ruling of the trial judge in the specific performance case denying his supplemental claim for damages, the effect of which Madison claims was to sever the issues for trial. The trial judge there ruled: "It is ordered that the plaintiff's second amendment to complaint is disallowed, the court finding the complaint on its face purports to be a supplemental pleading, `setting forth transactions or occurrences or events which have happened since the date of the pleadings sought to be supplemented.' Under Ga. Code [Ann.] § 81A-115 and the record conclusively demonstrating that the plaintiff failed to obtain leave of court to permit service on such supplemental pleading as required by § 81A-115, the court denies leave to file such supplemental pleading, finding that the supplemental claims sought to be asserted by the amended complaint are an unnecessary duplication of claims already pending before this court."
It is unclear whether the trial judge's reference to "claims already pending" was a reference to this suit which was already filed in the same court (although assigned to a different judge) or whether it was a reference to the fact that Madison, Ltd., had pled facts sufficient to support a damage claim in its initial complaint for specific performance but had neglected to include a prayer for damages in the ad damnum clause. The trial judge in this action ruled that "If the language in the order referred to allegations which were already in the complaint, the plaintiff should have properly amended his prayer for damages in that case. If the reference was to this case the plaintiff had an option of dismissing this action or dismissing [the specific performance case]." The trial judge also noted that Madison, Ltd., had not appealed the order. There also is no indication in the record that *841 Madison, Ltd., asked for a clarification of the order.
All parties agree that Madison's attempt to supplement its first complaint was procedurally invalid. The court agrees with the trial judge in this case that the ambiguous language in the first judge's ruling did not relieve Madison, Ltd.'s attorney from his responsibility to get a clarification of the order (by appeal or otherwise) and/or to add the prayer by amendment (which could have been done as a matter of right under Code Ann. § 81A-115 (a)). He was not authorized to rely on his personal interpretation that the order was an implied order of severance. Accordingly, Madison, Ltd., is now barred by res judicata from seeking a recovery in damages against C & S Bank and Bank of Duluth.
2. Madison, Ltd.'s remaining enumerations of error contest the correctness of the trial judge's grant of summary judgment to Maxie Price, Gene Latham, and Dan Kenerly.
The pertinent portions of the release provision in question here are as follows:
"1. The grantee herein shall release from the real property described herein, parcels of land, as selected by Grantee herein upon payment by said grantee to said grantor of ... $1,100.00 ... per acre, exclusive of paragraphs 7 and 8 below stated...
"4. Each release of property must be contigious (sic.) and run the full depth of the property from the roads (or road rights-of-way) through the property, unless grantor herein submits a plan of development which will provide a system of public roads and provide access to the public roads, or roads from the unreleased portions of said property. In no event, shall property be released as to deprive unreleased portions, of the within described property, of access to the public road, or roads...
"8. Grantee further agrees that in consideration of the downpayment on the described property to release by quitclaim deed any two hundred (200) acres from any of the described tracts, as selected by grantor herein, without payment for such releases, as set forth in Paragraph 4 above."
(a) The court below ruled that Madison, Ltd., was not entitled to the release of the 200 acres because the *842 release provision quoted above was unenforceable for vagueness in that no specific starting point was named. As the Supreme Court recognized in Chamblee v. Guy, 218 Ga. 56 (2) (a) (126 SE2d 205) (1962), the word "any" may be used to mean "all" or "one out of several." See also Lee v. Davis' Estate, 226 Md. 416 (174 A2d 79) (1961); City of Austin v. Salyer, 441 S.W.2d 862 (4) (1969). Here the intention of the parties, as manifested in paragraph 8, above, was to permit the purchaser, Madison, Ltd., upon payment of the downpayment to select for release any 200 acres out of the total 690 acres so long as the requested acreage was contiguous, ran the entire depth of the property, and did not leave any acreage without access to a public road. See generally Holcomb v. Word, 239 Ga. 847 (238 SE2d 915) (1977) (construing an ambiguous release provision). The naming of a precise beginning point for the property release would, therefore, have contravened the parties' clear intent to allow Madison, Ltd., unlimited flexibility in deciding where along the two public roads traversing the property acreage would first be released. The provision approved in Cochran v. Teasley, 239 Ga. 289 (1) (236 SE2d 635) (1977), which named the street bounding the property and provided for alternative starting points along that street, represents a preferable degree of specificity in a release provision; nevertheless, we do not find that the present provision is so vague as to be rendered unenforceable.
Furthermore, we do not find that this case is governed by the rulings of the Supreme Court in Hamil v. Gormley, 188 Ga. 585 (4 SE2d 471) (1939); Martin v. Oakhurst Development Corp., 197 Ga. 288 (29 SE2d 179) (1944); Martin v. Sunset Hill Memorial Gardens, Inc., 212 Ga. 159 (91 SE2d 44) (1956), because of the differences in the factual situations presented. Those cases involved suits where neither specific performance nor damages were recoverable since the exact location of the property involved could not be determined because the contracts failed to name a specific starting point in describing the property. Here, there was no question as to the location of the property involved since the total acreage secured was sufficiently described in the deed, and it was only in the release provision that no exact starting point was stated. *843 Williams v. Manchester Bldg. Supply Co., 213 Ga. 99 (97 SE2d 129) (1957), is not controlling in this suit for damages because the court there, while denying the purchaser's petition for specific performance, stated that it was unable to rule on the purchaser's entitlement to damages since the demand for damages had not been properly made.
(b) The trial judge also ruled that the appellees Price, Latham, and Kenerly were entitled to summary judgment since in its request for the release of 200 acres, Madison, Ltd., had included a 50-acre tract which was not contiguous with the other two tracts of approximately 100 and 50 acres, respectively. The facts indicate that it was contemplated that the total request for 200 acres might be composed of several smaller parcels inasmuch as some of the purchased tracts contained less than 200 acres. Price argues that the Supreme Court's recent decision regarding the severability of contracts in Dozier v. Shirley, 240 Ga. 17 (239 SE2d 343) (1977), requires this court to rule that the admitted nonconformity of the third tract relieved him of any obligation to release the other two tracts. Were this a suit for specific performance, Price's argument might prove persuasive. However, as stated by the Supreme Court in Dozier, "While this [directed verdict] was correct as to the prayer for equitable relief, there was evidence of damages caused appellant by appellee's breach of the release provision. Appellant had a right to a jury verdict on the issue of damages. [Cits.]" Dozier v. Shirley, supra, p. 19. The trial judge, therefore, erred in basing his grant of summary judgment for these appellees on this ground.
(c) In reviewing this case on appeal, we have reviewed Price's defense that under the terms of their security deed he was not required to release the property because Madison, Ltd., was in default on a prior security deed to Buddy J. Lancaster. He relies on this court's decision in Turpin v. N. Am. Acceptance Corp., 119 Ga. App. 212 (166 SE2d 588) (1969).
Lancaster had granted Madison, Ltd., a 2-month extension to meet an interest payment. However, this extension was not supported by payment of consideration by Madison, Ltd., and therefore under the Turpin *844 decision, Lancaster was not bound by his agreement. Price argues that since Lancaster was not bound he was authorized to consider Madison, Ltd., in default. We decline to extend the Turpin decision to cover the situation posed in this case, particularly in recognition of the fact that the property releases sought by Madison, Ltd., were already due by virtue of its down payment at closing.
Alternatively, Price has argued that since he notified Madison, Ltd., of his election to declare the security deed in default and to accelerate the loan before Lancaster granted the time extention and before Madison, Ltd., requested him to release the 200 acres, he was under no legal obligation to release the property. See Cochran v. Teasley, 239 Ga. 289 (2), supra. The record shows that Madison, Ltd., initially requested the Bank of Duluth and C & S Bank to release the property in May 1975. The installment payment on the Lancaster security deed became due on June 8, 1975. On June 24 Price sent his notice of default and acceleration. On July 2 the Bank of Duluth reassigned its interest in the security deed contested here to Price, and on July 3 Madison, Ltd., demanded release of the property from Price.
Thus, the facts show that Madison, Ltd., began seeking release of the 200 acres prior to any default on the Lancaster security deed and that at the time Price sent his notice of default and acceleration, his interest in the security deed was collaterally assigned to the Bank of Duluth. Under these circumstances, the court finds that Madison, Ltd.'s delayed request for release from Price did not result in a loss of his right of release. See generally Jordan v. Flynt, 240 Ga. 359 (3b), (4) (240 SE2d 858) (1977).
In summary, the summary judgments for C & S Bank and Bank of Duluth are affirmed on the basis of res judicata. The summary judgments for Price, Latham, and Kenerly are reversed.
Judgment affirmed in part and reversed in part. Deen, P. J., and Smith, J., concur.
NOTES
[1] Madison, Ltd. v. Price, 237 Ga. 904 (230 SE2d 297) (1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334706/ | 247 S.E.2d 888 (1978)
295 N.C. 608
STATE of North Carolina
v.
Barry Dale HOLCOMB.
No. 9.
Supreme Court of North Carolina.
October 17, 1978.
*890 Rufus L. Edmisten, Atty. Gen. by Roy A. Giles, Jr., Asst. Atty. Gen., Raleigh, for the State.
N. Lawrence Hudspeth, III, and Larry G. Reavis, Winston-Salem, for defendant-appellant.
BRANCH, Justice.
Defendant by his first assignment of error contends that the trial judge erred by denying his motion to suppress evidence concerning the location of the murder weapon and by ruling that the weapon was admissible into evidence.
Defendant argues that the dialogue between defendant and his uncles at the sheriff's office which resulted in his assistance in finding the murder weapon constituted a "custodial interrogation" which was conducted without the warnings or procedural safeguards required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
In State v. Wright, 274 N.C. 84, 161 S.E.2d 581, 586 (1968), cert. denied, 396 U.S. 934, 90 S. Ct. 275, 24 L. Ed. 2d 232 (1969), we stated:
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, lays down the governing principle that as a constitutional prerequisite to the admissibility of statements obtained from an accused during custodial police interrogation, the suspect must be advised in unequivocal terms (1) that he has a right to remain silent; (2) that anything he says can and will be used against him in court; (3) that he has a right to consult with a lawyer and to have a lawyer with him during interrogation; and (4) that if he is an indigent a lawyer will be appointed to represent him. . . .
These "Miranda warnings" are only required when an accused is about to be subjected to "custodial interrogation." State v. Fletcher and State v. St. Arnold, 279 N.C. 85, 181 S.E.2d 405 (1971). "Custodial interrogation" is a questioning initiated by law enforcement officers after a person *891 has been taken into custody or otherwise deprived of his freedom. Miranda v. Arizona, supra; State v. Thomas, 284 N.C. 212, 200 S.E.2d 3 (1973).
This record discloses that defendant's uncles Bobby Lee Smith and James Smith were at the Charles Holcomb homeplace when they heard that defendant had been taken into custody. They immediately went to the sheriff's office in Yadkin County for the purpose of "consoling" defendant. At the sheriff's office, Bobby Lee asked Deputy Hicks if he had the weapon with him; and Hicks replied, "No, and he didn't tell me where it was." The uncles obtained permission from the police officers to talk with defendant in hopes of locating the apparently valuable rifle which belonged to deceased. After some conversation between them, defendant agreed to carry them to the place where he had left the rifle.
In our opinion, the discovery of the murder weapon did not result from "custodial interrogation." It is true that defendant was in police custody, but there was no questioning initiated by the police concerning the murder weapon. Rather the conversation between defendant and his kinsmen grew out of a natural concern by defendant's uncles for the plight of defendant and occurred only with the permission of the police. Neither do we find merit or support in this record for defendant's contention that his uncles were acting as agents of the police when they talked with him concerning the murder weapon. Even had the evidence of the discovery of the weapon and the admission of the weapon into evidence been erroneous, we do not believe that the admission of this evidence would have contributed to defendant's conviction, particularly in light of the overwhelming evidence elicited from defendant's own family that he shot and killed his father with a gun. State v. Fletcher and State v. St. Arnold, supra. Nevertheless, defendant's counsel in his oral argument before this Court advanced, for the first time, the theory that the admission of this evidence weakened defendant's defense of insanity because his ability to lead others to the place where he had concealed the murder weapon was inconsistent with the evidence of insanity. The record does not lend support to this rather slender reed upon which defendant now relies for support. To the contrary, the record shows that defendant had difficulty directing the officers to the area where he left the weapon. He remembered only that he hung the gun on a tree limb, and he had a vague recollection of a rock quarry. It was only after his uncles and a deputy sheriff had driven through Wilkesboro to the Kerr Scott Dam area, then back toward Yadkin County, where some local men directed them to the rock quarry road, that the sheriff noticed some tracks going up a bank which led him to the weapon. We find little in this evidence which would negate defendant's defense of insanity.
We hold that the trial judge did not err when he denied defendant's motion to suppress evidence concerning the location of the murder weapon and that he correctly ruled that the gun was admissible into evidence.
Defendant assigns as error the failure of the trial judge to submit voluntary manslaughter to the jury as a possible verdict.
Voluntary manslaughter is the unlawful killing of a human being without malice, express or implied, without premeditation and deliberation. State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971); State v. Benge, 272 N.C. 261, 158 S.E.2d 70 (1967).
Manslaughter is a lesser included offense of murder in the second degree. However, instructions on a lesser included offense are required only when there is evidence which would permit the jury to find that such included crime of lesser degree was committed by the accused. State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977); State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954).
In the case before us, the State's evidence tends to show that defendant saw his father sitting in his rocker-recliner chair in the *892 living room of his home. Defendant thereupon went to his car, obtained a gun, loaded it and returned to the carport door which led into the living room and shot his father. There was evidence that defendant and his father did not get along very well, but there had been no trouble between them on the day of the shooting. The State's evidence made out a case of murder in the first degree, and defendant offered no evidence to rebut the State's evidence as to the nature of the crime. Defendant's evidence tended to support only his plea of not guilty by reason of insanity.
This record discloses no evidence which would support a verdict of manslaughter, and we, therefore, hold that the court properly refused to charge on that lesser included offense. We note, in passing, that defense counsel specifically requested the trial judge not to instruct on manslaughter. Ordinarily, one who causes the court to commit error is not in position to repudiate his action and assign it as grounds for a new trial. State v. Payne, 280 N.C. 170, 185 S.E.2d 101 (1971); Sumner v. Sumner, 227 N.C. 610, 44 S.E.2d 40 (1947).
By his final assignment of error, defendant contends that portions of the trial judge's instructions improperly coerced the jury into returning a verdict. Prior to dinner recess between 6:00 p. m. and 7:00 p. m., the trial judge stated:
. . . Tomorrow is Thanksgiving. If at all possible, I would like to, in consideration of all concerned, have you reach a verdict before the evening is over, if you can. I want it to be clearly understood that the court is not, in any way, attempting to rush you in any way or to try to dictate to you as to what you should or should not do; but you have the responsibility to decide on the verdict in this case; and I'll not try to rush that or hamper you in any way in arriving at what you consider to be a just verdict under the instructions I have given you.
On numerous occasions, this Court has said that a trial judge has no right to coerce a verdict, and a charge which might reasonably be construed by a juror as requiring him to surrender his well-founded convictions or judgment to the views of the majority is erroneous. State v. Alston, 294 N.C. 577, 243 S.E.2d 354 (1978); State v. Cousin, 292 N.C. 461, 233 S.E.2d 554 (1977); State v. Roberts, 270 N.C. 449, 154 S.E.2d 536 (1967).
In instant case, Judge Kivett was careful to point out to the jury that he was not "attempting to rush you in any way or to try to dictate to you what you should or should not do . . .." In light of this cautionary language, we do not feel that this instruction improperly coerced the jury.
Defendant also challenges an instruction the trial judge gave the jury after bringing them into the courtroom at 9:55 p. m. to inquire whether they felt they were making any progress. Upon being told that they were "sort of hung up," Judge Kivett instructed in part:
These matters are mentioned now because some of them may not have been in your thoughts. This does not mean that those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion or opinions of other jurors or because of the importance of arriving at a decision. This does mean that you should give respectful consideration to each other's views and talk over any differences of opinion in a spirit of fairness and candidness. If at all possible, you should resolve any differences and come to a common conclusion so that this case may be completed.
You may be as leisurely in your deliberations as the occasion may require and take all the time that you feel necessary. The giving of this instruction at this time in no way means it is more important than any other instructions. On the contrary, you should consider this instruction together with and as a part of the instructions which I previously gave you.
Defendant contends that the jury was improperly coerced by that portion of the charge in which the court instructed, "If at *893 all possible, you should resolve any differences and come to a common conclusion so that this case may be completed." We disagree. In State v. McKissick, 268 N.C. 411, 150 S.E.2d 767 (1966), Chief Justice Parker quoted with approval from 89 C.J.S. Trial § 481, p. 128:
What amounts to improper coercion of a verdict by a trial court necessarily depends to a great extent on the facts and circumstances of the particular case and cannot be determined by any general or definite rule. . . . In urging the jury to agree on a verdict, the court should emphasize that it is not endeavoring to inject its ideas into the minds of the jurors and that by such instruction the court does not intend that any juror should surrender his own free will and judgment, and these ideas should be couched in language readily understood by the ordinary lay juror.
In instant case, the court did emphasize that it was not endeavoring to inject its ideas into the minds of the jurors and expressly stated the language approved in McKissick to the effect that no juror "should surrender their honest convictions."
A contextual reading of the charge discloses that the trial judge did not improperly coerce the jury to return a verdict.
NO ERROR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334772/ | 92 Ga. App. 296 (1955)
88 S.E.2d 533
JENKINS
v.
SMITH.
35715.
Court of Appeals of Georgia.
Decided June 24, 1955.
Charles Van S. Mottola, for plaintiff in error.
Byron H. Mathews, Jr., contra.
*299 CARLISLE, J.
1. "In a lease contract, where there is no stipulation to the contrary, the lessor impliedly warrants that the leased premises shall be open to entry by the lessee at the time fixed for taking possession. But the law does not impose upon the lessor the duty of putting the lessee in possession of the leased premises. It demands only that the possession shall not be withheld when the lessee seeks it under the contract." Browder-Manget Co. v. Edmondson, 7 Ga. App. 843 (1) (68 S.E. 453); Watkins v. Stulb & Vorhauer, 23 Ga. App. 181 (98 S.E. 94); and see Baxley v. Davenport, 75 Ga. App. 659, 662 (44 S.E.2d 388).
2. "When a landlord rents a building and puts a tenant in possession of the premises (with consequent liability for rent) the possession of the premises can not be surrendered by the tenant during the term of the lease, unless the surrender be accompanied by an agreement on the part of the landlord to retake possession. . . There must be either an express agreement to the surrender of possession on the part of the tenant, or such circumstances as compel the conclusion that the landlord consented to retake possession of his property." Lamb v. Gorman, 16 Ga. App. 663 (85 S.E. 981).
3. "The mere taking of the keys to the rented premises by the landlord from a vacating tenant `will not itself alone operate to establish as a matter of law an implied surrender and acceptance.'" Clark v. Sapp, 47 Ga. App. 91 (2) (169 S.E. 692).
*297 4. "Under a lease of real estate for a term of less than five years, and granting only the usufruct, the tenant cannot sublet the premises or transfer the lease without the consent of the landlord. . . Code § 61-101." Lawson v. Haygood, 202 Ga. 501 (43 S.E.2d 649). And a refusal on the part of the landlord to consent to the tenant's subletting the premises would not constitute a rescission of the lease agreement between the tenant and the landlord where no provision is made for subletting by the tenant.
5. Under an application of the foregoing rules of law to the facts of the present case, a verdict for the plaintiff landlord was demanded under the pleadings and evidence. The defendant admitted in his answer that he had leased the premises from the plaintiff for a period of one year, beginning September 1, 1953, at a monthly rental of $100. From all the evidence and reasonable deductions to be drawn therefrom, it appeared that the defendant had his office equipment and furniture shipped to Valdosta and placed in the house at points which he had indicated. As he was not present in Valdosta during the time his equipment was arriving, he arranged with the plaintiff, who lived next door to the leased premises, to open the house to the deliverymen. Some time after the defendant's equipment had been delivered, and before the defendant opened his office for the practice of medicine in Valdosta, he decided to investigate the possibilities for the practice of medicine in Newnan, Georgia. He so informed the plaintiff, but stated that he would keep the property in Valdosta, as he might be returning there. Sometime during the month of November he finally decided to practice in Newnan, and had his equipment moved out of the property in Valdosta, and the keys to the property were returned to the plaintiff. In December, he, on the demand of the plaintiff, paid the rent due for that month, stating that he still intended to live up to the terms of the lease, but that he wished the house could be rented so as to relieve him of the rent in whole or in part, and requesting that the plaintiff allow him to rent the premises himself to another, even if for only $50 per month, and requesting a reply from the plaintiff within one week. The plaintiff did not reply to the letter until some time in March when he demanded the rent for the months of January, February, and March. Though efforts were made to rent the premises by both the plaintiff and the defendant's agent, the house remained vacant until the end of the term for which the defendant had leased it. The plaintiff and defendant had, it appears therefore, entered into a lease agreement, the defendant had gone into possession, and while he surrendered the premises to the extent that he removed his equipment and returned the keys, he did so with the understanding that he was still to be responsible to the plaintiff for the rent to the end of the term. There was not such a surrender, therefore, as to relieve the defendant of the payments due for rent to the end of the term. The plaintiff's failure to reply to the defendant's letter requesting permission to rent the premises to another, or even the plaintiff's refusal to allow the defendant to sublet the premises, would not work a rescission of the lease agreement.
6. Consequent upon the rulings in the foregoing divisions of this opinion, the trial court did not err in denying the motion for a new trial, which was based on the usual general grounds and one special ground, complaining *298 that, since there were questions of fact for determination by the jury, the trial court erred in directing a verdict.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4216636/ | IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 123 MM 2017
:
Respondent :
:
:
v. :
:
:
BRYANT LAMONT MCCASKILL, :
:
Petitioner :
ORDER
PER CURIAM
AND NOW, this 31st day of October, 2017, the Application to File a Petition for
Allowance of Appeal Nunc Pro Tunc is DENIED. | 01-03-2023 | 10-31-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/2764393/ | IN THE COURT OF APPEALS OF IOWA
No. 13-1689
Filed December 24, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
THOMAS HENDRICKSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison
(plea and sentencing), Christopher L. McDonald (probation revocation), and
Douglas F. Staskal (motion to correct illegal sentence), Judges.
A defendant appeals from the district court ruling denying his pro se
motion to correct an illegal sentence. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney
General, John P. Sarcone, County Attorney, and Nan M. Horvat, Assistant
County Attorney, for appellee.
Considered by Doyle, P.J., Tabor, J., and Goodhue, S.J.* McDonald, J.,
takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
2
GOODHUE, S.J.
Thomas Hendrickson appeals from the district court ruling denying his pro
se motion to correct an illegal sentence.
I. Background Facts and Proceedings
On July 28, 2011, a trial information was filed charging Hendrickson with
sexual abuse in the third degree by engaging in sex with a fifteen-year-old
female. Hendrickson was twenty-seven years old at the time and not married to
the female. He entered a plea of guilty on October 7, 2011. He was given a ten-
year sentence, but the sentence was suspended and he was placed on probation
for five years. A no-contact order was entered prohibiting him from having
contact with any person under eighteen years of age. He was also sentenced to
lifetime supervision by the department of corrections as provided by Iowa Code
section 903B.1 (2011).
Hendrickson violated the terms and conditions of his probation agreement,
and on April 9, 2012, his probation was continued but made subject to placement
in the Fort Des Moines Residential Correctional Facility. Another report of
violation was filed, and on February 4, 2013, the district court revoked his
probation and imposed the original sentence.
On August 23, 2013, Hendrickson filed a pro se motion for correction of an
illegal sentence, challenging the section 903B.1 lifetime special sentence as an
illegal sentence in violation of the state and federal constitutions’ prohibition on
cruel and unusual punishment, as well as the constitutional prohibitions against
double jeopardy. On October 14, 2013, an unreported hearing was held on the
3
motion. Hendrickson participated telephonically and without counsel. The
district court overruled the motion.
Hendrickson has appealed. He made no request for court-appointed
counsel until sometime after the appeal had been filed. Counsel was appointed
on February 18, 2014. On appeal, Hendrickson contends that absent a waiver,
the court erred in failing to appoint counsel prior to the October 14, 2013 hearing.
He further contends the lifetime special sentence is grossly disproportionate to
the crime committed and violates the cruel and unusual punishment prohibitions
of the United States and Iowa Constitutions, and that the no-contact order
prohibiting him from having contact with persons under eighteen years of age is
an illegal order.
II. Error Preservation
To the extent that Hendrickson is attacking the legality of his sentence, he
is not required to preserve error. See State v. Thomas, 520 N.W.2d 311, 313
(Iowa Ct. App. 1994). The State points out that Hendrickson never requested
counsel, therefore no ruling was made and it necessarily follows that error has
not been preserved as to the right to counsel issue. See Lamasters v. State, 821
N.W.2d 856, 862 (Iowa 2012) (holding issues must ordinarily be decided by the
district court before being decided on appeal). The State’s argument begs the
underlying question of whether Hendrickson had a constitutional right to counsel.
If he had a constitutional right to counsel, the right to counsel existed until it was
expressly waived. State v. Rater, 568 N.W.2d 655, 658 (Iowa 1997). To waive
one’s constitutional right to counsel and represent himself or herself, a party must
knowingly, intelligently, voluntarily, and unequivocally waive that right and
4
affirmatively set out his intention to represent himself. Id. If the constitutional
right existed here, there is no record of the required waiver.
III. Standard of Review
A claim implicating a constitutional right to counsel is reviewed de novo.
State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010). Constitutional challenges to
an allegedly illegal sentence are reviewed de novo. State v. Ragland, 836
N.W.2d 107, 113 (Iowa 2013). If the right to counsel is statutory as opposed to
constitutional, our review is for errors of law. Id.
IV. Discussion
Hendrickson contends that a motion to correct a sentence is a critical
stage of the trial proceeding and therefore he has a constitutional right to
counsel. In considering the constitutional right to counsel, our supreme court has
noted that “the right to appointed counsel for a convicted criminal extends only to
the first appeal of right.” Fuhrmann v. State, 433 N.W.2d 720, 722 (Iowa 1988).
The constitutional right to counsel does not apply to collateral issues that long
ago became final. Id. Hendrickson did not file his motion to correct his sentence
until after the time to file an appeal had lapsed. Hendrickson’s requested relief
was made under Iowa Rule of Criminal Procedure 22.4(1). In Fuhrmann, the
requested relief was made using our postconviction-relief procedure, id. at 721-
22, but there is no reason to differentiate the application of one’s constitutional
right to counsel based on the procedure used to request the relief sought.
Hendrickson contends that the right to counsel as expressed in the Iowa
Constitution should be interpreted more expansively than the right to counsel
under the United States Constitution. The Fuhrmann court did not do so. Id. at
5
722. Further, Hendrickson does little more than cite the language of the Iowa
Constitution. We do not interpret a provision of our state constitution differently
than the United States Constitution on a mere citation of the applicable state
constitution provision. State v. Effler, 769 N.W.2d 880, 895 (Iowa 2009) (Appel,
J., dissenting). Furthermore, making an argument in a reply brief for the first time
is not timely. See Sun Valley Iowa Lakes Ass’n v. Anderson, 551 N.W.2d 621,
642 (Iowa 1996).
Even if Hendrickson did have a statutory right to counsel the statutory right
requires either the court to exercise its discretionary right to appoint counsel on
its own motion, or the defendant or someone on his behalf to make such a
request. Iowa Code § 815.10 (2011). The need for some action to be taken
before the appointment of counsel is required is in contrast to the constitutional
right, when the right to counsel attaches immediately and without request. See
Hannon v. State, 732 N.W.2d 45, 52 (Iowa 2007). As the trial court noted,
Hendrickson made no request for counsel and the court did not appoint counsel
on its own motion. The statutory right to counsel was not invoked until the
appellate level had been reached.
Hendrickson relies on State v. Alspach, 554 N.W.2d 882, 883 (Iowa 1996),
for his contention that a motion to correct a sentence is a critical stage of the
criminal proceeding and therefore the right to counsel continued until his motion
was heard. Alspach is a restitution case and can be differentiated from the case
at hand. 554 N.W.2d at 883. The restitution sentencing provision of the order
had been left open in Alspach until the amount of restitution had been
determined. Id. at 882-883. In Hendrickson’s case, the application of section
6
903B.1 was immediately included in the sentencing order. Furthermore, in the
Alspach case a request for counsel was made, which invoked the statutory right.
Id. at 882. Again, Hendrickson made no such request until the appellate level
was reached.
Hendrickson contends that the lifetime special sentence under section
903B.1 is grossly disproportionate to the crime committed and is therefore cruel
and unusual punishment. In a matter substantially similar to Hendrickson’s
situation, it was determined that the issue of whether the lifetime parole
provisions of Iowa Code section 903B.1 constitute cruel and unusual punishment
was not ripe for adjudication. State v. Tripp, 776 N.W.2d 855, 859 (Iowa 2010).
Hendrickson, in effect, admits he cannot differentiate his situation from the
situation existed in Tripp by urging that the Tripp case should be overruled. We
decline the invitation to do so and defer to our supreme court when such
requests are made.
Finally, Hendrickson contends the order entered prohibiting his contact
with any persons under the age of eighteen is an unauthorized, illegal sentence.
Hendrickson states he cannot tell if the injunction entered was a condition of
probation or a part of the sentencing order. The State concedes it was a
condition of the probation. The parties agree that if it was a condition of
probation, then when Hendrickson’s probation was revoked the no-contact order
was no longer effective. An appeal is ordinarily considered moot when the issue
it presents becomes nonexistent and its judgment is rendered with an unknown
practical effect. In re M.T., 625 N.W.2d 702, 704 (Iowa 2001). We generally
7
refrain from reviewing moot issues. State v. Hernandez-Lopez, 639 N.W.2d 226,
234 (Iowa 2002). We refrain from doing so in this case.
AFFIRMED. | 01-03-2023 | 12-24-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/2263397/ | 31 Cal.App.4th 1084 (1995)
37 Cal. Rptr.2d 712
THE PEOPLE, Plaintiff and Respondent,
v.
ADOLFO JASSO TORREZ, Defendant and Appellant.
Docket No. B077691.
Court of Appeals of California, Second District, Division Six.
January 24, 1995.
*1086 COUNSEL
Esther Rubin Sorkin, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Roy C. Preminger and Uzzi O. Raanan, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
STONE (S.J.), P.J.
Adolfo J. Torrez appeals from a judgment of conviction of two counts of driving while under the influence of alcohol (Veh. Code, § 23152, subds. (a), (b)), and one count of driving while his license was suspended for a prior conviction of driving under the influence (Veh. Code, § 14601.2, subd. (a)). The first two counts were felonies *1087 because appellant had incurred three prior convictions. (Veh. Code, § 23175.) He contends that: 1) the trial court committed reversible error by allowing the jury to use appellant's postarrest statements to the police as evidence of his guilt; 2) his defense counsel was ineffective in failing to challenge the relevance of his admission to a prosecution witness; and 3) he was denied a fair trial and due process by the trial court's instructing the jury with CALJIC No. 2.01. There is no reversible error, and we affirm the judgment.
FACTS
Gloria Lopez heard a loud noise while she was in her brother-in-law's front yard near the corner of Second Street and Garfield in Oxnard, California. She saw a large reddish car with severe damage in front. The car stopped 10 feet away from Ms. Lopez at the corner stop sign and stalled for about 5 to 10 minutes. The driver, whom she identified as appellant, was alone in the car. Appellant attempted to restart the vehicle but failed. He got out and staggered around the car. Between the time the car drove past Ms. Lopez and the time the police arrived, Ms. Lopez saw no other person in or around the car.
When Officer Cox arrived at the scene, he found appellant standing in the street on the driver's side of the vehicle. Officer Eglin had received a call concerning a traffic accident in the area of Second and Garfield. When he arrived at that location, he saw a red Buick with major front end damage. Appellant and Officer Cox were standing by the car when Eglin arrived. Appellant identified the car as his, and appeared to be highly intoxicated. He also stated that there was nothing mechanically wrong with the car.
Ms. Lopez told Officer Eglin that appellant was the driver of the car stalled at the stop sign and told him what had occurred. When she was taken to the car by Officer Eglin to identify the driver, appellant turned to Ms. Lopez and said in Spanish, "`I swerved so that I wouldn't hit the little girl.'" The officer gave appellant field sobriety tests and arrested him.
At trial it was stipulated that when arrested, appellant's blood-alcohol level obtained from breath tests was .33 and .32 percent. It was also stipulated that during his contact with Officers Cox and Eglin, appellant was under the influence of, and impaired by, alcohol.
Appellant testified that he was drinking beer on the day of his arrest at a local bar and arrived at the bar with Blas Serrano. When they later left the bar to go to a park to watch soccer, Mr. Serrano drove. Appellant said he felt *1088 a crash and it felt as though the car had flat tires. The car stopped a short time later and Mr. Serrano gave appellant the car keys and said, "`Let's go.'" The two got out of the car and Mr. Serrano left. Appellant examined the damage to the car and started to walk away to get a tow truck when an officer arrived and asked for his identification. The officer arrested him on an outstanding warrant.
Luis Perez Gutierrez testified that he was with appellant at the bar and had known appellant since 1979. When they decided to go to Park del Sol to watch some soccer, Mr. Gutierrez saw appellant get into a car driven by Blas Serrano. Appellant and Serrano never made it to the park. Appellant said he never saw Ms. Lopez, and never stated to her that he swerved to avoid a little girl. Appellant also testified that he never spoke with police officers upon his arrest, and never told them that he was driving the car or that someone else had crashed his car.
In rebuttal, Officer Eglin testified that he interviewed appellant after appellant was arrested and that appellant admitted he was driving the car. Appellant did not mention Mr. Serrano's name, and never told the officer that someone else had been driving the car.
DISCUSSION
1. No Reversible Error From Failure to Give Limiting Instruction on Proper Use of Postarrest Statements.
(1) Appellant asserts that the trial court committed reversible error by failing to instruct the jury that appellant's postarrest statements to the police, which the court had found were taken in violation of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], could be used only for the purpose of evaluating his credibility. The court instructed the jury that prior inconsistent statements could be used as substantive evidence of guilt. (CALJIC No. 2.13 (5th ed. 1988).) Appellant asserts that the court should have either excluded the statements, not given CALJIC No. 2.13, or given a limiting instruction.
In Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643], the United States Supreme Court held that a defendant's statements, taken in violation of Miranda, could be used to impeach the defendant's credibility even though they are not admissible in the prosecutor's case-in-chief so long as they were trustworthy. In Harris, the trial judge instructed the jury that the statements attributed to the defendant could be considered only in passing on the defendant's credibility and not as evidence of guilt. (Id., at p. 223 [28 L.Ed.2d at p. 3].)
*1089 In People v. Nudd (1974) 12 Cal.3d 204, 209 [115 Cal. Rptr. 372, 524 P.2d 844], the California Supreme Court adopted the ruling of Harris, but diverged from Harris's rule by holding that when a statement is admissible under Harris to impeach a defendant's credibility, absent a request by a party, the court has no duty to give an instruction limiting the purpose for which evidence may be considered. Nudd was overruled in People v. Disbrow (1976) 16 Cal.3d 101, 113 [127 Cal. Rptr. 360, 545 P.2d 272], on a different issue, i.e., whether Harris was persuasive authority in California. (See People v. Housley (1992) 6 Cal. App.4th 947, 957 [8 Cal. Rptr.2d 431].) Disbrow did not discuss the use of limiting instructions since it held that the privilege against self-incrimination of article I, section 15, of the California Constitution precluded the use of any extrajudicial statement by the defendant, inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, where the statements were obtained in violation of Miranda. (16 Cal.3d 101, 113.)
In 1988, the California Supreme Court held, in People v. May (1988) 44 Cal.3d 309 [243 Cal. Rptr. 369, 748 P.2d 307], that Disbrow had been abrogated by Proposition 8, and its "Truth-in-Evidence" component. (Cal. Const., art. I, § 28, subd. (d).) Since May, appellate courts have differed in whether trial courts must give a limiting instruction, sua sponte, on the use of a defendant's prior inculpatory or inconsistent statements obtained in violation of Miranda. People v. Duncan (1988) 204 Cal. App.3d 613, 620-621 [251 Cal. Rptr. 355], held that the federal rule requires that where such statements are admitted, the trial judge must admonish and thereafter instruct the jury that such statements may only be used in passing upon the defendant's credibility and not as evidence of his guilt, citing to Richardson v. Marsh (1987) 481 U.S. 200 [95 L.Ed.2d 176, 107 S.Ct. 1702].
In reaching its conclusion, Duncan relied upon a dissent by Justice Marshall in New York v. Quarles (1984) 467 U.S. 649, 683-684, footnote 6 [81 L.Ed.2d 550, 574-576, 104 S.Ct. 2626], that Harris permitted admissions to be introduced to impeach the defendant because the jury had been instructed in Harris to consider the statements only in passing upon credibility and not as evidence of guilt. (204 Cal. App.3d 613, 619.) Duncan also relied upon two federal cases in the Ninth Circuit which interpret Harris to require a limiting instruction. (See Hinman v. McCarthy (9th Cir.1982) 676 F.2d 343, 349; Duran v. Stagner (D.C.Cal. 1985) 620 F. Supp. 803, 805.) Consequently, the Duncan court concluded that the federal rule controls under In re Lance W. (1985) 37 Cal.3d 873 [210 Cal. Rptr. 631, 694 P.2d 744] and May, and that in such instances the trial court must sua sponte give the limiting instruction. (204 Cal. App.3d 613, 621.)
In People v. Wyatt (1989) 215 Cal. App.3d 255, 258 [263 Cal. Rptr. 556], the appellate court disagreed with the holding of Duncan. The court noted *1090 that the issue had been already decided in People v. Nudd, supra, 12 Cal.3d 204, 209, "overruled on other grounds in People v. Disbrow [supra] 16 Cal.3d 101, 113 [fn. omitted]," and that absent a request from a party, no limiting instruction was necessary. (215 Cal. App.3d 255, 258.) Wyatt concluded that Nudd should be followed. (Ibid.)
People v. Baker (1990) 220 Cal. App.3d 574, 579 [269 Cal. Rptr. 475], following Wyatt, when faced with whether a sua sponte limiting instruction was necessary for statements in violation of Miranda which are used to impeach a defendant, held that "... the California Supreme Court's statement in Nudd governs our decision on this issue."
We are persuaded by Wyatt and Baker that Nudd was not overruled on this issue in Disbrow and that we are bound by the California Supreme Court's statement in Nudd that, absent a request for a limiting instruction, the trial court has no sua sponte duty to give one. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937].) No recent decision other than Duncan has considered whether Nudd's holding on this issue is still in line with federal law.
Richardson v. Marsh, supra, 481 U.S. 200, 206-207 [95 L.Ed.2d 176, 185], in discussing whether a nontestifying codefendant's confession, redacted to omit any reference to defendant, violates defendant's Sixth Amendment confrontation rights, stated that the assumption that jurors follow their instructions has been applied in many varying contexts: "For example, in Harris v. New York, 401 U.S. 222 (1971), we held that statements elicited from a defendant in violation of Miranda v. Arizona, 384 U.S. 436 (1966), can be introduced to impeach that defendant's credibility, even though they are inadmissible as evidence of his guilt, so long as the jury is instructed accordingly. Similarly, in Spencer v. Texas, 385 U.S. 554 (1967), we held that evidence of the defendant's prior criminal convictions could be introduced for the purpose of sentence enhancement, so long as the jury was instructed it could not be used for purposes of determining guilt."
If Richardson means that the court has a sua sponte duty to instruct on the limited purpose of the use of postarrest statements violative of Miranda and of prior convictions, then California cases are out of step with federal law. (Compare People v. Duncan, supra, 204 Cal. App.3d 613, with People v. Wyatt, supra, 215 Cal. App.3d 255, and People v. Baker, supra, 220 Cal. App.3d 574, regarding statements violative of Miranda, and with People v. Kendrick (1989) 211 Cal. App.3d 1273 [260 Cal. Rptr. 27] regarding duty to give a limiting instruction on use of prior felony convictions and its effect on the credibility of a witness.) "In the wake of Proposition 8, however, *1091 California courts apply federal standards to Miranda-related issues of both substance ... and procedure...." (People v. Montano (1991) 226 Cal. App.3d 914, 930 [277 Cal. Rptr. 327]; see also People v. May, supra, 44 Cal.3d 309, 313.) Consequently, even though we are bound by Nudd as the California Supreme Court's last word, it may be time for the California Supreme Court to revisit this issue.
Appellant asserts that the trial court has a sua sponte duty to give instructions that correctly state the law. (People v. Cummings (1993) 4 Cal.4th 1233, 1337 [18 Cal. Rptr.2d 796, 850 P.2d 1].) However, unless and until Nudd is disapproved on this issue, the trial court here did instruct correctly.
(2) Appellant also contends he was prejudiced by the trial court's instructing the jury pursuant to CALJIC No. 2.13 that the jury could consider a prior inconsistent statement as evidence of the truth of the facts stated on the former occasion. Appellant claims that this instruction improperly impeached Mr. Gutierrez's testimony by the jury's being able to use appellant's prior inconsistent statements as substantive evidence of what occurred. However, as stated supra, Mr. Gutierrez's statements did not directly contradict Ms. Lopez's statements since Mr. Gutierrez was not present when the car stopped. As respondent notes, Mr. Gutierrez's credibility was already challenged by his close friendship with appellant for 15 years and the fact that the only disinterested eyewitness testified she clearly saw appellant driving the car. Thus, even if the court erred on this point by giving CALJIC No. 2.13, the error was harmless under either Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705, 87 S.Ct. 824, 24 A.L.R.3d 1065], or People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].
2. Defense Counsel Not Ineffective for Failing to Challenge Admission on Relevancy Grounds.
Defense counsel challenged under Evidence Code section 352 Ms. Lopez's statement that appellant told her he swerved to avoid hitting a little girl. He conceded that the statement was probative but argued that it was unduly prejudicial, especially due to the late disclosure of the statement at trial. (3a) Appellant now asserts that his counsel erroneously conceded the relevancy of this statement and also failed to raise the effect of his intoxication on the reliability of the statement.
A defense counsel is not required to make futile motions or to indulge in idle acts to appear competent. (People v. Turner (1992) 7 Cal. App.4th 1214, 1219 [10 Cal. Rptr.2d 358]; In re Lower (1979) 100 Cal. App.3d 144, 149 *1092 [161 Cal. Rptr. 24]; People v. Zikorus (1983) 150 Cal. App.3d 324, 335 [197 Cal. Rptr. 509].) Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence...." (Evid. Code, § 210.) (4) Relevant evidence under Evidence Code section 210 "comprehends both the probative value of evidence and its relationship to a matter which is provable in the action." (People v. Hill (1992) 3 Cal. App.4th 16, 29 [4 Cal. Rptr.2d 258].) The relationship of evidence to a provable matter is a question of materiality. (Ibid.) Evidence that does not relate to a matter in issue is immaterial. (Ibid.)
(3b) Appellant's admission to Ms. Lopez that he swerved to avoid hitting a little girl could hardly have been more probative to the disputed issue of whether he was driving the car. The possibility appellant's intoxication caused him to make a statement that upon sober reflection he might not have made does not affect its probity. Whether the statement was reliable in the sense of being credible goes to its weight and not its relevance. (See Crane v. Kentucky (1986) 476 U.S. 683, 688 [90 L.Ed.2d 636, 643-644, 106 S.Ct. 2142].) Similarly, the hypothesis appellant raises that his intoxication may have caused delusions that he was driving or swerved to avoid hitting the girl are matters that go to the weight of the evidence rather than its admissibility as relevant evidence. Appellant cannot show that any failure on the part of his defense counsel to object to the statement on grounds of relevancy was prejudicial or that a different outcome would have occurred. (See People v. Ledesma (1987) 43 Cal.3d 171, 217-218 [233 Cal. Rptr. 404, 729 P.2d 839]; Strickland v. Washington (1984) 466 U.S. 668, 687, 692 [80 L.Ed.2d 674, 696, 104 S.Ct. 2052].)
3. CALJIC No. 2.01 Did Not Deny Appellant a Fair Trial or Due Process.
(5) Appellant asserts that language in CALJIC No. 2.01 undermines the constitutional requirement that an accused may be convicted only if guilt is proven beyond a reasonable doubt.[1] He asserts that this instruction allows a conviction if a chain of circumstantial evidence pointing to guilt only appears to be reasonable, whether or not a chain of evidence that appears to be reasonable is also sufficient to prove guilt beyond a reasonable doubt.
Appellant acknowledges that the California Supreme Court has upheld the use of CALJIC No. 2.01 in the face of similar challenges. (See People v. *1093 Noguera (1992) 4 Cal.4th 599, 634 [15 Cal. Rptr.2d 400, 842 P.2d 1160]; People v. Wilson (1992) 3 Cal.4th 926, 943 [13 Cal. Rptr.2d 259, 838 P.2d 1212].) Nonetheless, appellant argues that because the Supreme Court upheld CALJIC No. 2.01 because the jury is adequately instructed not to convict except upon proof beyond a reasonable doubt, using the language of CALJIC No. 2.90, recent constitutional challenges to CALJIC No. 2.90 cast doubt on the correctness of these holdings.
The propriety of CALJIC No. 2.90 was recently upheld in Victor v. Nebraska (1994) 511 U.S. ___ [127 L.Ed.2d 583, 114 S.Ct. 1239]. Consequently, CALJIC No. 2.90 is still a correct interpretation of reasonable doubt. The California Supreme Court's rejection of appellant's argument is not open to question due to its reliance on CALJIC No. 2.90, and is binding on this court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450, 455.)
The judgment is affirmed.
Gilbert, J., and Yegan, J., concurred.
A petition for a rehearing was denied February 8, 1995, and appellant's petition for review by the Supreme Court was denied May 11, 1995.
NOTES
[1] CALJIC No. 2.01 provides, in pertinent part: "Also, if the circumstantial evidence [as to any particular count] is susceptible of two reasonable interpretations, one of which points to the defendant's guilt and the other to [his] innocence, you must adopt that interpretation which points to the defendant's innocence, and reject that interpretation which points to [his] guilt. [¶] If, on the other hand, one interpretation of such evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable." (Italics added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263448/ | 24 Cal.App.4th 285 (1994)
29 Cal. Rptr.2d 224
ABS INSTITUTE et al., Plaintiffs and Appellants,
v.
CITY OF LANCASTER, Defendant and Respondent.
Docket No. B074636.
Court of Appeals of California, Second District, Division One.
March 30, 1994.
*287 COUNSEL
Sanford I. Millar and Joel P. Schiff for Plaintiffs and Appellants.
*288 Stradling, Yocca, Carlson & Rauth, Donald J. Hamman and David H. Mann for Defendant and Respondent.
OPINION
VOGEL (Miriam A.), J
ABS Institute, Colby Plastics, and Polaris Pipe Company, Inc., filed a complaint for declaratory and injunctive relief challenging a City of Lancaster ordinance adopted to prohibit the use of ABS cellular pipe.[1] Judgment was entered in favor of the City and the Institute appeals. We affirm.
BACKGROUND
A.
Until the 1970's, every city and county in California adopted its own building code, unfettered by mandated state standards or state control. (City of Bakersfield v. Miller (1966) 64 Cal.2d 93, 97 [48 Cal. Rptr. 889, 410 P.2d 393].) In 1970, the Legislature put an end to all that by declaring a statewide interest in uniform building codes (Stats. 1970, ch. 1436, § 7, p. 2785) and otherwise expressing an intent to generally preempt the field. (Baum Electric Co. v. City of Huntington Beach (1973) 33 Cal. App.3d 573, 577 [109 Cal. Rptr. 260]; see also Danville Fire Protection Dist. v. Duffel Financial & Constr. Co. (1976) 58 Cal. App.3d 241, 248 [129 Cal. Rptr. 882].) But that is not to say that local authorities may never adopt ordinances which vary from the uniform codes. They may do so if they come within the exception of section 17958.5 of the Health and Safety Code,[2] which provides that "... a city or county may make such changes or modifications in the requirements contained in the provisions published in the California Building Standards Code and the other regulations adopted pursuant to Section 17922 [the Uniform Housing Code] as it determines, pursuant to the provisions of Section 17958.7, are reasonably necessary because of local climatic, geological, or topographical conditions." (Italics added.) To qualify for this pre-emption exception, the local entity must (as provided in subdivision (a) of section 17958.7) "make an express finding that such modifications or changes are *289 reasonably necessary because of local climatic, geological or topographical conditions." (Italics added.)[3]
B.
The state, through the Department of Housing and Community Development (HCD), reviews national model uniform codes and promulgates modifications which, in turn, are reviewed and approved by the California Building Standards Commission (and are then referred to as the California Building Standards Code). (§§ 17922, 18930, 18935.) Uniformity is achieved by requiring all cities and counties to adopt the uniform building codes, as modified by the HCD, as their local building codes. (§§ 17958, 18941.5.) Local modifications are permitted only as allowed by sections 17958.5 and 17958.7.
C.
Before 1982, the Uniform Plumbing Code (and, therefore, the California Building Standards Code) restricted the use of ABS pipe to "drain, waste and vent" pipe in residential structures of "two stories or less." In 1982, the Uniform Plumbing Code deleted the "two stories or less" limit and permitted the use of ABS pipe in any structure built with other "combustible" construction materials. But California did not go along with this amendment. Instead, it continued (and still continues) the two-story residential restriction on ABS pipe. (Cal. Code Regs., tit. 24, §§ 401, subd. (a)(2), 503, subd. (a)(2), & 1004, subd. (a).)[4]
FACTS
In 1989, the Lancaster City Council first considered Ordinance No. 541 which would have adopted HCD's modified Uniform Plumbing Code (with the two-story residential restriction on the use of ABS pipe). In reaction to citizen concerns about public safety, however, the City Council had its staff study the issue and prepare a report. Among other things, the report explained that some California cities (including Beverly Hills and San Leandro) had always banned the use of ABS drain, waste and vent piping and *290 that there had been some "failures" of ABS systems in those parts of the state where its use was permitted, as a result of which the International Association of Plumbing and Mechanical Officials (which publishes the Uniform Plumbing Code) had tightened its quality control program. The report recommended retention of the existing two-story residential restriction "unless testimony at the hearing [on the proposed ordinance] demonstrates to the Council further restriction is necessary."
At the scheduled hearing on the ordinance (Mar. 19, 1990), it became apparent that the ABS pipe issue needed further study and the hearing was therefore continued to April 2, 1990. On April 2, the plumbing code was segregated from the other codes covered by Ordinance No. 541 and introduced separately as Ordinance No. 545. After a request from an ABS pipe proponent for "a future public forum for addressing the pros and cons of the matter," the issue was continued to a special meeting set for May 9. Although ABS proponents as well as its opponents attended the meeting, only one expert testified. Tom Reed, a chemist with 17 years' experience who had been studying plastic pipe, including ABS, for 10 years, asked the City of Lancaster to "consider the inherent unsuitability of ABS for use in drain, waste and vent and [to] consider the City's geography, climate and the environment as a basis for excluding the pipe from the City Code."
Reed's testimony is quoted at length below. For the moment, it suffices to note that Reed stressed the flammability of ABS cellular pipe and the proximity of Lancaster to the San Andreas Fault, and then summed it up this way: "In your community here, because of your concern for seismic safety, fire safety, because of the intense sunlight and temperature changes of your desert environment, because of your problems with air quality, and your concern over water quality and solid waste, it may be appropriate for you to exclude this from the Code. The City is growing very rapidly and it seems that in the light of the City's special conditions and the questions over the mechanical suitability of the pipe, that excluding the material from the Code today, may ensure that these buildings which are being built and which will become an enduring part of your City, will be quality environments and be safe and will comply with the goals ... set forth in your own General Plan."
In addition to Reed, there was testimony by other, nonexpert witnesses opposed to the use of ABS pipe. David Birka-White, an attorney specializing in ABS pipe lawsuits (he represents plaintiffs), testified about his experience in 40 to 50 lawsuits since 1986. He commented upon statewide incidents of pipe failures, with sewage dumped directly into the walls of houses, and similar problems. In his view, the ABS pipe industry has been unable to *291 regulate itself sufficiently to ensure a quality product. A local plumber, Arnold A. Rodio, Jr., testified about several plumbing failures involving ABS pipe manufactured by several different companies.
No expert testimony was offered by the ABS proponents to controvert Reed's evidence about Lancaster's climatic, topographical and geological conditions. Instead, Sanford Millar, the Institute's attorney, testified about industry efforts to satisfy the HCD's concerns; Ted Grizzell, representing the Plastic Pipe and Fittings Association, testified in favor of expanded use of ABS pipe and pointed to a trade publication showing various devices available to inhibit the spread of smoke and fire through plastic pipe; and other plastic pipe manufacturers, wholesalers and plumbers testified in favor of ABS pipe.
On June 4, 1990, the City Council approved Ordinance No. 545, adopting by reference the Uniform Plumbing Code but prohibiting all use of cellular core ABS pipe in the City and limiting the use of solid core ABS pipe in residential construction to buildings not more than two stories in height.[5] Included in Ordinance No. 545 was a finding of necessity: "The provisions of this chapter are reasonably necessary because of local climatic, geographical, or topographical conditions. These findings are made pursuant to Sections 17958.5 and 17958.7 of the State Health and Safety Code and based upon evidence presented at the May 9, 1990 City Council meeting." As required by section 17958.7, subdivision (a), the City filed a copy of Ordinance No. 545 and a copy of the minutes of the May 9 meeting with HCD. After HCD notified the City that its "findings of need" were insufficient, the City Council adopted Resolution No. 90-277 to clarify its findings. Among other things, the City found that:
"A significant portion of the residential area of the City lies in the vicinity near the San Andreas Fault. The location of the Fault increases the likelihood of seismic disturbances of substantial magnitude occurring which would cause consequent damage. Such damage is often accompanied by structural fire. Because cellular core ABS pipe is combustible, emits toxic gases and acids, and generates large amounts of smoke, its presence increases the threat to life and property in the event of a seismic disturbance. Additionally, seismic activity would cause cellular core ABS pipe to weaken over time, yielding sewage problems."
"A large area under residential development in the northwestern portion of the City ... is potentially subject to liquefaction which may cause a loss *292 of lateral support for cellular core ABS pipe, resulting in its failure. Liquefaction often results in a greater degree and different form of differential movement which may cause excessive strain on cellular core ABS pipe."
"A sizable portion of the City ... is characterized by soils of high shrink-swell potential which will cause excessive strain on cellular core ABS pipe."
"The City is subject to climatic extremes where temperatures rise over one hundred degrees during the summer months and drop well below freezing at night during the winter months. The dramatic fluctuation in temperatures from the winter to summer months may cause excessive thermo-expansion and rapid degradation of cellular core ABS pipe resulting in its failure."
"High wind conditions normally exist in all areas of the City increasing the potential for fire spread. The presence of plastic pipe in combination with high winds increases the life hazard in the event of a fire."
"The City is divided by a major railway line and the Antelope Valley Freeway where homes are currently under development on both sides of such barriers. All vehicular travel across the railroad tracks is accomplished only through at-grade crossings. In the event of a major earthquake, there is a risk of disrupted rail use and blockage of the grade crossing. The barrier created by the railway line presents a hazard because vehicles responding to emergencies face potential delays or total obstruction across the railroad tracks. Further, a major earthquake may result in the collapse of freeway over crossings or undercrossings and a disruption of east-west access. In the event of a fire, toxic gases and acids emitted by cellular core ABS pipe and the smoke generated by the pipe create an increased hazard to life due to asphyxiation. Rapid response by emergency equipment becomes more critical as a result of the use of cellular core ABS pipe...."
These findings and Ordinance No. 545 were submitted to HCD. Before they were accepted (which they ultimately were), the Institute filed its complaint for declaratory and injunctive relief, alleging the Ordinance was invalid. The matter proceeded to trial on stipulated facts, at the conclusion of which the trial court rejected the Institute's push for independent judgment review, concluding that under either a "substantial evidence" or "abuse of discretion" standard, the City's findings were sufficient. The Institute appeals from the judgment thereafter entered in favor of the City.
*293 DISCUSSION
I.
(1a) Emphasizing preemption over local regulation, the Institute contends the uniform building codes expressly and impliedly preempt the field and local enactments are proper only when adopted in conformity with sections 17958.5 and 17958.7. Emphasizing the statutory exception, the City contends it is expressly authorized to modify a building code when local conditions made it necessary to do so. We choose not to play this game of semantics and simply state the rule as it has been declared by the Legislature:
(2) There is a statewide interest in uniform building codes and the field has therefore been preempted by state law, subject to a statutory exception which permits a local entity to modify the provisions of the California Building Standards Code when it determines, and expressly finds, that such changes are reasonably necessary because of local climatic, geological or topographical conditions. (§§ 17922, 17958.5, 17958.7; Baum Electric Co. v. City of Huntington Beach, supra, 33 Cal. App.3d at p. 577; Danville Fire Protection Dist. v. Duffel Financial & Constr. Co., supra, 58 Cal. App.3d at pp. 245-246; Briseno v. City of Santa Ana (1992) 6 Cal. App.4th 1378, 1381-1383 [8 Cal. Rptr.2d 486].)
II.
(3) We summarily reject the Institute's suggestion that there "is a serious issue in this case whether the authority of the City to adopt the ordinance ended because the findings were not adopted with the 180 day period" specified in section 17958 but rather were retroactively adopted thereafter. The Institute is reading into the statute a timing limitation which does not exist.
Section 17958 recites the right of cities and counties to make changes in the manner provided in sections 17958.5 and 17958.7 and provides that "[a]mendments, additions, and deletions to the State Building Standards Code adopted by a city or county pursuant to Section 17958.7, together with all applicable portions of the State Building Standards Code, shall become effective 180 days after publication of the State Building Standards Code by the State Building Standards Commission." (Italics added.) Nothing in this statute suggests that a delay in the effective date occasioned by the state's request for additional information somehow affects an otherwise timely modification. Accordingly, there is no issue, "serious" or otherwise, about the timing.
*294 III.
(1b) The Institute contends section 17958.5 "requires findings that local conditions (climatic, geological or topographical) deviate from prevailing statewide conditions, and that the deviation affects directly the element of the statewide code which is being modified." We disagree.
The statute, which is clear on its face, does not require a showing that the local conditions "deviate from prevailing statewide conditions," only that the changes are "reasonably necessary because of local climatic, geological, or topographical conditions." (§ 17958.5.) Where, as here, a statute is written in clear and unambiguous language, we need not search for some hidden meaning; to the contrary, we simply give the Legislature credit for saying what it meant. (Planned Parenthood Affiliates v. Swoap (1985) 173 Cal. App.3d 1187, 1193 [219 Cal. Rptr. 664].) In this instance, the statute does not tell us that a city has to establish that it has a peculiar, unusual or other deviant condition in order to justify a modification of a uniform code. To the contrary, it tells us that a city must show that its local climatic, geological or topographical conditions make it reasonably necessary to do something different than is required or permitted for the rest of the state.
Lancaster's proximity to a major earthquake fault illustrates the point. The Legislature has not said that the City of Lancaster must show that its proximity to the San Andreas Fault deviates from statewide conditions which, of course, it does not. Under the statute, all the City has to show is that its proximity to the San Andreas Fault makes it reasonably necessary to prohibit the use of cellular ABS pipe in residential construction, no more and no less.
We reject the Institute's suggestion that its reading of the statute is the only way to give effect to the Legislature's intent to preempt the field. The same Legislature that found the need for preemption also created the exception in section 17958.5, thereby demonstrating its understanding that the preemption of the field is not absolute. (See § 18941.5, subd. (b) ["Neither the State Building Standards Law ... nor the application of building standards ... shall limit the authority of a city, county, or city and county to establish more restrictive building standards reasonably necessary because of local climatic, geological, or topographical conditions"].)
Accordingly, it was not necessary for the City to demonstrate that its conditions deviated from statewide conditions.
IV.
(4a) The Institute contends the City's adoption of findings is an adjudicatory (not a legislative) process which, in turn, means the trial court should *295 have exercised its independent judgment in reviewing the evidence, conducted a de novo review and, if it decided to do so, substituted its decision for that of the City Council. We disagree.
A.
The fact that findings are required does not transform a legislative act into an adjudicatory process. (5) As the court explained in Joint Council of Interns & Residents v. Board of Supervisors (1989) 210 Cal. App.3d 1202, 1209 [258 Cal. Rptr. 762], "a legislative act generally predetermines what the rules shall be for the regulation of future cases falling under its provisions, while an adjudicatory act applies law to determine specific rights based upon specific facts ascertained from evidence adduced at a hearing." The adoption of an ordinance is a legislative act. (See Garrick Development Co. v. Hayward Unified School Dist. (1992) 3 Cal. App.4th 320, 327-329 [4 Cal. Rptr.2d 897] [a decision to impose school fees supported by statutorily mandated findings is nonetheless a legislative act].)
B.
(4b) But even assuming for the sake of discussion that there is an adjudicatory element present when findings are made, that fact alone does not obligate or even permit a trial court to exercise its independent judgment, substituting its conclusions for those of a legislative body. No fundamental vested rights are affected by the City's adoption of Ordinance No. 545 (Northern Inyo Hosp. v. Fair Emp. Practice Com. (1974) 38 Cal. App.3d 14, 23 [112 Cal. Rptr. 872] ["... there is no vested right to conduct a business free of reasonable governmental rules and regulations"]; Champion Motorcycles, Inc. v. New Motor Vehicle Bd. (1988) 200 Cal. App.3d 819, 824 [246 Cal. Rptr. 325] [the preservation of purely economic interests does not affect fundamental vested rights]), and the cases cited by the Institute for a contrary result are all inapposite.
C.
The Institute contends that, if it was not entitled to independent judgment review, it at least had a right (in the trial court) to substantial evidence review. (See Nishkian v. City of Long Beach (1951) 103 Cal. App.2d 749, 751 [230 P.2d 156]; Gubser v. Department of Employment (1969) 271 Cal. App.2d 240, 245 [76 Cal. Rptr. 577] [substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to support [the city's] conclusion"].) The City, in turn, claims the question was whether it abused its discretion. (Fullerton Joint Union High School Dist. v. State Bd. of *296 Education (1982) 32 Cal.3d 779, 786 [187 Cal. Rptr. 398, 654 P.2d 168] [the inquiry is not whether, if it had power to act in the first instance, the trial court would have taken the same action; "[t]he authority of the court is limited to determining whether the decision of the agency was arbitrary, capricious, entirely lacking in evidentiary support, or unlawfully or procedurally unfair"].)
For at least two reasons, we need not decide whether the trial court should have used the substantial evidence or abuse of discretion standard. First, the trial court wisely made a complete record by applying both tests and concluded that, under either standard, the findings are not subject to attack. Second, as the court explained in Balch Enterprises, Inc. v. New Haven Unified School Dist. (1990) 219 Cal. App.3d 783, 792 [268 Cal. Rptr. 543], the question under both standards is the same whether there was a reasonable basis for the decision. In this case, the answer under both standards is a resounding "yes."
Reed testified that ABS drain, waste and vent pipe is unsuitable as a plumbing material because it can absorb household chemicals which, in turn, can contribute to its mechanical failure. It degrades "very rapidly" when exposed to intense sunlight or to ozone and, "of course, if it burns, and it burns readily, it releases toxic smoke.... ABS is basically a highly flammable material and the ABS which is being used for drain, waste [and] vent pipe is a very highly flammable material." Reed then explained that "some of the most important [local factors] are identified in the City's own General Plan."
According to Reed, the most significant local issue in Lancaster is earthquakes. "The whole Antelope Valley is bounded by the San Andreas Fault ... and you have a high potential for seismic damage, not only ground shaking but ground liquefaction. Your City General Plan identifies this as being a very significant constraint both to the City that exists today and the City that you are building for the future and you're building very rapidly. Most of the City and its Sphere of Influence is in Seismic Class I which is subject to severe shaking, and in fact, much of it is an area subject to liquefaction."
Reed continued: "[T]he pipe is rigid ... and it doesn't have as much flexibility as the alternative, which is cast iron with a stainless steel and neoprene connector. So, in the event of seismic shaking, ... there is a greater likelihood that pipe which is weakened through environmental attack or chemical attack..., pipe that is weakened this way can fail. And I can tell you from having been in the Bay area during our October quake, people *297 were shocked at how little damage it took to make a structure uninhabitable. And, in the panic of a quake and the damage that you have, the last thing you need is sewage all over the place. The last thing you need is having ... part of your housing stock, put out of action simply because there is ... damage to the drain, waste [and] vent system. It is an important thing to consider in an area of high seismic risk."
Flammability, he explained, is an issue by itself and as it relates to earthquakes: "The fire hazard aspect of ABS is also significant ... in the context of a seismically active area. ABS burns well.... ABS is in important places in a house. It's underneath. It's behind the walls. It's out of sight. A lot of fires start in basements from ... heating systems or defective wiring or things like that and the ABS is able to propagate fire and toxic smoke out of sight and out of the reach of smoke detectors.... Now, when you combine an earthquake and fire potential, you get the standard disaster scenario that a City must face. In the 1906 quake in San Francisco, ... it was the fires that destroyed the City. Again, in 1989, it was the fires and the difficulty of controlling the fires. And so, in a seismically active area, it seems that the last thing you'd want is more flammable material.... So, I think in terms of ... the location close to the San Andreas Fault, ... ABS deserves serious consideration in exclusion."
And Reed described other important local factors, including intense sunlight, ozone and a high degree of temperature variations. The change from an intensely cold night to rapid warming during the day "puts a lot of mechanical stress on the system." ABS installation requires glue, which contains solvent, which contributes to air quality problems. Waste disposal is another problem. "The mere presence of the flammable ABS makes demolition debris non-inert [which] can cause a problem for an area that is concerned with landfill capacity. And plus, it's a hard product to recycle correctly."
The City's findings, based primarily on Reed's uncontroverted testimony, are clearly based on substantial evidence (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal. App.3d 1040, 1052 [236 Cal. Rptr 526] [the testimony of one credible witness is sufficient to constitute substantial evidence]; Karlson v. City of Camarillo (1980) 100 Cal. App.3d 789, 803-804 [161 Cal. Rptr. 260] [a difference of opinion, no matter how strongly presented, does not warrant rejection of a city's action where the city was presented with opposing viewpoints, which it considered extensively, and on the basis of evidence selected one alternative rather than the other]) and, for the same reason, the City did not abuse its discretion.
D.
As should be apparent by this point, the Institute's related contention that we are entitled to reach a different result based on our review of the record *298 is technically correct but irrelevant. We have read Reed's testimony, reviewed the other evidence and considered the findings made by the City Council. We are satisfied, as was the trial court, that the evidence amply supports the findings, that there was no abuse of discretion, and that there is a reasonable basis for the City's findings and its adoption of Ordinance No. 545. Lancaster's proximity to a major earthquake fault and its climatic extremes, when combined with the flammable nature of ABS cellular pipe, together constitute a reasonably necessary basis for an amendment to the Uniform Plumbing Code.
V.
(6) Finally, we summarily reject the Institute's argument that it has been denied the equal protection of the laws because not all plastic pipe was banned by Ordinance No. 545. Where, as here, there is no evidence in the record to show whether other plastic pipe is as flammable or otherwise subject to the same criticisms as ABS cellular pipe, a local economic regulation is not subject to attack on equal protection grounds. (New Orleans v. Dukes (1976) 427 U.S. 297, 303 [49 L.Ed.2d 511, 516-517, 96 S.Ct. 2513] [unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions, the constitutionality of a local economic regulation will be presumed].)
DISPOSITION
The judgment is affirmed. The City of Lancaster is awarded its costs of appeal.
Spencer, P.J., and Ortega, J., concurred.
NOTES
[1] ABS is an acronym for acrylonitrile-butadiene-styrene, a plastic pipe manufactured in both solid wall and cellular core forms. The ABS Institute is a trade association of ABS resin suppliers and ABS plastic and pipe manufacturers; the other appellants are manufacturers. For convenience, we refer to the appellants collectively as "the Institute."
[2] Unless otherwise stated, all section references are to the Health and Safety Code.
[3] Not surprisingly, the Institute and the City read these statutes from different perspectives. The Institute sees an almost total preemption, with an extremely narrow exception. The City sees an "unmistakable" declaration of "shared authority." As will appear, we agree with the Institute that the field has been preempted but we conclude the City has followed the appropriate procedure and made the findings necessary to bring its ordinance within the statutory exception of section 17958.7.
[4] Meanwhile, in 1991 the Uniform Plumbing Code backed off its 1982 amendment and now permits the use of ABS pipe only in "structures not exceeding three floors above grade." California retained the two-story restriction for the same reason the model code went back to a three-story restriction fire. ABS pipe melts in fires and, when it melts, it emits highly toxic gasses.
[5] In 1991, the state adopted a revised model Plumbing Code and the City, in turn, readopted Ordinance No. 545 in 1992 (as Ordinance No. 604). The parties have stipulated that this litigation applies to the current version of the ordinance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263469/ | 142 F.Supp. 939 (1956)
James C. SELF, Jr.,
v.
The UNITED STATES.
No. 54-54.
United States Court of Claims.
June 5, 1956.
John C. Reid, Washington, D. C., for plaintiff. Ivins, Phillips & Barker, Washington, D. C., were on the brief.
Sheldon J. Gitelman, Silver Spring, Md., with whom was Asst. Atty. Gen. Charles K. Rice, for defendant. Andrew D. Sharpe, Washington, D. C., was on the brief.
Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges.
LITTLETON, Judge.
This is a suit to recover gift taxes paid by plaintiff for the year 1951, in the amount of $918.23. The facts have been stipulated and may be summarized as follows:
On November 23, 1948, plaintiff's father transferred a block of common stock of a corporation called Greenwood Mills in trust, with the income from the trust fund to be paid to plaintiff for life, with remainders to plaintiff's descendants, if any, and if none, to a charitable foundation. By this trust instrument plaintiff was given the right at any time during his life to appoint by deed all or part of the trust property to or among his descendants. *940 The plaintiff's father paid a gift tax upon the entire value of the property transferred in trust on November 23, 1948.
On October 2, 1951, plaintiff exercised the limited power of appointment given him under the trust instrument by executing 2 deeds appointing 100 shares of the Greenwood Mills common stock to a trust for his son and 100 shares of the same stock to a trust for his daughter. The 200 shares were, pursuant to the terms of the trust, separated and transferred to the 2 trusts for the benefit of plaintiff's children. The plaintiff filed a gift tax return for 1951, and paid, inter alia, a gift tax on the value of the right to receive the income for life from the 200 shares of Greenwood Mills common stock. The plaintiff filed a timely claim for refund. No action has been taken on the claim and this suit was timely filed.
The issue before the court is whether in exercising his limited power of appointment the plaintiff made a taxable gift equal to the value of the right to receive the income for life from the trust property transferred.
The applicable portion of the statute, 26 U.S.C. § 1000, 1952 ed., is as follows:
"Sec. 1000. Imposition of tax. (a) For the calendar year 1940 and each calendar year thereafter a tax, computed as provided in section 1001, shall be imposed upon the transfer during such calendar year by any individual, resident or nonresident, of property by gift. * * *
"(b) The tax shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible; * * *.
"(c) * * * Powers created after October 21, 1942. The exercise of a general power of appointment created after October 21, 1942, or the release after May 31, 1951, of such a power, shall be deemed a transfer of property by the individual possessing such power. A disclaimer or renunciation of such a power of appointment shall not be deemed a release of such power.
"(3) Definition of general power of appointment. For the purposes of this subsection the term `general power of appointment' means a power which is exercisable in favor of the individual possessing the power (hereafter in this paragraph referred to as the `possessor'), his estate, his creditors, or the creditors of his estate; * * *."
At common law, the transfer of property under a power of appointment was considered to have been made directly from the donor to the appointee. The donor's instrument effected the transfer and the property did not belong to the donee. Prior to 1942, the common law concept of powers of appointment was followed by the courts in gift tax cases and it was held that the appointment by the donee of the power did not constitute a taxable gift on the part of the donee. Florence E. Walston v. Commissioner, 8 T.C. 72, affirmed 4 Cir., 168 F.2d 211; Mabel F. Grasselli v. Commissioner, 7 T.C. 255, and the cases cited therein. Section 452 of the Revenue Act of 1942. 56 Stat. 798, and section 3(a) of the Powers of Appointment Act of 1951, 65 Stat. 91, amended section 1000 of the 1939 Internal Revenue Code to provide that the exercise or release of a general power of appointment is taxable, with certain limitations relative to effective dates.
The defendant concedes that the transfer of an interest in property pursuant to the exercise of a limited or special power of appointment is not subject to the gift tax. It is defendant's position that the plaintiff's power related only to the trust corpus, not to the trust income, and that the transfer of the income interest was not made pursuant to a limited power and is therefore subject to the gift tax. The defendant argues that plaintiff transferred two separate interests when he exercised his limited power of appointment. First, he transferred 200 shares of stock in which he *941 had no interest or vested right. Second, he transferred his vested right to the income from those 200 shares for his life. The plaintiff contends that because of the inherent nature of the income-producing property, such as the stock, it was impossible to transfer the property pursuant to the power of appointment without transferring the fruits from the property.
We believe that when the donee exercises a power of appointment over a corpus consisting of income-producing property by transferring part of the income-producing property to the appointee, the income to be earned from the property thus transferred automatically and necessarily goes with the legal title to the property, unless provision is specifically made for the contrary. In fact, the terms of the provision granting the power of appointment to plaintiff indicate that plaintiff's right to the income from the part of the corpus transferred pursuant to the power was to terminate upon the exercise of the power.[1] The first sentence of this article provides that the "entire net income of the trust fund" should be paid to plaintiff during his life. The second sentence provides that nevertheless, plaintiff should have the power by deed to appoint any or all of the corpus to his descendants. The third sentence provides that upon the exercise of the power the "trustees shall separate from the trust fund the portion or portions appointed and pay over such portions" as instructed by plaintiff.
The defendant admits that the right to the income to be earned from the shares was transferred automatically pursuant to the exercise of the power of appointment by the imposition of a gift tax on the value of the income when the power was exercised. The plaintiff did not purport to make an independent gift of the right to the income and the deeds of appointment by their terms related only to the shares of stock.
The defendant makes a general argument, the essence of which is that a gift tax should be imposed on the donee of a limited power of appointment upon the exercise of the power when the donee has a beneficial interest in the property transferred pursuant to the power. This argument is based on the theory that such a donee is giving up an economic interest when he exercises the power. This same argument and precise question were presented to the court in Commissioner v. Walston, 4 Cir., 168 F.2d 211. In that case, the taxpayer's father left a share of his estate in trust with the income to the taxpayer for life with remainders over. The taxpayer was also given the power to appoint the principal or income of the trust to or among her father's descendants by deed during her lifetime and/or to appoint the property to anyone by will at her death. In 1938, the taxpayer appointed by deed to her brother one-half of the trust corpus and the income for his life from the remaining half of the trust corpus. The Commissioner of Internal Revenue contended that the taxpayer made a taxable gift of her right to the income from the trust for her life. The Tax Court and the Court of Appeals held that the right to the income was transferred under the power of appointment and not by the taxpayer in her independent capacity and therefore the transfer was not taxable. Each court pointed out that where the income beneficiary had a life estate subject to a power of appointment, the income beneficiary had a temporary interest *942 which might last for life, but which was subject to termination if and when the power of appointment was exercised. Consequently, to the extent the power is exercised, the income beneficiary's estate is terminated by reason of the power and not by a desire on the part of the income beneficiary to give up the life estate irrespective of the power.
The donor of the power of appointment is considered the transferror of the gift and the donee merely acts as his agent and gives direction to the gift pursuant to the donor's wishes. Unless the power of appointment concept is ignored, there is no difference between making the income beneficiary the donee of the special or limited power of appointment and making a third person who has no beneficial interest in the income or corpus the donee of the power. In the latter event no one would suggest that a gift tax should be imposed when the life estate of the income beneficiary is terminated by the transfer of the corpus pursuant to the exercise of the power.
The Congress has chosen to ignore this concept insofar as general powers of appointment are concerned and therefore has specifically subjected them to tax under section 1000(c). However, as defendant concedes, this concept is still applicable to property or interest that is transferred under a special or limited power of appointment.
The defendant refers us to Treasury Regulations 108, sec. 86.2(b) (2) (as amended by T.D. 6077, 1954-2 C.B. 308) as authority for its position.[2] Congress has chosen not to impose a gift tax on property transferred under a special or limited power of appointment and if the property was transferred under a special or limited power of appointment, as it was in this case, it is not taxable. We do not deem this portion of the regulation necessarily inconsistent with our decision because the plaintiff in the instant case did not have, in addition to his special power, a general power to appoint by will, as is the case in the example given in the regulation. However, to the extent that the example given in the regulation implies that a donee, who has only the right to the income from the corpus subject to a special or limited power of appointment, is subject to a gift tax on the exercise of the special or limited power of appointment, we disagree with it.
Plaintiff is entitled to recover and judgment will be entered in the amount of $918.23, with interest as provided by law.
It is so ordered.
JONES, Chief Judge, and LARAMORE, MADDEN and WHITAKER, Judges, concur.
NOTES
[1] The provision of the trust indenture granting this power of appointment was as follows:
"The Trustees shall pay the entire net income of the trust fund to the Grantor's son, James C. Self, Jr., for and during his life. The said James C. Self, Jr., shall nevertheless have the power by deed during his lifetime to appoint all or any portion of the trust corpus to or among his descendants, or any of them, in such portions or amounts, and at such time or times, as he shall determine. Upon the exercise, or upon the various exercises of such power, the Trustees shall separate from the Trust Fund the portion or portions appointed and pay over such portions in accordance with the instructions of James C. Self, Jr."
[2] Treasury Regulation 108: "No provision of section 1000(c) or of this section is to be construed as in any way limiting the application of any other section of the Internal Revenue Code or of these regulations. For example, if under the terms of a trust A is given the income for life and the power to appoint the entire trust property by deed during her lifetime to a class consisting of her children and the further power to appoint the entire trust property by will to anyone including her estate and A exercises the inter vivos power in favor of her children, she is considered to effectuate a transfer of her income interest which constitutes a taxable gift under section 1000(a). This transfer also results in a relinquishment of her general power to appoint the property by will. In case the power was created after October 21, 1942, such a transfer, if occurring after May 31, 1951, constitutes a taxable gift under section 1000(c)." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263332/ | 893 A.2d 12 (2006)
383 N.J. Super. 581
Diane A. ELLISON, Individually and as Guardian Ad Litem for Luke Whittle, Plaintiff-Appellant,
v.
CREATIVE LEARNING CENTER and Bonnie Pauska, Defendants-Respondents/Cross-Appellants.
Superior Court of New Jersey, Appellate Division.
Argued November 29, 2005.
Decided March 8, 2006.
*13 Joel N. Kreizman, Ocean, argued the cause for appellant (Evans, Osborne and Kreizman attorneys; Mr. Kreizman on the brief).
Robert A. Morley argued the cause for respondents/cross-appellants (Stephen E. Gertler, Wall Township, attorney; Mr. Morley on the brief).
Before Judges AXELRAD, PAYNE and MINIMAN.
The opinion of the court was delivered by
PAYNE, J.A.D.
Plaintiff Dianne Ellison appeals on her own behalf and on behalf of her minor son, Luke, from an order of summary judgment dismissing their claim of discrimination *14 on the basis of disability filed pursuant to the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 to -45, against defendants the Creative Learning Center (CLC) and its owner, Bonnie Pauska. Plaintiffs' claim arises out of the CLC's alleged decision to exclude Luke from its pre-school program because he utilized an insulin pump as a means of administering treatment for his juvenile diabetes. The CLC and Pauska have cross-appealed from the court's determination that the CLC is a place of public accommodation under N.J.S.A. 10:5-5(1) and that plaintiffs' cause of action was not preempted by the federal Individuals with Disabilities Education Act (IDEA), 20 U.S.C.A. §§ 1400 to 1482. We affirm in part and reverse in part.
Luke was born on November 18, 1997, and was diagnosed with Type I (juvenile) diabetes in February 1999. Until July 2002, Luke was administered insulin for the treatment of his condition through hypodermic syringes. In July, Luke was fitted with an insulin pump that delivered a gradual infusion of insulin through a tube implanted under his skin.
During the 2001-2002 school year, Luke had attended St. John's Nursery School, where the teaching staff performed the blood tests required to monitor Luke's glucose levels. In January 2002, Ellison sought admission for Luke at the CLC, where, after an interview and observation, he was accepted for the term commencing in September 2002. It was anticipated that Luke would attend school from 9:00 a.m. to 11:45 a.m. four days a week. The fact that Luke was a diabetic was disclosed at the time of the initial interview, and Ellison demonstrated then how to perform a blood glucose test. Luke was the school's first diabetic student.
In August 2002, Ellison informed Pauska that Luke had been fitted with an insulin pump, and she sought a meeting to explain its use to the school's teachers. The meeting was scheduled for September 5, after the teachers returned from their summer break. On that date, Ellison met with two teachers to explain the pump's operation. She told them, among other things, that if Luke were given a snack or other food at school, he could need an additional boost or bolus of insulin that would be administered through the pump. In order to calculate the amount of the bolus, the teachers would need to estimate the amount of carbohydrates that Luke had eaten and program the pump accordingly. Ellison also testified in her deposition that she "explained to them the importance of balancing insulin and food, and [that] too much insulin whether it's given by needle ... or pump without the balance of food ... can have fatal effects." Ellison testified additionally that she had offered to come to school to train the teachers on the proper use of the pump.
According to Ellison, on the day that the meeting had occurred, she was called by Pauska who, after a preliminary conversation in which she asked Ellison to personally monitor Luke's care at school throughout the year, withdrew Luke's acceptance. Pauska has denied doing so, and claims that Ellison withdrew Luke from the school in a fax received on September 6. Pauska has claimed additionally that on September 5, after the meeting between Ellison and the teachers, she called the State and was referred to the Child Care Health Consultant Coordinator for Monmouth County, Patricia Luccarelli, who informed her that any training of school personnel should be done by a medical professional such as Luke's endocrinologist, and that certain authorization forms would have to be executed by Ellison. Luccarelli confirmed the substance of Pauska's statement regarding their communications in deposition testimony, and *15 stated further that she prepared materials for Pauska's use and, with Pauska's agreement, met with her at CLC on the following day to discuss Luke's care. Pauska claims to have called Ellison after speaking to Luccarelli in order to arrange for instruction by Luke's endocrinologist, and to have left a message for her. Ellison denies the call.
Following the September incident, Luke was re-enrolled at St. John's Nursery School, where he remained until entering public school. Fees paid by Ellison to CLC were returned to her at her request, along with a letter dated September 18, 2002 that refers to Luke's condition and the reasons for the termination of his enrollment at the CLC. Suit was filed against the CLC and Pauska on June 9, 2003.
After the period for discovery had ended, the CLC and Pauska moved for summary judgment. In granting that motion, the judge found that the CLC was a place of public accommodation to which the NJLAD applied, and that the NJLAD was not preempted in this case by the federal IDEA. However, the judge found no obligation on the CLC's part to provide reasonable accommodations for Luke's care, and thus granted summary judgment in defendants' favor. Plaintiffs' appeal and defendants' cross-appeal followed.
I.
We affirm the trial court's determination that the CLC, a profit-making entity offering to the public progressive educational programs for children from the age of three through the first grade, was a place of public accommodation subject to the antidiscrimination provisions of the NJLAD. N.J.S.A. 10:5-12f(1) (prohibiting discrimination in places of public accommodation). The statute's definitional section, N.J.S.A. 10:5-5(l), provides that a place of public accommodation
shall include, but not be limited to: ... any kindergarten, primary and secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey. Nothing herein contained shall be construed to include or to apply to any institution, bona fide club, or place of accommodation, which is in its nature distinctly private; ... nor shall anything herein contained be construed to bar any private secondary or post secondary school from using in good faith criteria other than race, creed, color, national origin, ancestry or affectional or sexual orientation in the admission of students.
The CLC argues that it is not a place of public accommodation because it is a "distinctly private" entity that offers services of an "exclusive nature" to candidates selected through a vetting process that ensures the exclusion of children "who would not benefit from the highly active, non-traditional, open classroom learning environment." It also claims exclusion from the definition of a public accommodation because it operates as a day care center overseen by the Department of Human Services, pursuant to N.J.S.A. 30:5B-4, not the Department of Education, and it asserts that it does not provide the educational services offered by institutions regulated by the Department of Education.
Claims of exemption from the NJLAD on the basis of the private character of the entity "require close scrutiny by... the courts," Frank v. Ivy Club, 120 N.J. 73, 102, 576 A.2d 241 (1990), cert. denied, 498 U.S. 1073, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991), so that "[no] device *16 whether innocent or subtly purposeful can be permitted to frustrate the legislative determination to prevent discrimination." Ibid. (quoting Clover Hill Swimming Club v. Goldsboro, 47 N.J. 25, 34, 219 A.2d 161 (1966)) (quoting Jones v. Haridor Realty Corp., 37 N.J. 384, 396, 181 A.2d 481 (1962)). In this regard, "[t]he elimination of discrimination in educational institutions is particularly critical." Id. at 110-11, 576 A.2d 241.
The motion judge found that, despite the fact that the school was supervised by the Department of Human Services, it was a place of public accommodation because it engaged in broad public solicitation for students through an advertisement in the Yellow Pages and filled an essential role in providing pre-school education that was not offered by public schools. The judge found the school did not fit within the exemption for private institutions, because it was not a membership organization, it extended its solicitations to the public in general, it was organized for profit, and it was controlled by stockholders, not members. Moreover, the court noted that the school treated itself as a place of public accommodation, since on its enrollment form it held itself out as having an open admission policy and as nondiscriminatory.
We find the court's analysis of this issue to have been correct. As the Supreme Court has recognized, because the goal of the NJLAD is to eradicate the "cancer of discrimination," the statute must be broadly interpreted to further its purposes. Dale v. Boy Scouts of Am., 160 N.J. 562, 584-85, 734 A.2d 1196 (1999), rev'd and remanded on other gr., 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000); see also N.J.S.A. 10:5-3 (declaring that the NJLAD shall be liberally construed). In this context, "[a] clear understanding of the phrase `place of public accommodation' is critical" since it is determinative in large measure of the NJLAD's scope. Dale, supra, 160 N.J. at 585, 734 A.2d 1196.
Precedent has long established that places of public accommodation are not limited to those set forth in the statute. Fraser v. Robin Dee Day Camp, 44 N.J. 480, 486, 210 A.2d 208 (1965). As the Court found there, the statutory definition's use of the word "include" to introduce a listing of examples demonstrates that the list is "merely illustrative of the accommodations the Legislature intended to be within the scope of the statute. Other accommodations, similar in nature to those enumerated, were also intended to be covered." Ibid. The Legislature's intent has been further clarified by the addition of the words "but not be limited to" at the beginning of the enumeration. See L. 1966, c. 17 § 1.
As the motion judge recognized, in determining whether an entity constitutes a place of public accommodation, the focus appropriately rests on whether the entity "engages in broad public solicitation, whether it maintains close relationships with the government or other public accommodations, or whether it is similar to enumerated or other previously recognized public accommodations." Dale, supra, 160 N.J. at 588, 734 A.2d 1196.
The existence of broad public solicitation has "consistently been a principal characteristic of public accommodations." Ibid. The record in this case discloses that the CLC engaged in such solicitation through the placement of at least one widely circulated advertisement for the school. That it is selective in its admissions is of no moment, since an invitation to apply is given to the public at large. Indeed, the statutory definition contained in N.J.S.A. 10:5-5(l) confirms that selectivity in admissions may exist in places of public accommodation, since that definition authorizes the use of selective admissions criteria in connection *17 with secondary and post secondary education, so long as they are non-discriminatory in nature. In Frank, the fact that Princeton University, a selective private school, was a place of public accommodation was considered indisputable. 120 N.J. at 110, 576 A.2d 241.
Moreover, the CLC of necessity maintains close ties to government as the result of its licensing and regulation through the Department of Human Services, see N.J.S.A. 30:5B-1 to -15; N.J.A.C. 10:122-1.1 to -9.9. Further, the record discloses that the enrichment and progressive learning programs that the CLC offers are educational in nature and are closely related in their function to those provided by the kindergartens and primary schools that are specifically identified in the statutory definition of a place of public accommodation. "Public schools and public education" as places of public accommodation, "assuredly are covered by the anti-discrimination law." Hinfey v. Matawan Regional Bd. of Educ., 77 N.J. 514, 523, 391 A.2d 899 (1978). The CLC, which operates as a non-sectarian private school, cannot be meaningfully distinguished in this context. That the CLC is operated for profit, is controlled by shareholders, and engages in public advertising provide further grounds for its inclusion as a place of public accommodation. See Clover Hill Swimming Club, supra, 47 N.J. at 34-35, 219 A.2d 161.
The CLC has none of the indicia of privateness that would warrant its exclusion from the definition of a place of public accommodation. Its origin, admissions criteria and governance bear no resemblance to analogous features that characterize membership organizations, and it does not restrict its student body other than by criteria related to a student's suitability to undertake the program. We thus find no factual dispute sufficient to warrant submission of the issue of the CLC's status to a jury. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 A.2d 146 (1995). The court's determination of this issue is affirmed.
II.
We also affirm the motion judge's determination that the application of the NJLAD to this case was not explicitly preempted by the federal IDEA, and preemption did not occur as the result of the operation either of the doctrines of field or conflict preemption. See R.F. v. Abbott Labs., 162 N.J. 596, 618-19, 745 A.2d 1174 (2000)(discussing theories of preemption). Because the IDEA is inapplicable to Luke, the issue of preemption does not arise in this case.
The IDEA was enacted by Congress to facilitate "our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities[,]" and it affirms that "[i]mproving educational results for children with disabilities is an essential element" of federal policy. 20 U.S.C.A. § 1400(c)(1). One of the statute's primary purposes is to ensure "that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C.A. 1400(d)(1)(A). A child with a disability is defined by the statute as a child
(i) with mental retardation, hearing impairments (including deafness), speech or language impairments, visual impairments (including blindness), serious emotional disturbance, ... orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and
*18 (ii) who, by reason thereof, needs special education and related service.
[20 U.S.C.A. § 1401(3).]
The inapplicability of the IDEA to Luke is apparent, since his intellect is in no way impaired, and he has no need of special education or services related to his education, but only an accommodation of his diabetic condition that is medically necessary whether Luke is in school or not.
New Jersey had elected to participate in the IDEA program. Its implementing statutes and regulations provide further evidence of the inapplicability of the IDEA to Luke. See N.J.S.A. 18A:46-1 to -46; N.J.A.C. 6A:14-1.1 to -10.2. The New Jersey legislation defines handicapped children as
any child who is mentally retarded, visually handicapped, auditorily handicapped, communication handicapped, neurologically or perceptually impaired, orthopedically handicapped, chronically ill, emotionally disturbed, socially maladjusted, multiply handicapped, autistic, or pre-school handicapped.
[N.J.S.A. 18A:46-1.]
Luke fits within none of these categories.
The CLC argues that the IDEA as adopted in New Jersey is applicable and preempts this case because Luke needed the type of "related services" described in N.J.S.A. 18A:46-6. That provision requires in relevant part that
each board of education shall ... identify and ascertain, according to rules promulgated by the commissioner with the approval of the State board, those children between the ages of three and five years who require and who would be benefited by special education programs and services, which may prevent their handicaps from becoming more debilitating.
However, under the statutory definition Luke is not handicapped and, moreover, he is in no need of special education. Accordingly the IDEA and its New Jersey counterpart are simply irrelevant to this case. The similar conclusion of the motion judge is affirmed.
III.
As a final matter, we address Ellison's argument that the court erred in granting summary judgment on plaintiffs' claim of handicap discrimination under the NJLAD.[1] In doing so, we must view the facts presented in a light most favorable to plaintiffs, and we therefore assume that Luke's admission to the CLC was rescinded as the result of its unwillingness to accommodate his diabetic condition. Brill, supra, 142 N.J. at 540, 666 A.2d 146.
In granting summary judgment, the motion judge held on the basis of his interpretation of the NJLAD and implementing regulations that the requirement of reasonable accommodation was applicable only to employment cases. He found that in a case alleging discrimination in a public accommodation such as this, the only focus should be on whether the defendants acted with an actual or apparent design to discourage present or future use of the public accommodation by handicapped persons. See Franek v. Tomahawk Lake Resort, 333 N.J.Super. 206, 216, 754 A.2d 1237 (App. Div.) (utilizing that standard), certif. denied, 166 N.J. 606, 767 A.2d 484 (2000). Further, the judge rejected federal precedent regarding public accommodations decided pursuant to the Americans with Disabilities Act (ADA), 42 U.S.C.A. § 12182, *19 finding that statute to specifically prohibit a failure to make reasonable accommodations, whereas the NJLAD contained no such prohibition. The court then found that because the CLC had not discriminated against Luke upon initial admission, although it knew then of his diabetic condition, it could not be held liable when it later withdrew his acceptance when informed that a reasonable accommodation to his handicap was required.
We do not agree with the conclusion of the motion judge, finding that the law as implemented through administrative regulations is broader in scope than the motion judge recognized.
Subchapter 4 of the New Jersey Administrative Code, the subchapter addressing discrimination in places of public accommodation, is designed to
implement the provisions of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to 49, as it pertains to unlawful discrimination against people with disabilities by the owners, lessees, proprietors, managers, superintendents, agents or employees of any place of public accommodation.
[N.J.A.C. 13:13-4.1 ("Purpose").]
Under N.J.A.C. 13:13-4.11 ("Reasonable Accommodation"),
(a) An owner ... or employee of any place of public accommodation shall make such reasonable modifications in policies, practices, or procedures, as may be required to afford goods, services, facilities, privileges, advantages, or accommodations to a person with a disability, unless the owner ... or employee of the place of public accommodation demonstrates that making the modifications would impose an undue burden on its operation.
(b) In determining whether an accommodation is unreasonable because it will impose an undue burden on the operation of a place of public accommodation, factors to be considered include:
1. The overall size of the business which runs the place of public accommodation with respect to the number of employees, number and type of facilities, and size of the budget;
2. The nature and cost of accommodation sought; [and]
3. Whether the accommodation sought will result in a fundamental alteration to the goods, services, program or activity offered....
Nothing in the plain language of these regulations limits their applicability to any particular form of public accommodation or excludes their applicability to a pre-school such as the CLC. It does not comport with the statutory and judicial requirement that the NJLAD be construed broadly to restrict the requirement of reasonable accommodation exclusively to the employer/employee relationship. The motion judge's interpretation of Franek as compelling a different conclusion, we find, was mistaken. In Franek, the cause of action was based upon acts of the defendant that discouraged access to a public picnic area by handicapped persons such as the plaintiff's mother and upon statements that provided evidence of an intent to discriminate. We limited plaintiff's cause of action to fit these factual circumstances. 333 N.J.Super. at 215-16, 754 A.2d 1237. In the present case, the essence of plaintiffs' cause of action is a failure of reasonable accommodation by the CLC after it had admitted Luke for the 2002-2003 school term. We find no grounds to reject plaintiffs' claim simply because it does not resemble that in Franek. See Viscik v. Fowler Equip. Co., 173 N.J. 1, 19, 800 A.2d 826 (2002) (observing that reasonable accommodation is an issue in a handicap discrimination case when it is pled as *20 such); see also Borngesser v. Jersey Shore Med. Ctr., 340 N.J.Super. 369, 379-80, 774 A.2d 615 (App.Div.2001)(recognizing a cause of action for failure by a hospital to make reasonable accommodation for its patient's deafness).
Further, we disagree with the motion judge's conclusion that federal precedent construing the ADA cannot be utilized in this context because reasonable accommodation is statutorily required under federal law, whereas it is not specified by New Jersey law in this context. The same distinction exists with respect to statutory provisions governing discrimination in employment. Compare 42 U.S.C.A. § 12112(b)(5)(B) with N.J.S.A. 10:5-12a. Yet federal law has long provided guidance to our courts in this area. See, e.g., Viscik, supra, 173 N.J. at 13, 800 A.2d 826; Tynan v. Vicinage 13 of the Super.Ct. of N.J., 351 N.J.Super. 385, 396-97, 798 A.2d 648 (App.Div.2002) (noting that although the NJLAD does not specifically address reasonable accommodation for handicaps by employers, it is nonetheless required); Muller v. Exxon Research & Eng'g Co., 345 N.J.Super. 595, 606, 786 A.2d 143 (App.Div.2001); Seiden v. Marina Assocs., 315 N.J.Super. 451, 461 n. 1, 718 A.2d 1230 (Law Div.1998). As plaintiffs note, the requirement of reasonable accommodation was recognized by a court in imposing a preliminary injunction upon the dismissal of a child from private school for poor performance in the analogous context of a student with alleged attention deficit hyperactivity disorder. See Axelrod v. Phillips Academy, 36 F.Supp.2d 46, 50 (D.Mass.), vacated, injunction denied on other gr., 46 F.Supp.2d 72 (D.Mass.1999).
Nor do we find it dispositive that existing regulations regarding accommodations focus on structural modifications to increase accessibility and auxiliary aids and services such as interpreters, note-takers, special examination conditions and the like. N.J.A.C. 13:13-4.11 broadly requires reasonable modification in "policies, practices, or procedures" in this context. In light of the purpose of the NJLAD to ensure the absence of discrimination against persons with disabilities by places of public accommodation, we cannot find that a reasonable accommodation by a school for a medical condition such as diabetes falls outside the statute's purview simply because it is not a specific topic of an existing regulation.
We note, however, that the NJLAD requires only that "reasonable" accommodation be made for Luke's diabetic condition. After a careful review of the record in this case, we are unable to determine as a matter of law whether the CLC and its employees breached this statutory duty or even whether they in fact declined to undergo the training necessary to calibrate Luke's insulin pump and to program the delivery of insulin to him, finding that the issue must be resolved by a jury after a full exposition of the facts at trial. See, e.g., Chisolm v. McManimon, 275 F.3d 315, 329-30 (3d Cir.2001).
In this connection, we note the potential applicability as a defense of N.J.A.C. 13:13-4.8, governing conduct toward the handicapped when there is a reasonable probability of serious harm. We also note as factors relevant to the jury's consideration of the "reasonableness" of the CLC's position, in addition to the factors enumerated in N.J.A.C. 13:13-4.11(b), such matters as the timing of Ellison's meeting with school employees in relationship to the start of the school year; the lack of medically trained personnel on CLC's staff; the recommendation that teachers obtain their training in the use of the pump from a medical professional before Luke's care could be entrusted to them; the ease or difficulty of calibrating the pump; the need for such calibration during the hours *21 that Luke was scheduled to attend the CLC; and the practices of other comparable pre-schools in the area with respect to the accommodation of children with Type I diabetes who utilized insulin pumps.
We therefore reverse the summary judgment entered against plaintiffs and remand the matter for trial, at which time a jury can resolve the factual issues that surround the events of September 5, 2002 and determine whether a violation of the NJLAD on the part of the CLC and Pauska has occurred.
Reversed and remanded for trial.
NOTES
[1] That Luke qualifies as handicapped under N.J.S.A. 10:5-5q and that the right to be free from discrimination set forth in the NJLAD applies to handicapped persons under N.J.S.A. 10:5-4 has not been contested. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263334/ | 31 Cal.App.4th 545 (1995)
37 Cal. Rptr.2d 472
McMILLIN-BCED/MIRAMAR RANCH NORTH, Plaintiff and Appellant,
v.
COUNTY OF SAN DIEGO, Defendant and Respondent.
Docket No. D020491.
Court of Appeals of California, Fourth District, Division One.
January 12, 1995.
*549 COUNSEL
Weil & Wright and Archie T. Wright III for Plaintiff and Appellant.
Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, and Andrew J. Freeman, Deputy County Counsel, for Defendant and Respondent.
OPINION
HUFFMAN, J.
Plaintiff McMillin-BCED/Miramar Ranch North (McMillin-BCED), a California general partnership, appeals the judgment of the superior court in favor of the County of San Diego (the County), defendant and respondent, in McMillin-BCED's action for refund of property taxes. *550 (Rev. & Tax. Code,[1] §§ 51, 5097, 5149.) Pursuant to California Constitution, article XIII A, section 2 (article XIII A) and section 60 et seq., the County tax assessor reassessed land owned by the partnership on the lien date of March 1, 1991, on the basis that a 100 percent change of ownership had occurred on February 12, 1990. The assessor applied the step transaction doctrine (sometimes called the doctrine) to view several discrete business and real property transfers in 1990 as one taxable transaction accomplishing a change of ownership of the subject 1,200 acres of property.
On appeal, McMillin-BCED contends the trial court erred in applying the step transaction doctrine, because there was an inadequate showing that both of the partners in the McMillin-BCED partnership had the intention throughout the various steps involved in the transactions to reach the same end result, that a different corporation would be the partial new owner of the partnership which owned the property. McMillin-BCED also contends the trial court improperly found that the close proximity in time of some of the steps in the transactions justified application of the doctrine, and improperly extended the accepted tests for the application of such doctrine as created by case law. (Shuwa Investments Corp. v. County of Los Angeles (Shuwa) (1991) 1 Cal. App.4th 1635, 1648-1657 [2 Cal. Rptr.2d 783].)
In response, the County argues that when the transactions are viewed as a whole, they in effect constituted a 100 percent change in ownership because there was a transfer of ownership of land from a corporation to a partnership consisting of different corporations. We agree with the County that under the step transaction doctrine, the separate transfers must be treated as a single transaction for tax purposes, and the trial court therefore was correct in concluding that a 100 percent reassessment was proper and no tax refund was due. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties do not dispute the facts of the various transactions in this case, only the legal conclusions to be drawn from them. The players are as follows: BCE Development, Inc. (Development) is the parent corporation of a wholly owned subsidiary, BCE Development Properties, Inc. (Properties). Development and Properties were affiliates for tax purposes for this reason. On May 5, 1989, Properties agreed to sell the subject 1,200 acres of land for $100 million to McMillin/Scripps Ranch (Buyer), a California limited partnership, acting by its sole general partner, McMillin Communities, Inc. (McMillin), a California corporation. Properties was to have obtained title to *551 the land from Development, then the owner, before the sale went through. This agreement fell through because Buyer could not obtain the necessary financing and did not want to incur any liabilities arising from predevelopment activities on the land.
Development then decided to develop the land with the assistance of an experienced residential developer. The following transactions ensued: As of January 26, 1990, title to the land was still held by Development. On that date, Development and Properties formed (but did not fund) a general partnership called Scripps Ranch. The partnership agreement required Development to contribute 30 percent tenancy-in-common interest in the land and Properties to contribute 70 percent tenancy-in-common interest in the land to the newly formed partnership, as initial capital contributions. Profits and losses were to be shared in the same proportions. Four days later, Development conveyed a 70 percent tenancy-in-common interest in the land to Properties. For purposes of discussion, we shall refer to the tenancy-in-common transfer between Development and Properties as Step 1.[2]
On February 7, 1990, Development and Properties, as tenants-in-common, refinanced the land for $50 million. They executed a promissory note and deeds of trust in favor of their lender, Mortgage Development Corporation (MDC), which was, like Development, a wholly owned subsidiary of BCE Canada. MDC immediately assigned the note to yet another wholly owned subsidiary of BCE Canada, BCED Pacific, Inc. In a declaration prepared by Jeffrey H. Wagner, the director of taxation of the BCED corporations, submitted in support of the McMillin-BCED opening trial brief, the purpose for this loan was explained: "(a) to strengthen and improve [Development's] interest in the Land by becoming a secured lender and (b) to reduce the amount of equity in the Land a future developer/investor would be required to `buy into.'" We shall refer to this transaction, the refinancing of the land by Development and Properties as tenants-in-common, as Step 2.
Step 3 also took place on February 7, 1990, when Development and Properties deeded their respective interests in the land to the Scripps Ranch partnership, as required by the partnership agreement. In other words, they exchanged their 30-70 percent interests in the land for general partnership interests which would own the land. This structure would provide flexibility to negotiate a particular financial deal with a developer. The Scripps Ranch partnership assumed the loan on a nonrecourse basis.
*552 Development then carried out negotiations with McMillin, as well as a competing developer, Davidson Communities, Inc. (Davidson), to establish terms for a partnership agreement. On February 9, 1990, the Scripps Ranch partnership and McMillin entered into a contribution agreement establishing the terms and conditions for McMillin's admission as a partner and Development's withdrawal from the partnership. Development agreed to guarantee the performance of all of Properties' present and future obligations to McMillin under the partnership agreement. McMillin agreed to contribute $5 million cash to the partnership. Properties' capital account was valued at $30 million. Development assigned its 30 percent partnership interest to, and withdrew from, the partnership.
The effective date of the first amended and restated agreement of general partnership was February 12, 1990. Step 4 thus took place when McMillin bought into the appellant partnership. Two days later, the partnership name was changed from Scripps Ranch to McMillin-BCED. Pursuant to this agreement, McMillin now held a 14 percent interest in the capital of the partnership, a 30 percent interest in the profits, and a 50 percent management interest.
On March 1, 1991, the assessment date next occurring after these transactions took place, the county assessor reassessed the land, claiming that a 100 percent change in ownership had occurred on February 12, 1990. McMillin-BCED appealed this decision to the County Assessment Appeals Board, No. 2 (the board), which denied the application for a reduction of property taxes after an administrative hearing. McMillin-BCED then filed its complaint for refund of property taxes and a court trial was held in which opposing declarations and the administrative record were admitted into evidence. McMillin-BCED set forth its asserted business reasons for the various steps, including the use by Development of certain net operating losses of Properties for income tax purposes after the transfer of the tenancy-in-common interests.
The board's decision was upheld and judgment entered for the County. The trial court analyzed the timing and the nature of the transactions, the evidence of the desire to develop the land, and the end result in order to conclude that a 100 percent change of ownership had taken place under the step transaction doctrine. The court reasoned:
"All of the actual steps occurred within a two-week period. Each of the steps can logically be traced to Development's intention from the outset to reach the ultimate result of having an unaffiliated developer with an ownership interest in place to develop the land.
*553 "There seems to be clear interdependence within the steps. Objectively, one can reasonably interpret the transfers to affiliates, the loan to reduce the equity to make the capital contribution of an incoming partner more reasonable, the assumption of the indebtedness and the transfer of ownership to McMillin as interdependent steps to a planned conclusion. Objectively, it seems clear the creation of the co-tenancy was to facilitate the sale to McMillin. Knowing the objective of the various transactions, it appears that Development and Properties were committed to the end result of developing the land in a partnership with an unaffiliated developer."
The court thus concluded that all three tests established for application of the step transaction doctrine, the "end result test," the "interdependence test," and the "binding commitment test" were all met, and thus a 100 percent change of ownership was found. McMillin-BCED timely appealed the judgment.
DISCUSSION
Was there a change in ownership of the property under these facts? "Article XIII A of the California Constitution (Proposition 13) provides that real property shall be reassessed for property tax purposes when a `change in ownership' occurs or the property is `newly constructed' or `purchased.' [Citations.] The Supreme Court in Amador Valley Joint Union High School Dist. v. State Board of Equalization (1978) 22 Cal.3d 208, 245 [149 Cal. Rptr. 239, 583 P.2d 1281], determined the meaning of `change of ownership' was left for resolution `by the contemporaneous construction of the Legislature or of the administrative agencies charged with implementing the new enactment.' [Citations.]" (Shuwa, supra, 1 Cal. App.4th at p. 1645.) Section 60 defines a change in ownership as "a transfer of a present interest in real property, including the beneficial use thereof, the value of which is substantially equal to the value of the fee interest."
I
Standard of Review
(1) "It is well settled that the interpretation and application of a statutory scheme to an undisputed set of facts is a question of law [citation] which is subject to de novo review on appeal. [Citation.] Accordingly, we are not bound by the trial court's interpretation. [Citation.]" (Rudd v. California Casualty Gen. Ins. Co. (1990) 219 Cal. App.3d 948, 951-952 [268 Cal. Rptr. 624].) An appellate court is free to draw its own conclusions of law from the undisputed facts presented on appeal. (Pueblos Del Rio South v. City of San Diego (1989) 209 Cal. App.3d 893, 899 [257 Cal. Rptr. 578].)
*554 In Shuwa, supra, 1 Cal. App.4th at page 1644, the court stated the standard of review simply: "What constitutes a `change in ownership' is a question of law subject to this court's independent de novo judicial review. [Citation.]" (2) It occurs to us, however, that the application of the step transaction doctrine requires an analyis of the parties' purposes and intents in carrying out the various steps in the transaction. (Id. at pp. 1648-1657.) Such issues as intent and purpose are customarily viewed as factual issues. (3) Even though there was essentially no factual dispute in this case, we find the Supreme Court's analysis of mixed questions of law and fact to be of assistance here: "Questions of fact concern the establishment of historical or physical facts; their resolution is reviewed under the substantial-evidence test. Questions of law relate to the selection of a rule; their resolution is reviewed independently. Mixed questions of law and fact concern the application of the rule to the facts and the consequent determination whether the rule is satisfied. If the pertinent inquiry requires application of experience with human affairs, the question is predominantly factual and its determination is reviewed under the substantial-evidence test. If, by contrast, the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently. [Citation.]" (20th Century Ins. Co. v. Garamendi (1994) 8 Cal.4th 216, 271 [32 Cal. Rptr.2d 807, 878 P.2d 566].)
Here, as in 20th Century Ins. Co. v. Garamendi, supra, 8 Cal.4th 216, the decision of the superior court amounts to the resolution of a number of questions of law and mixed questions of law and fact that were predominantly legal in nature, rather than factual. Any factual issues raised by the declarations presented below are subordinate to the overall legal questions presented by the statutory interpretation question. We emphasize this point at some length due to our concern that there is an anomaly in the use of a pure de novo standard in this particular area of tax law. However, this de novo standard of review is well enough established for us to proceed to determine the issue anew.
II
Step Transaction Doctrine
In Shuwa, supra, 1 Cal. App.4th at pages 1648 through 1657, the court set forth the history of the step transaction doctrine as a "corollary of the general tax principle the incidence of taxation depends upon the substance of a transaction rather than its form. [Citation.]" (Id. at p. 1648.) (4) Three *555 basic tests have been developed for application of the step doctrine: (1) the "end result test," in which purportedly separate transactions "will be amalgamated with a single transaction when it appears that they were really component parts of a single transaction intended from the outset to be taken for the purpose of reaching the ultimate result ... [citations]" (id. at p. 1650); (2) the "interdependence test," requiring an evaluation of "`whether on a reasonable interpretation of objective facts the steps [are] so interdependent that the legal relations created by one transaction would have been fruitless without a completion of the series ...' [citations]" (id. at p. 1651) (in other words, the analysis is of the relationship between the steps and asks whether one step would have been taken without any of the others (id. at p. 1652)); and (3) the "binding commitment test," requiring that if one transaction is characterized as a first step, there must be a binding commitment to take later steps. (Id. at pp. 1650-1653.) The court in Shuwa applied all three of the tests and found they were all satisfied by those facts. The court did not comment on whether the use of the tests may be made in the alternative and whether satisfaction of less than all tests is enough to find a step transaction exists.
In King Enterprises, Inc. v. United States (1969) 418 F.2d 511, 517 [189 Ct.Cl. 466], the court explained that although there are real differences between the step transaction tests, "... each is faithful to the central purpose of the step transaction doctrine; that is, to assure that tax consequences turn on the substance of a transaction other than on its form."
In Associated Wholesale Grocers, Inc. v. U.S. (10th Cir.1991) 927 F.2d 1517, 1522-1529, the court of appeals found that satisfaction of one of the tests, in that case, the interdependence test, was adequate for application of the step transaction doctrine. The court first found the binding commitment test to be inapplicable where the case does not involve a series of transactions spanning several years. (Id. at pp. 1522-1523, fn. 6.) The court then noted that the district court had declined to apply the end result test, and concurred with that approach. In discussing the remaining interdependence test, the court first rejected the taxpayer's claim that its valid business reasons for the steps taken should render inapplicable the step transaction doctrine. Noting that the law is unclear as to the relationship of the doctrine and the business purpose requirement, the court rejected the argument that a valid business purpose could bar application of the doctrine in that context. (Id. at pp. 1526-1527.) However, the existence of a business purpose has been considered to be one factor in determining the relationship of form and substance in a transaction; other cases have found a lack of business purpose to justify application of the doctrine. The court concluded that the substance *556 of the particular transaction justified treating the steps as related for tax purposes. (Id. at p. 1529.)
The administrative record before the trial court in this case contains an opinion letter to county assessors from the State Board of Equalization (SBE) explaining the impact of the Shuwa case on step transaction doctrine as interpreted by the SBE. The opinion letter notes that the court in Shuwa applied all three tests in making its determination, but did not make clear whether the step transaction doctrine may be applied if less than all three tests are satisfied. The letter states, "The only indication of the court's thinking on this issue seems to be the reference to an authority suggesting that different tests are applicable in different contexts. This suggests that not all of the three tests need to be applied in each case in order to establish a basis for the step transactions doctrine." The letter goes on to state the SBE's position as follows: "It is the position of [SBE], therefore, that future step transaction decisions should be made by assessors based upon all of the facts of each transaction. If those facts demonstrate that in substance a change in ownership occurred, then the transaction should be treated accordingly. The existence of independent business purposes for the various steps will not prevent the application of the step transaction doctrine. Finally, the assessor may be aided in determining what the true substance of the transaction was by applying the (1) end result test, (2) interdependence test, and/or (3) binding commitment test, as set forth in the Shuwa decision."[3]
For all of these reasons, we conclude that the step transaction doctrine may be applied upon an adequate showing that one or more of the applicable tests is satisfied by the facts presented. We also conclude that the "independent business reason" argument is essentially a defense against the application of the tests, but is only one of many factors to be considered in assessing whether the form of a transaction coincides with its substance. (See Associated Wholesale Grocers, Inc. v. U.S., supra, 927 F.2d at p. 1526; Shuwa, supra, 1 Cal. App.4th at pp. 1653-1657.)
III
Contentions on Appeal
The County has contended all along that, based on the step transaction doctrine, this case falls under section 61, subd. (i), providing: "Except as *557 otherwise provided in section 62, change in ownership, as defined in section 60, includes, but is not limited to: (i) The transfer of any interest in real property between a corporation, partnership, or other legal entity and a shareholder, partner, or any other person."[4]
In response, McMillin-BCED first argues that each of the four steps in this case falls under its own exemption from reassessment. Specifically, Step 1, the transfer of a 70 percent tenancy-in-common interest from Development to Properties is said to be exempt under section 64, subdivision (b) (referring to transfer of real property among members of an affiliated group), and a related regulation, title 18 California Code of Regulations, former section 462, subdivision (j)(2)(A).[5] Regarding Step 2, McMillin-BCED argues that when Development and Properties refinanced the land as tenants-in-common, that transaction was exempt from reassessment under section 62, subdivision (c) (creation of a security interest does not constitute a transfer of ownership), and California Code of Regulations section 462.200, subdivision (a). Regarding Step 3, the exchange of the tenancy-in-common interests for general partnership interests in Scripps Ranch, McMillin-BCED argues that the transaction was exempt from reassessment under section 62, subdivision (a)(2) (referring to transfers among legal entities which change the method of holding title, although in the same proportional interests, as not accomplishing a change in ownership of the land), and California Code of Regulations section 462.020, subdivision (b). Finally, as to Step 4, in which McMillin bought into the Scripps Ranch partnership, which was then restructured, McMillin-BCED argues that the transaction was exempt from reassessment under section 64, subdivisions (a) and (c) (referring to the statutory "non-controlling partnership interest exemption" where a transfer of a noncontrolling ownership interest in a legal entity does not equate to transfer of real property owned by the entities) and California Code of Regulations section 462.180, subdivisions (b)-(d).
McMillin-BCED then argues that the trial court erred in applying the step transaction doctrine to view all of these steps as an interrelated whole *558 because it should not have found that a unilateral intention of Development and/or Properties to seek an end result was an adequate showing under the end result test, without a showing that McMillin also had such an intent or purpose. McMillin-BCED then argues that the trial court erroneously added a new test to the existing tests, that the proximity in time of the various steps gave weight to the argument that they were interrelated so as to constitute a change in ownership. McMillin-BCED further argues that the substance of this transaction, regardless of the form, showed no change in ownership because Development, as the parent corporation of its wholly owned subsidiary Properties, always controlled the land as well as the partnership that later owned the land, and the third party, McMillin, acquired only a noncontrolling and minority partnership interest.
Finally, McMillin-BCED contends that since it had a legitimate business purpose for each of the steps, the step transaction doctrine should not be applied to allow reassessment of the property.
IV
Analysis
(5) In analyzing this series of transactions, our inquiry is whether the tests that have been established for the step transaction doctrine require the transaction to be treated as a whole, "or whether each step of the transaction may stand alone." (Shuwa, supra, 1 Cal. App.4th at p. 1648.) As suggested by the SBE in its opinion letter, all the facts of each transaction must be taken into account to determine whether, in substance, a change in ownership occurred. Moreover, the existence of an independent business purpose for each of the various steps, while of significance, does not prevent the application of the step transaction doctrine. (See Associated Wholesale Grocers, Inc. v. U.S., supra, 927 F.2d at pp. 1526-1527.) Even if only one or two of the relevant tests is satisfied, a step transaction finding may be made for reassessment purposes. And, even where each step may have been made according to a particular exemption from reassessment, the series of steps may be amalgamated and viewed in their entirety if such is necessary to comply with the spirit, rather than the letter, of the change in ownership rules under article XIII A. (Shuwa, supra, at p. 1648.)
A
Timing
(6a) At the outset, we dispose of McMillin-BCED's argument that the trial court effectively created a new test when considering the timing of the *559 various steps in its analysis of the step transaction doctrine. Timing is a valid fact and circumstance to be considered in analyzing the entire set of circumstances. (Crow Winthrop Operating Partnership v. County of Orange (1992) 10 Cal. App.4th 1848, 1855-1856 [13 Cal. Rptr.2d 696]; Associated Wholesale Grocers, Inc. v. U.S., supra, 927 F.2d at p. 1528.) Although McMillin-BCED argues that reassessment would have been doubtful if it had waited around two years after Steps 1 through 3 to purchase its partnership interest, those were not the facts before the trial court. Such speculation is not of assistance here.
B
End Result and Binding Commitment Tests
(7) McMillin-BCED is more persuasive when it argues that the record does not contain evidence supporting a showing that McMillin, the third party who joined the partnership in Step 4, had the same purpose and intent as did Development and Properties in Steps 1 through 3, which dealt with changing the ownership and method of holding title of the land among those affiliated parties. The end result test and the binding commitment test both appear to require the same parties to have been pursuing a related intent throughout the steps of the transaction. (See Shuwa, supra, 1 Cal. App.4th at pp. 1651-1653.) Apart from inferences which may be drawn from the fact that McMillin once tried to buy the land outright from Development and Properties, there is no factual showing that McMillin participated in or encouraged the activities that Development and Properties went through in Steps 1 through 3.
Moreover, the evidence of an independent business purpose asserted for Steps 1 through 3 raises inferences that there was some legitimate separation between Steps 1 and 3 and Step 4. Specifically, more than one developer was competing to become a candidate to enter into the Scripps Ranch partnership; Davidson was a candidate as well as McMillin. Development and Properties made a showing that they had legitimate income tax reduction purposes (use of Properties' net operating losses) for transferring the tenancy-in-common interests in the property in Step 1. Step 2 had an independent purpose, converting equity to debt in order to realize profit on the land investment and reduce the amount of capital a land developer would have to raise to participate in the land development. Similarly, Step 3, in which the partnership was funded with the land interests, could be seen as preparation for any future development project, in which McMillin might or might not be a participant. Unlike in Shuwa, supra, 1 Cal. App.4th 1635 and Crow *560 Winthrop, supra, 10 Cal. App.4th 1848, there was no clear showing here that all parties were bound to all steps of the multistep plans.
Moreover, the binding commitment test appears to require a sequence of events stretching over a long period of time, perhaps several years, and those facts are not present here. (See Associated Wholesale Grocers, Inc. v. U.S., supra, 927 F.2d at pp. 1522-1523, fn. 6.) For these reasons, we do not find the application of the end result test or the binding commitment test to result in a conclusive finding that the step transaction doctrine may be applied here.
C
Interdependence Test
(6b) The above conclusions do not end the inquiry. The interdependence test analyzes the relationship between the steps, as opposed to their ultimate result. (Associated Wholesale Grocers, Inc. v. U.S., supra, 917 F.2d at p. 1527.) In applying the interdependence test, the court evaluates "`whether on a reasonable interpretation of objective facts the steps [are] so interdependent that the legal relations created by one transaction would have been fruitless without the completion of the series.' [Citations.]" (Shuwa, supra, 1 Cal. App.4th at pp. 1651-1652.) Several factors persuade us that the interdependence test is satisfied here, and that the trial court correctly ruled in favor of the County and against McMillin-BCED's request for property tax refunds. All of these steps were related toward accomplishing the purpose of developing the land by an experienced developer, with Development and Properties to have dominant capital- and profit-sharing roles, but an equal management role with the actual developer.
The trial court pointed out at trial that it was significant that in a series of transactions closely related in time, McMillin as an outsider came in to assume all of the entitlement of one of the partners, at specified percentages of capital and profit. The profit was directly related to the percentage of ownership of the third party's predecessor, Development. The way in which this was accomplished was that Development assigned its percentage interest to the partnership, and McMillin then made a $5 million capital contribution and obtained a 14 percent capital interest in the partnership, along with a 30 percent profit interest and a 50 percent management interest. The history of this transaction includes the failed sale to McMillin at an earlier time. A reasonable inference may be drawn that McMillin's goals would not have been accomplished as a developer without the transfer of title from Development, through Properties, to the Scripps Ranch partnership, and ultimately *561 to the appellant McMillin-BCED partnership. Even if Development and Properties had internal corporate reasons as affiliates to transfer title among themselves, refinance the property, and create a development partnership, those steps would essentially have been fruitless had they not been able to find a developer to join in the project. These steps had the necessary interdependence such that, in substance, a change of ownership occurred.
D
Other Arguments
(8) McMillin-BCED next claims that as guarantor of Properties' performance, Development somehow remains in control of the land and the partnership, even after it withdrew from the partnership. To state the argument is to demonstrate its absurdity. Development and Properties had significant income tax reasons to treat each other as separate corporations, in order that Development could take advantage of Properties' net operating losses for income tax purposes. They should not now be heard to claim that merely because Properties is a wholly owned subsidiary of Development, it has no independent existence and is identical in interest with Development for these purposes. (See discussion in Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 96 [255 Cal. Rptr. 670, 767 P.2d 1148] of change in control of property as equivalent to change in ownership under § 64, subd. (c), defining change in ownership of property owned by corporations; also see Shuwa, supra, 1 Cal. App.4th at p. 1643, fn. 8.) Development's position as a guarantor was created by separate agreement and does not operate in its favor for purposes of determining whether a change in ownership occurred.
Finally, McMillin-BCED defends the various transfers as being geared toward protecting McMillin from incurring liability for predevelopment actions through an outright purchase of the property. Whatever the parties' intentions were to limit McMillin's potential liability as a partner, it should not be assumed that because the transaction was structured in this way, it accomplished only that goal. As pointed out in Shuwa, supra, 1 Cal. App.4th 1635, a buyer's desire to limit potential liability from the purchase of partnership interests does not mandate any particular type of transaction to accomplish such an end, as several alternative measures are available to avoid potential partnership liability. (Id. at pp. 1656-1657.) We should not view the parties' efforts to shield McMillin from liability for predevelopment activities as also guaranteeing the avoidance of property tax consequences, such as reassessment.
*562 V
Conclusion
(6c) Because of the close relationship of the various steps in this case and because each of these steps, even though having some legitimate business purpose, would have been essentially fruitless had not the ultimate goal been achieved of bringing in an experienced developer to assist in the development of the property, we conclude the interdependence test for application of the step transaction doctrine is satisfied here. The goals of both Development and Properties, as well as McMillin, would not have been accomplished without transfer of title of the property in the manner in which it occurred. The trial court was justified in taking into account the timing and nature of the transactions, as well as the desire to develop the property, as factors supporting application of the step transaction doctrine. An adequate basis exists in the record to justify application of the doctrine in this manner. It is appropriate to affirm the judgment, where correct, regardless of the theories used by the trial court. (Schultz v. County of Contra Costa (1984) 157 Cal. App.3d 242, 248 [203 Cal. Rptr. 760].)[6]
DISPOSITION
The judgment is affirmed.
Benke, Acting P.J., and Nares, J., concurred.
A petition for a rehearing was denied February 6, 1995, and the opinion was modified to read as printed above. Appellant's petition for review by the Supreme Court was denied March 30, 1995.
*563
NOTES
[1] All statutory references are to the Revenue and Taxation Code unless otherwise specified.
[2] For whatever assistance it may provide, we attach as appendix A a diagram of the transactions found in the administrative record as part of McMillin-BCED's assessment appeal application.
[3] Administrative construction of enactments may be relied on by courts to resolve ambiguities and to assist in interpretation of regulations. "When construing article XIII A, courts accord legislative and administrative implementations great weight. [Citations.]" (Industrial Indemnity Co. v. City and County of San Francisco (1990) 218 Cal. App.3d 999, 1009 [267 Cal. Rptr. 445].)
[4] "The basic definition of section 60 is intended as a guidepost in cases not covered by the specific inclusions or exclusions of other taxation statutes or article XIII A itself. [Citations.]" (Industrial Indemnity Co. v. City and County of San Francisco, supra, 218 Cal. App.3d at p. 1010.)
[5] All references in this opinion to rules will be to those found in title 18 California Code of Regulations, section 462 et seq. Since the time of trial, those rules have been changed, without regulatory effect, to renumber former sections 462, subdivisions (a) through (h), and subdivisions (j) through (n) to new sections 462.001 through 462.260. (See history note in § 462.) The text of former section 462, subdivision (j)(2)(A) is now found in section 462.180, subdivision (b). We use the current numbering system in discussing McMillin-BCED's arguments here.
[6] Because of our conclusions in this respect, we need not discuss McMillin-BCED's contentions concerning an attorney fees award. (§§ 538, 5152.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263339/ | 31 Cal.App.4th 1041 (1995)
37 Cal. Rptr.2d 498
THE PEOPLE, Plaintiff and Respondent,
v.
ALBERT K. JOHNSON, Defendant and Appellant.
Docket No. A063913.
Court of Appeals of California, First District, Division Four.
January 23, 1995.
*1043 COUNSEL
Matthew H. Wilson, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Gerald A. Engler and John H. Deist, Deputy Attorneys General, and Sharmin C. Eshraghi, Acting Deputy Attorney General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
REARDON, J.
Defendant and appellant Albert K. Johnson (appellant) was charged in an indictment with three counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)),[1] three counts of forcible penetration by a foreign object (§ 289, subd. (a)), one count of rape (§ 261, subd. (a)(2)) and one count of second degree robbery (§§ 211, 212.5, subd. (b)). The indictment also alleged the enhancement of kidnapping to commit sexual offenses. (§ 667.8, subd. (a).) One charge of forcible penetration was dismissed after the jury was unable to reach agreement on it and the jury found appellant guilty of the other charges and allegation. The trial court sentenced appellant to state prison for 24 years to be served consecutively to a 15-year prison term in another case.
Appellant contends that the three-year enhancement for kidnapping to commit sexual offenses was wrongly imposed because: (1) appellant was not charged or convicted of kidnapping; and (2) the instructions were erroneous. Supplemental briefs filed by appellant in propria persona contend that he was not provided effective assistance of counsel.
I. FACTS OF THE OFFENSES
Johanna V. testified as follows: On December 8, 1991, at 9:30 a.m. while she was jogging at the Richmond High School track, she noticed a man sitting in the bleachers. After Johanna jogged around the track four times, *1044 the man approached her and threatened to shoot if she did not stop jogging. In court, Johanna identified the man as appellant. Appellant forced Johanna to walk with him to a "small building in a tract." At, or behind, the building, appellant perpetrated on Johanna all the sex acts of which he was convicted along with the robbery.
Police Officer Joseph Curtin testified that Johanna selected appellant's photograph from a photographic lineup. When the officer informed appellant that he had been identified by Johanna, appellant stated, "`sometimes girls just say you rape them 'cause they're mad at you.'" In response to the officer's question, did Johanna have reason to be angry with him, appellant answered, "`no, but it happens.'" Appellant was also asked if he had any indication why Johanna might identify him if what he was saying was true. He responded, "`that's just something I'm going to have to deal with I'm going to have to deal with period. I might just have to do my time.'"
Appellant's trial counsel presented a defense of misidentification and alibi through cross-examination and defense witnesses. Further facts relating to the defense and counsel's conduct are stated in an unpublished portion of the opinion.
II. KIDNAP ENHANCEMENT
(1a) Appellant contends that the finding he kidnapped the victim to commit sexual offenses, under section 667.8, subdivision (a), was improper because he "was neither charged nor convicted of the underlying offense of kidnapping." This contention lacks merit.
Section 667.8, subdivision (a) provides in pertinent part: "... [A]ny person convicted of a felony violation of Section 261, 264.1, 286, 288a, or 289 who, for the purpose of committing that sexual offense, kidnapped the victim in violation of Section 207, shall be punished by an additional term of three years." Section 1170.1, subdivision (f) provides: "The enhancements provided in Sections ... 667.8 ... shall be pleaded and proven as provided by law."
It is undisputed that appellant was neither charged nor convicted of the offense of kidnapping in violation of section 207. The enhancement was alleged and found true that appellant violated section 667.8. The jury was instructed as to kidnapping for the purpose of committing sexual offenses in language which included a definition of kidnapping in violation of section 207.
In order to determine whether the clause in section 667.8 which mentions section 207 requires a conviction under the latter section, we look to the *1045 rules governing interpretation of a criminal statute. Section 4 provides: "The rule of the common law, that penal statutes are to be strictly construed, has no application to this Code. All its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice." (2) If ambiguous, criminal statutes are to be construed in favor of the defendant. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631 [87 Cal. Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420]; People v. Ralph (1944) 24 Cal.2d 575, 581 [150 P.2d 401].) "In understanding the meaning and scope of a criminal statute, we are guided by the evil the Legislature sought to avert and the method chosen to do so." (People v. Berry (1991) 1 Cal. App.4th 778, 783 [2 Cal. Rptr.2d 416].) When the Legislature eliminates language imposing a required act from a proposed statute before passing the final version, it indicates that it did not intend to include that requirement as part of the statute. (See Seibert v. Sears, Roebuck & Co. (1975) 45 Cal. App.3d 1, 19 [120 Cal. Rptr. 233].)
These precepts were applied in People v. Hernandez (1988) 46 Cal.3d 194 [249 Cal. Rptr. 850, 757 P.2d 1013], where the question before the Supreme Court was whether the additional term under section 667.8 was properly imposed when the defendant was charged and convicted of sex offenses and kidnapping, but violation of section 667.8 was not charged or placed before the jury. (46 Cal.3d at p. 199.) In essence, that question is the opposite side of the one posed herein, i.e., whether a defendant must be charged and convicted of violating section 207 before the additional term can be imposed. The Supreme Court held that the additional term was not properly imposed because section 667.8 defined an "enhancement" which must be separately pleaded, placed before the jury under proper instructions, and proved by substantial evidence. Section 667.8 did not define a "substantive offense" which is covered by a verdict of guilty of kidnapping under section 207. (46 Cal.3d at pp. 201-211.) In reaching this conclusion the Supreme Court specifically points out that earlier versions of section 667.8, which were not enacted, included a requirement that the defendant be convicted of "`kidnapping as defined in section 207 or an attempt to kidnap'"; but the version which became law did not. (46 Cal.3d at pp. 202-203.)
(1b) We conclude that the high court's reasoning in People v. Hernandez also resolves the question in the instant case. Section 667.8 defines a unique category of criminal violation, an "enhancement," which is completely separate and distinct from the substantive offenses of kidnapping and sex crimes. Thus, the jury was not required to convict appellant of kidnapping in violation of section 207 in order to find that he violated section 667.8. The kidnapping aspect of section 667.8 is encompassed by the jury's verdict on the enhancement. Moreover, the Legislature has unambiguously expressed *1046 its chosen method of providing for the additional term by eliminating any language requiring a separate conviction of a violation of section 207.
III. INSTRUCTION
(3a) Appellant also contends that the trial court erred in instructing the jury on the asportation standard for kidnapping. Specifically, appellant urges that the section 667.8 enhancement requires the asportation associated with "aggravated kidnapping," i.e., that the movement substantially increase the risk of harm over and above that necessarily present in the commission of the charged sex offense. (Cf. People v. Daniels (1969) 71 Cal.2d 1119, 1139 [80 Cal. Rptr. 897, 459 P.2d 225, 43 A.L.R.3d 677].) In the instant case, the trial court instructed the jury on the asportation required for "simple kidnapping," i.e., that the movement be "for a substantial distance, that is, a distance more than slight or trivial...." (CALJIC No. 9.50; see People v. Stanworth (1974) 11 Cal.3d 588, 598 [114 Cal. Rptr. 250, 522 P.2d 1058]; see also § 207.) We conclude that there was no instructional error.
When section 667.8 was enacted in 1983 (Stats. 1983, ch. 950, § 1, pp. 3418-3419), and now, the asportation required for a "violation of section 207" is that the victim be moved a substantial distance. There was, and is, no requirement for a "violation of section 207" that the movement increase the risk of harm. (See People v. Daniels, supra, 71 Cal.2d at p. 1139.) (4) "The Legislature, of course, is deemed to be aware of statutes and judicial decisions already in existence, and to have enacted or amended a statute in light thereof. [Citation.] Where a statute is framed in language of an earlier enactment on the same or an analogous subject, and that enactment has been judicially construed, the Legislature is presumed to have adopted that construction. [Citation.]" (People v. Harrison (1989) 48 Cal.3d 321, 329 [256 Cal. Rptr. 401, 768 P.2d 1078].)
(3b) By expressly providing that the kidnapping component in section 667.8 be a kidnapping "in violation of section 207," we must conclude that the Legislature intended to prescribe simple kidnapping and the type of asportation associated therewith. Our conclusion is buttressed by People v. White (1987) 188 Cal. App.3d 1128 [233 Cal. Rptr. 772], where the court approved that portion of an instruction defining asportation for purposes of section 667.8 as movement "for a substantial distance." (Id. at p. 1138.)
After the briefs were filed in this case, our Supreme Court decided People v. Rayford (1994) 9 Cal.4th 1 [36 Cal. Rptr.2d 317, 884 P.2d 1369]. The court held that the offense of violating section 208, subdivision (d), kidnapping with intent to commit rape, oral copulation, sodomy, or rape by *1047 instrument, incorporates "the aggravated kidnapping asportation standard...." (9 Cal.4th at p. 22.) In reaching this conclusion, the court stated the framework for its decision: "The issue we address in this case is whether the asportation standard for section 208(d) kidnapping is derived from that used for simple or aggravated kidnapping." (Id. at p. 18.) That issue, however, is not presented here because, unlike section 208, subdivision (d)'s general reference to "kidnapped," the Legislature has specifically and expressly provided that the kidnapping for purposes of section 667.8 is simple kidnapping, i.e., that defendant "kidnapped the victim in violation of Section 207...." (§ 667.8, subd. (a).)
Since the Legislature has expressly defined the type of kidnapping for purposes of section 667.8 as simple kidnapping, the trial court did not err in instructing the jury on the asportation standard for simple kidnapping.
IV. INEFFECTIVE REPRESENTATION[*]
.... .... .... .... .... .... .... .
V. DISPOSITION
The judgment is affirmed.
Anderson, P.J., and Perley, J., concurred.
A petition for a rehearing was denied February 14, 1995, and appellant's petition for review by the Supreme Court was denied April 13, 1995.
NOTES
[*] Part IV of this opinion is not certified for publication. (See Cal. Rules of Court, rules 976(b) and 976.1.)
[1] All further statutory references are to the Penal Code.
[*] See footnote, ante, page 1041. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263354/ | 31 Cal.App.4th 611 (1995)
37 Cal. Rptr.2d 361
THE PEOPLE, Plaintiff and Respondent,
v.
SILBINO PAZ ROJOS, Defendant and Appellant.
Docket No. A063974.
Court of Appeals of California, First District, Division Two.
January 13, 1995.
*612 COUNSEL
Jo Anne Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ann K. Jensen and George F. Hindall III, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HAERLE, J.
I. INTRODUCTION
Appellant appeals from his conviction for first degree burglary in connection with an incident occurring at a ranch in Sonoma County. He contends, on two separate but interrelated bases, that his conviction on this count cannot stand because (a) the crime of first degree burglary is contingent upon the building in question being inhabited by a person with a "possessory right" thereto and (b) that circumstance did not obtain in this case. We reject appellant's attempt to graft an additional "possessory right" requirement onto the code sections in question and affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Most of the factual background was disputed; a little was not. Among the undisputed elements were that appellant and one Lydia Luna (Luna) had known each other for several years from their work at or association with the Kunde Ranch in Kenwood, Sonoma County. Appellant was a worker at the ranch and Luna someone who had some prior association with the ranch, but at the time in question (May 1993) was apparently just selling beer to ranch employees after their work. It was also undisputed that Luna was occupying a cabin on the ranch.
In the disputed category, however, was the issue of whether that occupation was with the consent of the Kunde ownership/management or not. According to appellant, the ranch foreman and a deputy sheriff it was not. Luna, however, testified that the owners of the ranch had given her permission to stay at the cabin in question because she had worked for them in the past.
*613 Likewise in dispute were the events of May 29, 1993. Luna, who claimed that she had been raped on a previous occasion by appellant at the Kunde Ranch, testified that while she was sleeping at the cabin in question she was awakened by a noise coming from the window near her bed. She saw the appellant outside the window trying to slide it open. Appellant said that he "needed a woman" and she took this to mean he intended to rape her. She repeatedly told him "no" and tried to close the window, but appellant held it open. Appellant reached through the window with a knife in his hand; Luna tried to dodge the knife, but still held on to the window. Appellant reached in and grabbed Luna's hand, refusing her request to release her. Luna hit appellant's hand with a small flashlight; later, she noticed her own hand was cut and bleeding.
Appellant then told Luna he was going to kill her, hit her on the forehead, and pushed her head down. Luna ran to the door of the cabin trying to escape, but observed that someone was trying to twist the doorknob from the other side. She called out for help and when it arrived appellant was gone from the exterior of the cabin.[1]
Appellant was arrested, charged and tried on three counts: first degree burglary (Pen. Code, §§ 459, 460), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) and assault with intent to commit rape (Pen. Code, § 220). During the course of the jury trial the defendant moved to dismiss the first degree burglary charge on the basis there was no substantial evidence to support it. The court reserved its ruling on this motion but ultimately rejected it. After the presentation of evidence on both sides the jury found appellant guilty on all counts. The court sentenced the appellant to the middle term of four years for the assault with intent to commit rape, plus a weapons-use enhancement of one year, for a total state prison term of five years, less credits for time served. The court stayed any sentencing on the remaining counts pursuant to Penal Code section 654.
Appellant filed a timely notice of appeal, but appeals only with respect to the conviction for first degree burglary.
III. DISCUSSION
(1) As noted above, appellant's only grounds of appeal relate to the first degree burglary conviction. Although argued under two separate headings, *614 essentially appellant's point is a single one: a conviction under these Penal Code sections may only lie when the building in question is "inhabited" by someone with a possessory right. Inasmuch as the evidence was largely to the effect that Luna did not have any possessory right to the Kunde Ranch cabin she was occupying on the night in question, appellant argues that he cannot be guilty of first degree burglary. He contends, first of all, that there was a failure of proof of an essential element on the part of the prosecution and, secondly, that the court was required to instruct the jury that if Luna was a trespasser or "squatter" on the Kunde property, any burglary could not be first degree. Appellant thus requests that we modify the judgment to one for second degree burglary under the authority of People v. Cardona (1983) 142 Cal. App.3d 481 [191 Cal. Rptr. 109].
We find appellant's argument, although adroit, to be unsupported by any precedent and, in fact, to run contrary to significant case law with respect to the rationale for the distinction between first degree and second degree burglary. We thus reject his invitation to graft the "possessory right" qualification onto Penal Code sections 459 and 460.
Appellant refers us to a number of cases from outside of California to support his argument that a "possessory right" is or should be an essential factor to sustain a first degree burglary conviction. But we need not make that journey; although never addressing the specific issue appellant raises, the courts of this state have had ample opportunity to discuss the rationale for the "inhabited" term in the language of Penal Code sections 459 and 460.[2] The leading case regarding this rationale is People v. Lewis (1969) 274 Cal. App.2d 912 [79 Cal. Rptr. 650] in which the court explained that the greater punishment for first degree burglary reflects the Legislature's recognition of "the dangers to personal safety created by the usual burglary situation the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence." (Id. at p. 920.) Our Supreme Court quoted the critical language in Lewis approvingly in People v. Gauze (1975) 15 Cal.3d 709, 715 [125 Cal. Rptr. 773, 542 P.2d 1365].
*615 So have we: this Court followed the reasoning in Lewis in our decision in People v. Parker (1985) 175 Cal. App.3d 818 [223 Cal. Rptr. 284] in which we were faced with the argument that a first degree burglary conviction should be reversed because the defendant did not know that the building in question was "inhabited." That makes no difference, we said, because the purpose of the greater penalty attached to the crime of first degree burglary was to address the "dangers to personal safety" noted in Lewis. We went on to say: "These dangers arise whenever a burglar enters a residence and are not eliminated or even diminished simply because the burglar does not know that he is entering a residence. On the contrary, his surprise at having unexpectedly entered a residence may make the situation more volatile. If we were to permit the burglar's ignorance to shield him from the punishment for first degree burglary, despite the fact that he has, in fact, burglarized a residence, we would weaken the protection against residential burglary and frustrate the policy behind the enhanced penalty provided by section 460, subdivision 1. Conversely, our rejection of defendant's claim strengthens the deterrent effect of section 460 by putting a potential burglar on notice that he enters any building at his own peril and risks more severe punishment if it turns out to be a residence." (People v. Parker, supra, 175 Cal. App.3d at pp. 823-824.)
To the same effect are at least three other Court of Appeal decisions. (See People v. Wilson (1989) 208 Cal. App.3d 611, 615 [256 Cal. Rptr. 422]; People v. Thomas (1991) 235 Cal. App.3d 899, 906 [1 Cal. Rptr.2d 434]; People v. Nible (1988) 200 Cal. App.3d 838, 844 [246 Cal. Rptr. 119].) The point made in all of these cases is exactly that made in Lewis, namely, that the "inhabited building" distinction between first and second degree burglary is designed to protect the personal safety of the "inhabitants."
This being the case, of what possible difference is it whether the inhabitant of the building in question has a "possessory right" to the premises or not? Should we give a tenant who is "holding over" in a dispute with his/her landlord over the validity of an eviction notice less protection than one as to whom there is no dispute? Or, to come at it from another direction, is a burglary only second degree when undertaken on a house on which escrow has closed but where the sellers have somehow neglected to finish moving themselves and their last possessions out? These questions answer themselves. In this case, appellant (and apparently many others) knew that Luna was occupying the cabin in question. If there was a dispute about her right to occupy those premises, that was a matter between her and the Kunde Ranch management (or, under some circumstances, perhaps the sheriff). But it should not and does not make any difference as far as the application of the relevant Penal Code provisions to the building in question.
*616 IV. DISPOSITION
The judgment of conviction for first degree burglary is affirmed.
Kline, P.J., and Smith, J., concurred.
Appellant's petition for review by the Supreme Court was denied April 12, 1995.
NOTES
[1] Appellant took the stand in his own defense; his testimony of the events on the night in question contradicted those of Luna in many material respects. However, in view of the jury's verdict and the sole issue presented on this appeal, it is unnecessary to recite his version of these events.
[2] Insofar as pertinent here, these sections provide:
"Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building ... with intent to commit ... any felony is guilty of burglary. As used in this chapter, `inhabited' means currently being used for dwelling purposes, whether occupied or not." (Pen. Code, § 459.)
"(a) Every burglary of an inhabited dwelling house ... or trailer coach, as defined by the Vehicle Code, or the inhabited portion of any other building, is burglary of the first degree. [¶] (b) All other kinds of burglary are of the second degree." (Pen. Code, § 460, subds. (a), (b).) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263366/ | 238 P.3d 502 (2010)
STATE
v.
OPPELT.
No. 84573-5.
Supreme Court of Washington, Department I.
September 7, 2010.
Disposition of Petition for Review Granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263375/ | 31 Cal.App.4th 785 (1995)
37 Cal. Rptr.2d 425
THE PEOPLE, Plaintiff and Respondent,
v.
MICHAEL GREGORY COUNTS, Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
v.
MARSHALL EDWARD MIKELS, Defendant and Appellant.
Docket Nos. A062295, A062402.
Court of Appeals of California, First District, Division Five.
January 19, 1995.
*787 COUNSEL
Corey, Luzaich, Gemello, Manos & Pliska, Edward W. Pliska and Renee L. Berenson for Defendants and Appellants.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorney General, Ann K. Jensen and Allan Yannow, Deputy Attorneys General, for Plaintiff and Respondent.
[Opinion certified for partial publication.[*]]
OPINION
PETERSON, P.J.
Appellant Marshall Edward Mikels was convicted on numerous charges of grand theft and the making of false financial statements; appellant Michael Gregory Counts was convicted on charges of receiving stolen property. All the charges against both appellants arose from multiple thefts of lumber from lumber companies. Appellants raise numerous contentions of error.
We conclude there was no prejudicial error and affirm the judgments of conviction. In the published portion of this opinion, we hold that Mikels could properly be convicted of theft, on a theory of theft by false pretenses, despite the fact a security interest was retained in the stolen property by the victim; and that the abstruse technical question of whether this crime might also have been theft on a theory of larceny by trick could not result in reversal of the theft conviction.
I. FACTS AND PROCEDURAL HISTORY
Appellants were construction contractors who joined together in acts designed to steal lumber from lumber companies.
In early February 1992, Mikels was in deep financial difficulties, and county records showed he owed more than $800,000 to creditors. He filed a petition for writ of mandate and request for stay with this court (Division Five) on February 18, 1992, seeking relief from creditors; we denied the petition the same day (Mikels v. Superior Court (Feb. 18, 1992) A056562 [nonpub. opn.]). Two days later, he filed for federal bankruptcy protection.
In the days immediately before these events, Mikels ordered large amounts of lumber on credit from a number of different lumber companies, supposedly for use on a Caltrans job which in fact did not exist. Instead, *788 once the lumber was delivered to the supposed jobsite, Mikels moved the lumber and "sold" it for 50 cents on the dollar to his friend and partner, Counts. Counts hid the stolen goods in his lumberyard, and the identifying tags or markings which would have allowed it to be easily traced by the lumber companies were sanded off or removed. Counts planned to use the lumber to build fences for his own company, Peninsula Fence. Eventually, one of the lumber companies became suspicious and investigated; Mikels said he had used up the lumber on various jobs; but the company's representatives saw their lumber sitting in Counts's lumberyard, together with a lot of other lumber stolen from other companies by the same methods. The company contacted the authorities.
Most of the stolen lumber was recovered, and charges were filed against appellants. Mikels was charged with four counts of grand theft by false pretenses. Mikels was also charged with three counts of making a false financial statement. Counts was charged with three instances of receiving stolen property, in violation of Penal Code[1] section 496.
After a jury trial at which the evidence summarized above was adduced, the jury returned verdicts which convicted the appellants as charged, except the jury found that one of the charged thefts as to Mikels was in fact only an attempted theft. The trial court sentenced both appellants to probation. They timely appealed, and we ordered the appeals consolidated.
II. DISCUSSION
A. Mikels's Contentions
1. Theft by False Pretenses
(1a) Mikels contends one of the counts of grand theft, which pertained to the theft of lumber from Empire Lumber Company, should be reversed because Empire retained a security interest in the lumber. He claims the conviction should be reversed because the crime he committed was theft on a theory of larceny by trick, rather than theft by false pretenses. Mikels contends that since the victim retained a security interest, it could not have been intended that he acquire full and complete title, rather than mere possession, of the lumber. Mikels bases this argument in part upon his misinterpretation of language taken out of context from a recent decision by Division Three of this district, People v. Curtin (1994) 22 Cal. App.4th 528 [27 Cal. Rptr.2d 369] (Curtin).
We reject this contention. A thief may be convicted of theft by false pretenses, even though a security interest is retained in the stolen goods by *789 the true owner. Our research shows that for at least the past 100 years, our Supreme Court and the Courts of Appeal have rejected similar claims that a retained security interest prevents the passage of title so as to convert a theft by means of false pretenses to theft on a theory of larceny by trick. Nothing in Curtin, supra, alters this rule.
In the oldest case in which we can find a similar claim was made, People v. Martin (1894) 102 Cal. 558, 559, 565 [36 P. 952], the defendant contended she was guilty of larceny by trick, not false pretenses as the jury found, because the mortgage and other property in question were assigned to her in trust, secured by a written contract to support the victim for life, so the defendant did not obtain the full title to it, only possession. The high court rejected this claim: "Looking at this question in its most favorable light for the accused, it is at least apparent that the title to this property by the assignment thereof passed to her in trust." (Id. at p. 565.) Thus, even if the title acquired by the thief was subject to the provisions of another written trust agreement in favor of the victim, the property could still be the subject of false pretenses.
In another Victorian case, People v. Bryant (1898) 119 Cal. 595, 597-598 [51 P. 960] (Bryant), our high court reviewed the case law and held a charge of theft by false pretenses was proper where a cheat obtained the victim's money, and title thereto, by granting her a mortgage and security interest in land, the value of which land was misrepresented. It was no defense to say that the victim might potentially recover her loss by foreclosing on the security interest she held: "If a person is induced to part with his property by reason of fraudulent pretenses and misrepresentations, he is thereby defrauded of the property so parted with even though he may eventually make himself whole in some mode not then contemplated. It is not necessary to show that the property has been absolutely lost to [the victim] in order to sustain the charge. He is defrauded of his property when he is induced to part with it by reason of the false and fraudulent pretenses and representations, and the offense is complete when by means of such false pretenses the fraud thereby intended is consummated by obtaining possession of the property sought." (Id. at p. 597.) The high court also quoted with approval from an older case, which had held as follows: "`The allegation that the property was fraudulently obtained shows that the crime was consummated, and payment of the note [given as security therefor] after this would not blot out the offense or atone for its commission.'" (Id. at p. 598.) Thus, one who obtains property or money by false pretenses is guilty of that crime, even though the victim of the fraud retains a security interest which might potentially allow recovery of the lost money or property.
The high court relied upon Bryant, supra, and resolved a conflict in the case law to hold that one is guilty of theft by false pretenses, even though the *790 victims still had an interest in the stolen property by virtue of being partners with the thief, in People v. Jones (1950) 36 Cal.2d 373, 381-383 [224 P.2d 353] (Jones): "A complete loss of property need not be shown to support a charge of obtaining money under false pretenses. ([Bryant, supra,] 119 Cal. 595, 597 ....) Defendant, having perpetrated a fraud through the device of a partnership, cannot escape criminal liability by reason of that same device upon the theory that the defrauded parties, by becoming members of the partnership to which they contributed their money pursuant to his representations, retained such an interest in that fund as to preclude defendant's conviction...." Thus, Jones interpreted Bryant as allowing conviction for false pretenses, even though the victim retains an interest and a species of shared title in the stolen property.
The succeeding year, in People v. Nor Woods (1951) 37 Cal.2d 584, 585-586 [233 P.2d 897] (Nor Woods), the question was whether the defendant could be guilty of larceny by trick or false pretenses in connection with the theft of a car; the car was the subject of a security interest and lien held by a bank; and therefore, under Mikels's theory, the thief could not have been convicted of false pretenses. Justice Traynor rejected the claim that the theft conviction must be reversed: "[T]here was no error in failing to instruct the jury that they must agree upon the method by which the theft was committed. If [the victim] intended that only possession of the property should pass at the time of the sale, defendant was guilty of larceny by trick or device, but if [the victim] intended that title should pass, defendant was guilty of obtaining property by false pretenses. [Citations.] Irrespective of [the victim's] intent, however, defendant could be found guilty of theft by one means or another, and since by the verdict the jury determined that he did fraudulently appropriate the property, it is immaterial whether or not they agreed as to the technical pigeonhole into which the theft fell. [Citations.]" (Id. at p. 586.)
These principles were invoked by the Second District in People v. Aiken (1963) 222 Cal. App.2d 45, 49 [34 Cal. Rptr. 828] (Aiken), which held the defendant was guilty of theft of a car by false pretenses, even though the title which passed by fraud to the thief was not perfect, and was subject to a security interest retained by the victim: "Our attention has not been called to any authority requiring that in order to support a conviction for theft by false pretenses the title acquired by the fraud be perfect or complete." As the Second District also observed, the law as stated in Jones, supra, is in accord with that of other states: "Other jurisdictions have found no difficulty in deciding that theft by false pretenses has been committed where the thief took property under a conditional sales contract and the victim retained a legal title to secure the unpaid balance of the purchase price. [Citations.]" (Aiken, supra, 222 Cal. App.2d at p. 49.)
*791 Under these cases, Mikels was properly convicted of grand theft based upon false pretenses in connection with the Empire Lumber transaction, even though Empire retained a security interest in the lumber. Despite that security interest, obviously the victim intended Mikels to obtain, and he did obtain, sufficient title under California law to support a conviction for false pretenses.
We are not cited to, and our own research has not discovered, any published California case which actually holds it is impossible to steal property by false pretenses when the property is also encumbered with a security interest. Mikels relies in part upon ambiguous dicta from a decision by the Fourth District, Division One, which has been ordered not to be published in the Official Reports. Obviously, the cited case is not persuasive authority.
Further, there are compelling policy considerations in favor of the rule enunciated by our Supreme Court and the Second District. It obviously would be irrational to hold that any item which is being bought on time and is the subject of a security interest is fair game for thieves who use false pretenses.
Moreover, Mikels's reliance upon the decision of Division Three in Curtin, supra, 22 Cal. App.4th at pages 531-532 is also misplaced. Curtin concerned a situation contrapositive to this one; there, the defendant contended his conviction for theft on a theory of larceny by trick should be reversed because he had obtained title to the money, and his crime was in fact theft by false pretenses. While Mikels draws our attention to the Curtin court's perhaps technical holding on this point, even if Curtin were correct, this would not aid him; Mikels is forced to argue illogically that a theft conviction must be reversed where the evidence in fact showed theft, which is not the proper interpretation of Curtin. Curtin reversed a theft conviction because the instruction as to larceny by trick required the presence of evidence which did not exist in the record, and there was insufficient evidence of corroboration to sustain the conviction on a theory of false pretenses. (Ibid.) Corroboration was abundant in the present case, and Mikels does not argue to the contrary; it is also obvious from the record that he intended to permanently deprive the victims of their property through an unlawful taking.
Mikels also contends, again citing Curtin, supra, that reversal of a theft conviction is always required if the defendant is found guilty of theft on the wrong theory. However, Mikels reads much too broadly, and out of its true precedential context, the Curtin dictum that "the offense shown by the *792 evidence must be one on which the jury was instructed and thus could have reached its verdict." (22 Cal. App.4th at p. 531.) In both this case and in Curtin, the jury was instructed on the offense of theft. We interpret the Curtin dictum as meaning that there may be a technical error when the particular theory of theft upon which the jury is instructed turns out to be the wrong one. However, neither Curtin nor any decision cited therein actually holds there is a rule of per se reversal in such circumstances.
Moreover, the only California authority on this point, not cited in Curtin, squarely holds such an error is harmless. In People v. North (1982) 131 Cal. App.3d 112, 117-118 [182 Cal. Rptr. 126] (North), Presiding Justice Roth so held, rejecting the defendant's contention that his conviction for theft regarding the writing of worthless checks should be reversed, because the jury was instructed on the wrong theory of theft.
The defendant's contention in North was stated as follows: "Because there was a transfer of both possession and title in the proceeds of the cashed checks, the court erred in instructing the jury on larceny by trick or device while refusing to instruct on obtaining property by false pretenses." (131 Cal. App.3d at p. 116.)
Presiding Justice Roth aptly rejected the defendant's contention that he was entitled to reversal on those facts: "[Defendant's] final contention has the complexion of merit but does not withstand analysis. Over his objection, the jury was instructed on larceny by trick or device even though obtaining property by false pretenses is a more accurate description of the crime committed. [¶] The necessity of corroboration distinguishes false pretenses from trick and device and adds to the burden of proof the People must carry. Corroboration was present at bench.... In People v. Kagan (1968) 264 Cal. App.2d 648 ..., (pet. for hg. and rehg. den.) the jury was instructed on larceny by trick and device, embezzlement and false pretenses. The court, discussing the distinction between said types of theft said at page 658: `As to the California theft statute (§ 484), however, the cases all hold that a judgment of conviction must be affirmed if there is sufficient evidence to support a theft conviction on any theory. [Citations.] As stated in [People v.] Ashley [(1954) 42 Cal.2d 246, 258 (267 P.2d 271)], "Juries need no longer be concerned with the technical differences between the several types of theft, and can return a general verdict of guilty if they find that an `unlawful taking' has been proved."'" (North, supra, 131 Cal. App.3d at pp. 117-118.) Our Supreme Court denied a petition for hearing in North, although Chief Justice Bird voted to grant the petition. (Id. at p. 118.)
We agree with North, despite the potential tension between the North holding and certain dicta in Curtin. Further, here the argument for harmless *793 error is even stronger than in North. In the present case, even under appellant's theory, the error caused the People to carry the unnecessary burden of proving corroboration in order to establish false pretenses. It is impossible to understand how an error which increased the People's evidentiary burden could have prejudiced appellant.
Nor is Mikels aided by another ambiguous dictum cited by the Curtin court, which is contained in the opinion of one justice pro tem, not concurred in by the other two justices, in People v. Smith (1984) 155 Cal. App.3d 1103, 1145 [203 Cal. Rptr. 196]. The actual holding in that case was evidently to the contrary. (See id. at p. 1188.) We also note that in Curtin, supra, it ultimately made no difference to the defendant whether the theft conviction was reversed; the operative sentence imposed upon him had been for burglary, not theft, so reversal of the theft conviction had no practical effect on his sentence. (22 Cal. App.4th at p. 530.) Before the Curtin decision, Mr. Curtin had a two-year term for burglary and a stayed two-year term under section 654; after the Curtin decision this was still true. (22 Cal. App.4th at p. 530.) The Curtin dicta, thus, is of doubtful validity in light of the case law which the Curtin court did not cite.
(2) In California, the ancient common law distinctions between the theories of larceny by trick and theft by false pretenses no longer exist by statute; under section 484, there is simply one consolidated crime of theft, which the jury may find upon either theory, if there is an "unlawful [taking]" (§ 952). As stated by our Supreme Court in People v. Ashley (1954) 42 Cal.2d 246, 258 [267 P.2d 271], "The purpose of the consolidation was to remove the technicalities that existed in the pleading and proof of these crimes at common law.... Juries need no longer be concerned with the technical differences between the several types of theft, and can return a general verdict of guilty if they find that an `unlawful taking' has been proved. [Citations.]" We note that another recent larceny case from the same court which decided Curtin, supra, supports our analysis: "In the instant action it was irrelevant whether defendant obtained the dress by trick or intimidation of the store employees. The end result was that he left the store with property he had not paid for." (People v. McLemore (1994) 27 Cal. App.4th 601, 606 [32 Cal. Rptr.2d 687].)
(1b) It would obviously be very hard to explain why a theft conviction should be reversed on the grounds that the evidence showed the defendant was indeed guilty of theft, but would have been guilty of a differently denominated type of theft under a common law system which has been repealed by statute. In the words of Justice Traynor, "it is immaterial whether or not [the jurors] agreed as to the technical pigeonhole into which *794 the theft fell." (Nor Woods, supra, 37 Cal.2d at p. 586.) To the extent we assumed arguendo there would be some technical common law pleading flaw in charging false pretenses where complete title had not in fact passed, it would appear to be, at most, harmless error here. (See People v. Cahill (1993) 5 Cal.4th 478, 487-492, 508-509 [20 Cal. Rptr.2d 582, 853 P.2d 1037]; North, supra, 131 Cal. App.3d at p. 118.)
2., 3.[*]
.... .... .... .... .... .... .... .
B. Counts's Contentions[*]
.... .... .... .... .... .... .... .
III. DISPOSITION
The judgment of conviction is affirmed.
King, J., and Phelan, J.,[] concurred.
A petition for a rehearing was denied February 15, 1995.
NOTES
[*] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of sections A.2., A.3., and B.
[1] All subsequent statutory references are to the Penal Code.
[*] See footnote, ante, page 785.
[] Associate Justice of the Court of Appeal, First District, Division Two, sitting under assignment by the Chairperson of the Judicial Council. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2764599/ | Tsimbler v Fell (2014 NY Slip Op 08982)
Tsimbler v Fell
2014 NY Slip Op 08982
Decided on December 24, 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 24, 2014
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
SHERI S. ROMAN
SANDRA L. SGROI
JOSEPH J. MALTESE, JJ.
2014-01760
(Index No. 3903/09)
[*1]Yosif Tsimbler, appellant,
vMillie R. Fell, etc., et al., respondents, et al., defendant.
Garry Pogil, New York, N.Y., for appellant.
Peter C. Kopff, LLC (Mauro Lilling Naparty, LLP, Woodbury, N.Y. [Gregory A. Cascino and Caryn L. Lilling], of counsel), for respondents.
DECISION & ORDER
In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated December 20, 2013, which granted that branch of the motion of the defendants Millie R. Fell and Raymond Reich which was for summary judgment dismissing the complaint insofar as asserted against them, and denied his cross motion to dismiss their affirmative defense alleging that the action was time barred.
ORDERED that the order is affirmed, with costs.
The defendants Millie R. Fell and Raymond Reich (hereinafter together the physician defendants) established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice by submitting the affidavit of their expert, which demonstrated that their diagnosis and treatment of the plaintiff's open-angle glaucoma was in accordance with good and accepted standards of medical practice (see Poter v Adams, 104 AD3d 925, 926; Olgun v Cipolla, 82 AD3d 1186, 1187; Smith-Johnson v Gabbur, 65 AD3d 1122, 1124; Dandrea v Hertz, 23 AD3d 332). In opposition, the plaintiff submitted the affidavit of a physician specializing in the field of internal medicine, which did not state whether the physician had any specific training or expertise in ophthalmology, or particularized knowledge as to the treatment of glaucoma. Moreover, the affidavit did not indicate that the physician had familiarized himself with the relevant literature or otherwise set forth how he was, or became, familiar with the applicable standards of care in this specialized area of practice. " While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable'" (Behar v Coren, 21 AD3d 1045, 1046-1047, quoting Postlethwaite v United Health Servs. Hosps., Inc., 5 AD3d 892, 895; see Shectman v Wilson, 68 AD3d 848, 849). Thus, where a physician opines outside of his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered (see Shectman v Wilson, 68 AD3d at 850; Geffner v North Shore Univ Hosp., 57 AD3d 839; Bjorke v Rubenstein, 53 AD3d 519, 520; Glazer v Lee, 51 AD3d 970, 971; Mustello v Berg, 44 AD3d 1018, 1019; Behar v Coren, 21 AD3d at 1046-1047). Under the circumstances of this case, the plaintiff's expert failed to lay the requisite foundation for his asserted familiarity with [*2]ophthalmology and, thus, his affidavit was of no probative value. Accordingly, the plaintiff failed to raise a triable issue of fact, and the Supreme Court properly granted that branch of the physician defendants' motion which was for summary judgment dismissing the cause of action alleging medical malpractice insofar as asserted against them.
"[L]ack of informed consent is a distinct cause of action requiring proof of facts not contemplated by an action based merely on allegations of negligence" (Jolly v Russell, 203 AD2d 527, 528). A cause of action premised on a lack of informed consent "is meant to redress a failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical . . . practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation'" (Karlin v IVF Am., Inc., 93 NY2d 282, 292, quoting Public Health Law § 2805-d [1]). Thus, to establish a cause of action to recover damages for malpractice based on lack of informed consent, a plaintiff must prove "(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury" (Spano v Bertocci, 299 AD2d 335, 337-338 [citation and internal quotation marks omitted]; see Khosrova v Westermann, 109 AD3d 965, 966).
Here, the physician defendants failed to submit proof sufficient to establish, prima facie, that they had informed the plaintiff of the reasonably foreseeable risks associated with the treatment, and, in any event, that a reasonably prudent patient in the same position would have undergone the treatment if he or she had been fully informed. However, the physician defendants established, prima facie, that the lack of informed consent was not the proximate cause of the plaintiff's injury by submitting the affidavit of their expert, who opined that the physician defendants' treatment of the plaintiff was not responsible for his injuries. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the physician defendants' motion which was for summary judgment dismissing the cause of action alleging lack of informed consent insofar as asserted against them.
The plaintiff's remaining contentions either are without merit or need not be reached in light of our determination.
MASTRO, J.P., ROMAN, SGROI and MALTESE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court | 01-03-2023 | 12-24-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1334863/ | 88 S.E.2d 922 (1955)
197 Va. 325
ATWOOD TRANSPORT COMPANY et al.
v.
COMMONWEALTH of Virginia and S. W. Rawls, Incorporated.
Supreme Court of Appeals of Virginia.
September 14, 1955.
*923 Christian, Barton, Parker & Boyd, Richmond, for appellants.
Walter E. Rogers, Richmond, A. E. S. Stephens, Smithfield, for appellees.
Before EGGLESTON, SPRATLEY, BUCHANAN, MILLER, SMITH, and WHITTLE, JJ.
SPRATLEY, Justice.
S. W. Rawls, Incorporated, hereinafter referred to as Rawls, made an application to the State Corporation Commission for a certificate of public convenience and necessity as a petroleum tank truck carrier.[*] It asked to be allowed to distribute petroleum products from Norfolk and South Norfolk, Virginia, to Emporia, Capron, Franklin, Smithfield and Suffolk, Virginia, and points in the counties of Nansemond, Isle of Wight, Southampton, Surry, Sussex and Greensville, Virginia. Notice of the application and the date of the hearing thereon were duly given to every petroleum tank truck carrier operating in the above mentioned territory. At the hearing, Atwood Transport Company and M. & L. Distributors, Incorporated, and seventeen other holders of certificates as petroleum tank truck carriers in Virginia, hereinafter referred to as appellants, appeared in opposition to the awarding of the certificate.
After hearing the evidence, the Commission, being of opinion that the proposed operation by Rawls was justified by public convenience and necessity, granted the requested certificate. Appellants applied for and obtained this appeal as of right.
Two questions are presented for our determination. The first is raised by the motion of Rawls to dismiss the appeal as improperly awarded, on the ground that this Court is without jurisdiction either to entertain the petition for, or to allow the appeal. The second question relates to the merits. The appellants contend that no necessity was shown for granting the certificate to Rawls.
I
The first question involves the consideration of Code, §§ 56-338.25 and 56-338.32, 1954 Cumulative Supplement, Code of 1950.
"§ 56-338.25. As to petroleum tank truck carriers, the provisions of this chapter shall be controlling, and no laws in conflict herewith, or inconsistent herewith, shall have any application to such carriers."
"§ 56-338.32. From any order of the Commission imposing any fine or refusing, suspending, revoking, altering or amending any certificate, the certificate holder shall have the right of appeal to the Supreme Court of Appeals of Virginia, as a matter of right, as in other cases of appeals from the Commission."
*924 In support of its contention, Rawls points out that under § 56-338.25, the provisions of Chapter 12.2 of Title 56 of the Code, the Petroleum Tank Truck Carriers' Act, are made controlling as to petroleum tank truck carriers, and that § 56-338.32, dealing with appeals arising under the Act, specifically enumerates the type of orders from which appeal is permitted, but makes no provision for an appeal from an order granting a certificate. It further points out differences between the provisions of Chapter 12.2 of Title 56 and those of Chapters 12 and 12.1 of Title 56, respectively, entitled "Motor Vehicle Carriers Generally", and "Household Goods Carriers." It then argues that the failure of § 56-338.32 to specify the right of an appeal from an order granting a certificate and the differences between the provisions of the Code chapters mentioned make it evident that the legislature did not intend that an appeal should be allowed, except in the instances specified.
Upon a careful consideration of the language and provisions of § 56-338.32, we are of opinion that the section allows appeals to "the certificate holder"; that is, to the holder of a certificate who has been fined, to an applicant who has been refused a certificate, and to the holder of a certificate whose certificate has been suspended, revoked, altered or amended. An order "refusing" a certificate must refer to an order denying a certificate to an applicant. Evidently the draftsmen of the section, by unartful language, sought to expressly allow an appeal to the particular party before the Commission who was aggrieved by its order. There was no need for such allowance to an applicant who had been granted a certificate. The section does not, expressly or by implication, take away from any other party in interest, or any party aggrieved by the order of the Commission the right of appeal as provided by the general law, whether the order grants or refuses the certificate, or suspends, revokes, alters or amends one already granted. The last words of the section recognize that there may be "other cases of appeals from the Commission."
The intention of the legislature with respect to appeals from the orders and findings of the State Corporation Commission is expressed in clear and unambiguous language in Code, §§ 12-63 and 12-63.1, which, respectively, read as follows:
"§ 12-63. Appeals generally.The Commonwealth, any party in interest or any party aggrieved by any final finding, order, or judgment of the Commission shall have, of right, regardless of the amount involved, an appeal to the Supreme Court of Appeals, * * *."
"§ 12-63.1. Appeal from any order or decision.An appeal shall lie from any order or decision of the Commission to the Supreme Court of Appeals at the instance of the applicant or any party in interest. * * *"
The provisions of § 56-338.32 are supplementary to the broad provisions of §§ 12-63 and 12-63.1, which give an appeal of right to "any party in interest or any party aggrieved by any final finding, order, or judgment" of the Commission at the instance of the applicant, provided the appeal be taken and perfected within a prescribed time. The repeated use of the word "any" throughout the two sections clearly and comprehensively expresses the extent of the rights allowed therein. No language could be broader than "any party" and "any final finding, * * *."
It is true that there are differences between the provisions of the hereinbefore mentioned Acts; but the differences relate to the nature of the subjects involved and the character of the operations in which the carriers are involved. It is also true that § 56-338.7 of the Household Goods Carriers' Act provides for appeals in accordance with the provisions of Code, §§ 12-63 and 12-64, and § 56-338.13 of the same Act provides for appeal in specified cases, while no reference is made in the Petroleum Tank Truck Carriers' Act to Code, §§ 12-63 and 12-64; but that does not aid us other than to show the public policy of the State with regard to appeals *925 from the orders and findings of the State Corporation Commission.
Section 56-338.25 does not deny rights conferred by other statutes except where the latter may be in conflict therewith, or inconsistent therewith, and we find nothing in the language of § 56-338.32 which is in conflict or inconsistent with the provisions of §§ 12-63 and 12-63.1. The motion to dismiss is without merit.
II
We turn now to the contention of the appellants, relating to the merits of the case. The evidence may be summarized as follows:
S. W. Rawls, Incorporated, has since 1948 been a seller and distributor of petroleum products. It was organized to take over the same business formerly operated by S. W. Rawls, individually, for a long period of years. The corporation operates plants at Franklin, Smithfield and Emporia, leased from the Gulf Oil Company. From these plants it sells and distributes gasoline, fuel oil, and kerosene, supplied to it by the Gulf Oil Company, hereinafter referred to as Gulf. It purchases some and some it sells on commission. Title to the products sold on commission remains in Gulf; but Rawls assumes responsibility for and guarantees all sales made on credit, which have not been specifically approved by Gulf. In addition, Rawls stores in its tanks light fuel oil which it has purchased and delivers it therefrom to customers as sales are made. It also purchases certain heavy fuel oil which it delivers directly to its customers from the suppliers' plants.
Prior to the enactment of the Petroleum Tank Truck Carriers' Act, all of the petroleum products handled through the storage plants owned by Rawls were transported to such plants and from them to Rawls' customers in equipment owned and operated by it. Heavy fuel oils delivered directly from the supplier to the consumer, both that purchased outright by Rawls and that sold by it on commission, were transported for Rawls by M. & L. Distributors, Inc. Later upon complaints by some of Rawls' customers that they were not getting satisfactory service in the delivery of that type of oil, Rawls purchased equipment to enable it to make direct distribution and delivery, both from its plants and from its suppliers, to its customers as and when ordered and required. A question then arose whether it could transport directly to its customers oil products not distributed from its own storage facilities without a certificate of convenience and necessity, and Rawls applied for such a certificate.
Representatives of oil customers in the territory affected testified that the services rendered by the existing certificate holders did not meet their needs. Industrial users complained of late deliveries after business hours and of variations in service both in point of time and quantity. It was stated that schools requiring fuel oil in winter had not been adequately served. Several witnesses declared that the public convenience would be served by having Rawls make direct delivery to its customers.
Appellants, on the other hand, presented evidence that they had sufficient equipment to efficiently handle and transport all of the petroleum products necessary in the area in question. They presented a number of letters from customers stating that the service rendered by M. & L. Distributors, Inc., was entirely satisfactory. Some of the appellants do not operate in the territory involved; but nevertheless appeared on behalf of the certificate holders who were directly affected.
Prior to the enactment of the Petroleum Tank Truck Carriers' Act, motor carriers transporting petroleum products for hire received a permit under provisions of Article 3, Chapter 12, Title 56 of the Code. The permits were issued without proof of public convenience and necessity upon the filing of an application and the necessary insurance. The newly enacted Act provided that all carriers engaged in the business of transporting petroleum products, as therein defined, during the year ending December 31, 1951, should be entitled to certificates if application was made within a specified time. *926 § 56-338.33. Under the evidence, Rawls would have been entitled to a certificate under the Act without the necessity of a hearing had it applied within the prescribed time limit.
Appellants' objection to the granting of the certificate to Rawls is based on the grounds that it was not shown that the service rendered by the existing certificate holders was inadequate for the requirements of the public convenience and necessity, and that the addition of another certificate holder would reduce their income. They cite our decisions in the cases of Lee Compton Lines, Inc., v. Commonwealth, 192 Va. 411, 65 S.E.2d 515, and Seaboard Air Line Railroad Co. v. Commonwealth, 193 Va. 799, 71 S.E.2d 146.
The answer to the contention of the appellants is found in the peculiar provisions of § 56-338.29 as applied to the evidence. That section reads as follows:
"(a) Upon the filing of an application for a certificate of public convenience and necessity as a petroleum tank truck carrier, the Commission shall, within a reasonable time, fix a time and place of hearing of such application. If the Commission shall find the proposed operation justified by public convenience and necessity, it shall issue a certificate to the applicant, subject to such terms, limitations and restrictions as the Commission may deem proper. If the Commission shall find the proposed operation not justified, the application shall be denied.
"(b) In determining whether or not the proposed operation is justified the Commission may consider, among other things, the public safety, the public necessity for the proposed operation, the volume and character of traffic on the applicant's proposed route or routes, especially the existing volume of petroleum products transportation thereon, and the condition of the highways involved in the proposed operation."
The provisions of this section are materially different from those of § 56-281, with which section we were dealing in Lee Compton Lines, Inc., v. Commonwealth, supra, and Seaboard Air Line Railroad Co. v. Commonwealth, supra. In each of those cases the Commission refused to issue a certificate to "an applicant proposing to operate over the route of another holder of a certificate" as a common carrier of property by motor vehicle. Section 56-281 provides that in such an instance no additional certificate shall be granted unless and until the Commission shall find that the service of the existing certificate holder is "inadequate to the requirements of the public necessity and convenience", and if the service is inadequate, the certificate holder shall be given reasonable time and opportunity to remedy such inadequacy before any certificate shall be granted to an applicant proposing to operate over his route.
No such provision is found in the Petroleum Tank Truck Carriers' Act. That Act merely provides that if the Commission "find the proposed operation justified by public convenience and necessity, it shall issue the certificate to the applicant, subject to such terms * * * as the Commission may deem proper." In determining that question, the Commission may consider, among other things, "the public safety, the public necessity for the proposed operation, the volume and character of traffic on the applicant's proposed route or routes, especially the existing volume of petroleum products transportation thereon, and the condition of the highways involved in the proposed operation."
Thus, § 56-338.29(b) points out dangers to be guarded against and the interests to be served. It contains no express provisions as to adequacy of service, and none on the subject of competition from existing carrier service, as are found in § 56-281. The Petroleum Tank Truck Carriers' Act is a liberal statute. All that is required to be shown by the applicant for a certificate is that the proposed operation is "justified by the public convenience and necessity." It was apparently enacted to insure that every part of the State should have a complete and satisfactory supply of petroleum products, *927 such as gasoline and fuel oil at all times. The fact that existing certificate holders might be able to provide this service is not of material significance, nor that such holders might suffer from competition by the granting of additional certificates of prime importance. The public convenience and necessity is of paramount consideration.
The principles which govern a review of the order and finding of the State Corporation Commission have often been stated. The findings of the Commission must be regarded by us as prima facie just, reasonable and correct, and can not be upset in the absence of a showing of an abuse of the discretion vested in it by statutory and constitutional provisions. Constitution of Virginia, § 156(f). Petersburg, H. & C. P. Railway Co. v. Commonwealth, 152 Va. 193, 200, 146 S.E. 292, 67 A.L.R. 931.
In dealing with the discretion vested in the Commission, in Jessup v. Commonwealth, 174 Va. 133, 142, 5 S.E.2d 482, 486, we said:
"The Commission is vested with wide discretion in the issuance of certificates of public convenience and necessity and in the supervision of transportation by all common carriers. The judgments of the Commission are presumed to be correct."
In Petersburg, H. & C. P. Railway Co. v. Commonwealth, supra [152 Va. 193, 146 S.E. 295], in considering the meaning of"` "public convenience and necessity"`", we cited with approval In Re Walter M. Aldrich, decided by the New York Public Service Commission, and reported in P.U.R.1923A, p. 385, wherein this was said:
"`In the phrase "public convenience and necessity" the word "necessity" means that which is needful, essential, requisite or conducive to "public convenience." When more convenient and adequate service is offered to the public it would seem that necessity requires such public convenience should be served.'"152 Va. 203, 146 S.E. 295.
In Seaboard Air Line R. Co. v. Commonwealth, supra, 193 Va. at page 806, 71 S.E. 2d at page 150, we cited Union Pacific R. Co. v. Public Service Commission, 103 Utah 459, 135 P.2d 915, 917, in which this was said:
"`Necessity means reasonably necessary and not absolutely imperative. * * * The convenience of the public must not be circumscribed by holding the term "necessity" to mean an essential requisite. * * * It is necessary if it appears reasonably requisite, is suited to and tends to promote the accommodation of the public. * * *'"
As the Commission stated in its opinion, the fact that Rawls had served its customers within the territory involved for so many years clearly indicated that there was a public need for the continuation of its service. The evidence presented also supported the conclusion that such continued service will make the public use more convenient. The order appealed from is, therefore, affirmed.
Affirmed.
NOTES
[*] Petroleum Tank Truck Carriers' Act, Chapter 12.2 of Title 56, §§ 56-338.19 to 56-338.39, inclusive, 1954 Cumulative Supplement Code of Virginia, 1950, Acts 1952, Chapter 632. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334864/ | 92 Ga. App. 417 (1955)
88 S.E.2d 470
CORLEY, by Next Friend,
v.
RUSSELL.
35656.
Court of Appeals of Georgia.
Decided June 20, 1955.
Rehearing Denied July 8, 1955.
*419 P. Walter Jones, H. G. Rawls, for plaintiff in error.
Burt & Burt, contra.
QUILLIAN, J.
In this opinion we conveniently refer to the plaintiff in error as "the plaintiff" and to the defendant in error as "the defendant," they having occupied those respective relationships to the case in the trial court.
1. The only general ground of the motion for new trial insisted upon in this court is that the verdict was without evidence to support it. The ground is without merit, but in reviewing it *420 the question of whether the evidence demanded a verdict for the defendant is considered. The evidence barely authorized the submission of the case to the jury, but there was some evidence, though meager and weak, that would have supported a verdict for the plaintiff. It was shown that on the occasion when the plaintiff was injured the defendant was driving along a street in the City of Albany. He was traveling 20 to 25 miles per hour on what appeared from the evidence to be a thickly populated section of the city and on a street where the traffic was congested. The evidence showed that automobiles were parked along the street, and at the very instant of the accident the automobile driven by the defendant was meeting a truck and was being followed by a truck.
The plaintiff, a child three and one-half years old, obscured by an automobile standing on the defendant's left side of the street, suddenly darted out in front on the defendant's automobile and was struck down. Unless the defendant was negligent in operating his automobile at too great a speed under the circumstances of the case, the evidence does not indicate any fault on his part. The ordinance of the city fixed the limit at which an automobile could be driven at 30 miles per hour, and provided: "Section 42. Speed Restrictions. (a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing. (b) Where no special hazard exists the following speed for passenger vehicles shall be lawful, and any speed in excess of such limits shall be unlawful. 2. Thirty miles per hour in any residential district. (d) The fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a bridge crest, when traveling upon any narrow roadway or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care. (f) The foregoing provisions of this Section shall not be construed to relieve the plaintiff in any civil action from the burden of proving *421 negligence upon the part of the defendant, as the proximate cause of an accident."
It was a question for the jury as to whether the speed of the defendant's vehicle was under the circumstances excessive. There was evidence as to the extent of the plaintiff's injuries.
2. The first ground of the amended motion for new trial complains that the court erred in excluding testimony of Gordon Stokes, a police officer who the plaintiff contends had qualified as an expert as to the manner and speed that automobiles should be operated, "that, in his opinion, in view of the conditions existing and in view of the situation with reference to the notoriety of children playing in and out about the premises, and the streets and sidewalks where this casualty occurred, any speed in excess of 15 m.p.h., certainly any speed in excess of 20 m.p.h., would be excessive and dangerous."
The plaintiff cites as authority for this position that the evidence should have been admitted, the cases of Georgia Southern &c. Ry. Co. v. Overstreet, 17 Ga. App. 629 (3) (87 S.E. 909), Atlanta Ry. &c. Co. v. Monk, 118 Ga. 449 (45 S.E. 494), and Sockwell v. Lucas & Jenkins, Inc., 71 Ga. App. 765 (32 S.E.2d 201).
The holding in the Overstreet case is to the effect that the trial court erred in rejecting the testimony of a railroad conductor that it was not safe for a passenger burdened with certain articles to cross an open platform while the train was traveling at a given speed. The case cited is authority for the proposition that an expert witness may testify as to whether a certain act constituted negligence, even though the determination of whether such act was negligent is not dependent upon any question of skill or science.
The case of Sockwell v. Lucas & Jenkins, Inc., supra, holds that the testimony of a building inspector that a door complied with a city's building regulations was admissible. It is obvious that evidence could have been introduced plainly showing the condition of the door and the precise wording of the regulations. The conclusion is inescapable that the decision furnishes some precedent for the contention that an expert witness may testify that an act is negligent, even though the facts in reference to such an act might be understood by the jury as well as by the expert.
*422 The holdings of the last two cases referred to are not consistent with those in Mayor &c. of Milledgeville v. Wood, 114 Ga. 370 (2) (40 S.E. 239), in which it is held: "The opinion of a witness is not admissible in evidence when all the facts and circumstances are capable of being clearly detailed and described so that the jurors may be able readily to form correct conclusions therefrom."
The case of Cone v. Davis, 66 Ga. App. 229 (4) (17 S.E.2d 849), clearly states the rule applicable to the instant case.
There, as here, the question was what was a reasonable speed of an automobile under the circumstances of the case. This court reviewed the holdings of the Supreme Court beginning with Berry v. State, 10 Ga. 511 (15) by which the rule became well established in this State. "It is an elementary principle of the law of evidence that the understanding and opinion of witnesses are not to be received, except in matters of science and a few special cases, resting upon peculiar circumstances."
It is written in the Cone case that "Whether the witness be an expert or a non-expert, he can not testify that from the preliminary or evidentiary facts detailed to him, or from the preliminary or evidentiary facts which he knew, the defendant was guilty of any one of the acts of negligence relied on for a recovery. Looking to the nature of the investigation, the ultimate fact of negligence, this is not a proper matter for an opinion of a witness whether he be an expert or a non-expert. Negligence or no negligence was the very issue the jury were impanelled to try."
In Pybus v. Goldstein, 45 Ga. App. 669 (165 S.E. 866), it is held that an expert witness should not be allowed to testify that it was his opinion that the defendant was negligent "as respects speed, etc."
The ground does not show error.
3. Special grounds 2, 3, and 4 of the amended motion for new trial assign error on the admission of evidence. The evidence objected to does not appear to be admissible, but other evidence of the same nature and import was admitted without any objection being interposed or its competency being in any manner challenged. Thus the objections to the evidence were waived, and the grounds are without merit. Simmons v. State, 34 Ga. App. 163 (1) (128 S.E. 690); Bullard v. Metropolitan Life Ins. Co., 31 Ga. App. 641 (6) (122 S.E. 75); Exchange Bank of Savannah v. Pate, 41 Ga. App. 1 (2) (151 S.E. 823).
*423 4. Ground 5 of the amended motion complains that the court erred in admitting in evidence sections of the traffic code of the City of Albany. It read: "Article 4, Section 59 of the Traffic Code of the City of Albany, reading as follows: Every pedestrian crossing a roadway at any point, other than within a marked crosswalk, or within an unmarked crosswalk at an intersection, shall yield the right of way to all vehicles upon the roadway."
The objection to the evidence was that it was irrelevant and immaterial, in that it undertook to charge the plaintiff, Marvin Corley, a minor, with negligence, when as a matter of law he was incapable of committing negligence. While the objection did not reveal the age of the child, and under our law not all infants or minors, but only those of tender years are incapable of committing acts of negligence, yet it appeared from the pleadings and evidence that the child was only three and one-half years old, and of course not of such age that he could be held to exercise care.
The evidence was not admissible for the purpose of showing that the plaintiff was required by the ordinance to exercise ordinary care. However, one of the important issues in the case was whether, under the conditions as they existed in the area where the defendant was operating his automobile, he was doing so at a reasonable and safe speed. Indeed, the plaintiff's case is largely predicated upon the insistence that the defendant was not operating his automobile at a reasonable, prudent speed considering the populous surrounding and the traffic conditions on the street. The defendant was presumed to know the traffic ordinances of the city, and the fact of whether or not the place where the plaintiff undertook to cross the street was one at which the defendant would expect people to cross the street would have been relevant to the issue if the plaintiff had been a person capable of violating the ordinance. Monahan v. National Realty Co., 4 Ga. App. 680 (4) (62 S.E. 127).
But the plaintiff was a child of tender years, not amenable to the mandate of the ordinance that pedestrians, crossing the street other than at marked crosswalks or at intersections, yield the right of way to vehicles upon the street. Accordingly, the ordinance was not admissible on the issue as to whether the defendant was negligent in not anticipating the presence of the plaintiff in *424 the street. Whether the defendant was negligent as to the class who were governed by the ordinance could not possibly throw any light on whether he was negligent as to the plaintiff. The same reasoning applies to this ground as applies to the assignment of error in ground 7. The principle involved in both assignments of error is identical. The court erred in admitting the ordinance in evidence.
5. Ground 6 of the amended motion complains that the court erroneously charged the jury: "Briefly, gentlemen, the plaintiff in this case contends that the injury was caused solely and proximately by the negligence and recklessness of the defendant, H. Forrest Russell, Jr., in operating his automobile on this occasion at a reckless and unreasonable rate of speed, in violation of a certain ordinance of the City of Albany, and that, being aware that it was customary for the children in the neighborhood to play in and about the street, he failed to keep a proper lookout and discover the presence of plaintiff in his line of traffic, and thereby avoid injuring him."
The plaintiff contends that the charge was misleading to the jury, for the reason that the suit was not predicated upon reckless conduct of the defendant, but upon simple negligence. He insists that the charge led the jury to believe that, in the absence of proof of recklessness on the part of the defendant, even if there was sufficient evidence that he was negligent as charged in the petition, there could be no recovery.
The contention is not entirely without merit. No argument or citation of authority is necessary to sustain the view that "recklessness," which has as its chief ingredient a conscious disregard for the rights of others or one's own safety, is not synonymous with simple negligence, which consists of mere inadvertence or a lack of circumspection.
The defendant insists that the rule of law that slight inaccuracies in stating the contentions of a party are cured by charging the jury that the judge does not undertake to state all of the contentions of the parties, and that they should peruse the pleadings to understand definitely what those contentions are. The defendant cites Louisville & Nashville R. Co. v. Patterson, 75 Ga. App. 1 (2a) (42 S.E.2d 163), as authority for this position. That case is inapplicable, for in the instant case the court instructed *425 the jury that the contentions of the parties were to be found in the original petition, the amendment thereto, and the defendant's answer. The original petition was stricken by the amendment, and the amendment itself substituted in its stead. The original petition, which in these circumstances obviously did not present the plaintiff's contentions, was predicated upon the "recklessness" of the defendant, and prayed punitive damages. The cause of action set out in the amendment was based upon simple negligence alone. The instructions that the jury look to the pleadings to ascertain the contentions of the parties, instead of curing error in the charge complained of, emphasized it. Yet we are constrained to hold that the charge complained of was not reversible error, for the reason that the entire charge fairly and explicitly informed the jury that, if the defendant could have avoided the collision with the plaintiff by the exercise of ordinary care, the failure of the defendant to exercise that degree of care and diligence amounted to negligence, and that, if such negligence was the proximate cause of the plaintiff's injuries, they would be authorized to return a verdict in favor of the plaintiff. The charge contained no allusion to recklessness except that referred to.
We do not think the jury could have been confused by the isolated reference to "recklessness."
6. Ground 7 of the amended motion assigns as error an excerpt from the charge reading: "One who is himself rightfully using the highway or street has a right to the use thereof, which is superior to that of one who is violating traffic regulations, and, in the absence of knowledge, he is not required to anticipate that some other user will unexpectedly violate the law or rule of the road and create a situation of danger."
It is elementary law well established that a child three and one-half years old is incapable of violating any law, including a city ordinance.
The instructions complained of in effect instructed the jury that the defendant, if he was rightfully using the street, would have the right of way over the infant plaintiff if the latter violated the law. The charge was error and prejudicial to the plaintiff.
The court elsewhere in the general charge to the jury fully informed them that the plaintiff was of such tender age that he was not capable of violating the ordinance, but did not particularly *426 call attention to the charge above quoted or correct it. It is not the province of the jury to choose between correct and erroneous instructions.
7. The charge complained of in grounds 8 and 9 of the amended motion for new trial, while subject to criticism, were not error for the reasons assigned by the movant.
8. Special ground 10 alleges that the court erred in charging the jury that the defendant could not be charged with negligence in failing to stop his automobile in time to avoid striking the plaintiff, unless it appeared that the "boy" entered the street a sufficient distance from the automobile to permit its being stopped by the defendant, in the exercise of ordinary care, before colliding with the child.
The amended petition, substituted by the plaintiff's amendment, did not charge as the sole acts of negligence that the defendant did not have his automobile under immediate control, or that he failed to keep a lookout ahead of the vehicle, but also alleged that "the defendant was operating said automobile at a rate of speed which was not reasonable and prudent, taking into consideration the location of the operation thereof."
The charge should have been so qualified as to embrace the provision that, in order for the defendant's acts not to constitute negligence, it should appear that he was operating his automobile at a lawful speed.
9. The 11th ground of the motion for a new trial complains that the court charged the jury: "The defendant makes a further contention in this case, namely, that there is a City of Albany ordinance, Section 59 of the traffic code, which reads as follows: Every pedestrian crossing a roadway at any point, other than within a marked crosswalk, or within an unmarked crosswalk at an intersection, shall yield the right of way to all vehicles upon the roadway. The defendant contends that the plaintiff was crossing the street not at an intersection or at a designated crosswalk. I charge you that the plaintiff, on account of his age, is not, under the law of Georgia, chargeable with negligence or the duty of exercising any care for his own safety. You will thus consider this ordinance, under the evidence, in determining the defendant's conduct, and whether or not he is chargeable with a failure to exercise due care on this occasion."
*427 Had the plaintiff been a person capable of violating the ordinance, it would have been admissible as evidence and the court's charge correct; for then the ordinance would have been illustrative of the fact both that the plaintiff was guilty of negligence which would amount to a failure to exercise ordinary care for his own safety, and that the defendant had a right to expect no one would appear in the street at the place where the collision occurred, there being no crosswalk at that point.
But the child was an infant of tender years, incapable of either violating the ordinance or exercising ordinary care for his own safety.
The ordinance was not illustrative of whether the defendant would expect a child, incapable on account of his tender years of violating the ordinance, to be in the street at the locus of the collision. The charge was error.
10. The 12th ground of the amended motion for new trial was not error for the reasons assigned by the movant.
Judgment reversed. Felton, C. J., and Nichols, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334880/ | 92 Ga. App. 235 (1955)
88 S.E.2d 174
GAMMAGE
v.
THE STATE.
35716.
Court of Appeals of Georgia.
Decided June 15, 1955.
R. B. Williamson, for plaintiff in error.
CARLISLE, J.
The defendant was convicted of larceny after trust under an indictment charging that, "after having been entrusted by another, to wit, James D. Green, with $55.81 in money of the value of $55.81, for the purpose of applying the same for the use and benefit of James D. Green, the owner thereof and person so delivering it, said money having been delivered to said defendant for the purpose of paying the same on a note held by Atlantic Discount Company, said James D. Green having previously signed as security on said note, said Green then and there delivering said money to defendant upon an agreement that said defendant would deliver said money to John Ewing in order that the latter might turn over same to said Atlantic Discount Company, defendant did thereafter fraudulently convert the same to his, defendant's, own use." His motion for a new trial, based solely on the general grounds, was denied, and he has brought the present writ of error to have that judgment reviewed.
1. The offense of larceny after trust comprehends a relationship of trust, which must be proved as laid (Silvers v. State, 79 Ga. App. 223, 53 S.E.2d 388), and does not apply if the relationship between the prosecutor and the accused is merely that of debtor and creditor. Tant v. State, 81 Ga. App. 633 (59 S.E.2d 557); Huff v. State, 79 Ga. App. 717 (54 S.E.2d 446). And where, from all the evidence adduced upon the trial of one charged with larceny after trust of a stated sum of money, it appears without contradiction that the prosecutor and the accused entered into an agreement for the accused "to turpentine" a certain tract of timber belonging to the prosecutor, but located a considerable distance from the home of the accused; that the prosecutor agreed to help the accused secure an automobile by signing the conditional-sale contract on the automobile as security; that the prosecutor advanced the accused money from time to time, which was charged against the accused's turpentine *236 account, and this account was settled from time to time as the turpentine was produced; and that the money which the accused is charged with converting was "loaned" to the accused and charged against the accused's turpentine account the evidence is not sufficient to authorize a conviction of larceny after trust, notwithstanding the fact that the prosecutor instructed the accused to apply the money toward payment on the automobile, as the relationship between the prosecutor and the accused was that of debtor and creditor and no fiduciary relationship between them was established with reference to the money. See also, in this connection, Davis v. State, 38 Ga. App. 206 (143 S.E. 435); Jones v. State, 40 Ga. App. 535 (150 S.E. 450). The trial court erred, consequently, in denying the defendant's motion for a new trial, based solely on the general grounds.
Judgment reversed. Gardner, P. J., and Townsend, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334898/ | 227 S.C. 436 (1955)
88 S.E.2d 357
MRS. W.C. SEAGLE and IRMA S. HALL, Respondents,
v.
W. FRANK MONTGOMERY, RICHARD B. BOYKIN, and BARBARA H. BOYKIN, Appellants.
17036
Supreme Court of South Carolina.
July 20, 1955.
Messrs. C.T. Graydon, of Columbia, and Frank E. Rector, and Murchison & West, of Camden, for Appellants.
Messrs. J. Clator Arrants, of Camden, and William Elliott, of Columbia, for Respondents.
*437 July 20, 1955.
LEGGE, Justice.
Respondents brought this action to quiet title to a small triangular tract of wooded land, described in the complaint and in the quitclaim deed hereinafter mentioned as containing one-third of an acre, more or less, but found upon survey in the cause to contain 1.887 acres, lying between their property on the west and property of appellant Montgomery on the east. They allege that they and the late W.C. Seagle, who was the husband of the respondent Mrs. Seagle and the father of the respondent Mrs. Hall, have owned the tract in question and have held it in their possession for more than forty years; that about 1920 W.C. Seagle and Allen J. Boykin, who then owned the Montgomery tract, established an agreed line and erected a wire fence thereon, the line being the eastern boundary of the disputed tract; that the appellant Montgomery claims title by virtue of a quitclaim deed to him from the appellants Richard B. Boykin and Barbara H. Boykin dated March 8, 1952, which deed they allege constitutes a cloud upon their title; and they pray that they be declared the owners of the tract in question, that Montgomery be adjudged to have no interest *438 in it, and that the quitclaim deed be set aside and declared void. In their answer, appellants deny respondents' claim of ownership and possession and deny the allegations as to the establishment of the line. The case was referred to a special referee to take the testimony and report it to the court without findings of fact or conclusions of law; and upon the testimony so taken and the several plats hereinafter mentioned the matter was heard before the Honorable E.H. Henderson, Presiding Judge, from whose decree this appeal is taken.
The Seagle property was acquired by W.C. Seagle from S.F. Brasington in 1907, and was described in the deed as containing 93.6 acres. In February, 1908, it was surveyed for W.C. Seagle by W.R. Pinckney, whose plat dated February 17, 1908, shows the area is 123 acres, more or less. Upon the death of Mr. Seagle in 1938, the property passed by descent to the respondents.
The Montgomery property was part of a larger tract of 209 acres that was conveyed in 1938 by Elizabeth C. Boykin to E.C. Pearce, Jr., and in 1944 by the Master for Kershaw County to David R. Williams, who in 1946 conveyed 204 acres of it to Barbara H. Boykin and Richard B. Boykin. The two last mentioned conveyed 40.1 acres to the appellant Montgomery by deed dated August 2, 1950; and under date March 8, 1952, they executed a quitclaim deed conveying to him a triangular lot containing one-third of an acre, more or less, the deed reciting that "the above described lot of land is the westernmost corner of that tract of land conveyed to the grantors herein by deed of David R. Williams of date April 2, 1948 (sic), and recorded in the office of the Clerk of Court for Kershaw County in Book D-B, at page 559, and was intended to have been conveyed to the grantee herein by the conveyance first above mentioned".
In addition to the Pinckney plat before referred to, there were in evidence the following plats, all showing the line between the Seagle property and the Montgomery property:
*439 A plat of 285 acres, part of the lands of the estate of Col. James Chestnut, made by S.M. Boyle under date March 30, 1869;
A plat made by J.T. Gettys under date December 23, 1937, showing two tracts formerly the property of A.J. Boykin, one of them being the 209-acre tract that was later, in 1938, conveyed to E.C. Pearce, Jr.;
A plat of the two last mentioned tracts made in 1938 by Joseph Palmer, the legend indicating that as to the 209-acre tract it was traced from the Gettys plat of December 23, 1937;
A plat of the 40.1 acre Montgomery tract and a larger tract, also owned by Montgomery, adjoining it to the south, made by M.C. O'Cain under date June 10, 1950;
A plat of the western portion of the 40.1-acre Montgomery tract, made by M.C. O'Cain under date August 14, 1951; and
A plat of the disputed area, shown as containing 1.887 acres, made by F.H. Murray under date January 2, 1953, pursuant to order of the circuit court in the instant case.
The Boyle Plat, which was later followed by Gettys and Palmer in their surveys, and also the Pinckney plat, indicated that the disputed area lay within the Montgomery lands. The Murray plat, which began with a corner established by reference to the Boyle and Palmer plats, also showed the area in question as part of the Montgomery property. The two plats by O'Cain showed it as part of the Seagle lands.
The conveyance by Richard B. Boykin and Barbara H. Boykin to Montgomery dated August 2, 1950, to which we have referred, describes the land conveyed as "containing forty and one-tenth (40.1) acres, more or less, more particularly shown and described on a plat of the premises by M.C. O'Cain, surveyor, dated July 25th, 1950, and recorded in the office of the Clerk of Court for Kershaw County". The reference to July 25, 1950, as the date of the *440 plat is not explained in the testimony. Mr. O'Cain testified that he made two plats, both at Mr. Montgomery's request; the one by which Mr. Montgomery bought the property, and a later one made on August 14, 1951. The latter is in evidence, marked "Plaintiffs' Exhibit C"; the O'Cain plat of June 10, 1950, is marked "Plaintiffs' Exhibit B", but except for this notation on it the record does not show its introduction in evidence, or that there was anything introduced in evidence as "Plaintiffs' Exhibit B".
The learned circuit judge found as a matter of fact that continuously since 1908 the disputed area had been protected by a substantial enclosure, there being a wire fence along the eastern line that was later replaced by a new fence; and he held that respondents had acquired title to the disputed area by adverse possession. He also found as a fact that many years ago the boundary line between the Seagle lands and the Boykin (now Montgomery) lands had been agreed upon and established by the then owners, at the place where the fence was located.
As stated in their brief, appellants' twelve exceptions raise three questions, namely:
1. Did the plaintiffs-respondents establish title to the property in question by adverse possession?
2. Did the circuit judge commit error in finding that the boundary line as contended by the plaintiffs-respondents was established by agreement many years ago and that the agreement was binding on the present parties?
3. Should the plat drawn by Mr. Murray, the court-appointed surveyor, be approved and ownership of the property established in accordance therewith?
The issue of title by adverse possession being one of law, our factual review of it is limited to determination of whether there was any evidence reasonably sustaining the judgment of the lower court. Fogle v. Void, 223 S.C. 83, 74 S.E. (2d) 358; Phillips v. DuBose, 223 S.C. 224, 75 S.E. (2d) 56.
*441 Mrs. Seagle testified that ever since her husband acquired the property the small triangular area in question has been fenced on the east line, where it abuts on the Montgomery property; that it is a wooded area, and during the forty-five years since its purchase by her husband he and she have gotten wood and brush and straw from it and have cut a few trees for stacking hay; and that their tenants have used it. She recalled that about 1947, when the Boykin house on the adjoining tract had burned, Richard Boykin had discussed with her the location of the line between their properties, and that she had told him that the fence was the line, and he had made no question of it.
Her daughter, Mrs. Hall, testified that for at least forty years there has been a fence on the east line of the little tract in question; and that during that period the Seagles had cut haystack poles and had gathered straw there and had permitted their tenants to locate their pig pens there.
Mr. E.M. Workman, Mrs. Seagle's brother, who for some fifteen years had worked on the Seagle property, although he lived some miles away, testified that in 1936 there was an old fence on the east line of the area now in dispute, and that it was generally known throughout the community that this little wooded tract was part of the Seagle property; and that he had seen straw hauled from it and had himself cut two or three stack poles from it.
Mr. E.C. Pearce, Jr., who bought the Montgomery tract from Elizabeth C. (Mrs. Allen) Boykin in 1938, testified that at that time there was an old fence on the east line of the small tract approximately where the new fence now is; that in connection with his purchase he was to give a mortgage to the Federal Land Bank of Columbia, which required a plat; that he went with Mr. Gettys, the surveyor, to see Mrs. Seagle about the location of the division line, Mr. Seagle being ill at the time, and that Mrs. Seagle told them to "put the corner at or near a pine tree which stood right on the corner of the little patch of woods", which they did; *442 that some two or three months later she told him that she had made an error and that the fence on the east line of the wooded area was the division line between the properties; and that, although he did not have the plat or the mortgage changed, he accepted the fence as the line. As to the interview with Mrs. Seagle and the subsequent agreement with her as to the line, Mr. Pearce's testimony was corroborated by Mrs. Seagle.
Mr. Gettys, a witness for the appellants, testified that, according to his recollection, in making his plat he ran the division line according to information given him by Mr. Pearce.
Mr. M.C. O'Cain testified that he first surveyed the east line about 1947 for Dixie (Richard) Boykin; that there was an old wire fence on the line at that time; that he later made the two surveys, in 1950 and 1951, at Mr. Montgomery's request, and furnished him with the plats showing the line as contended for by respondents; and that Mr. Montgomery not only made no question of the line, but put a new fence on it.
Pab Boykin, a colored man sixty years old, testified that he had known the Montgomery property for forty years or more; that in 1916 Mr. Allen Boykin put a fence on the east line of the little tract in question, and that, after Mr. Montgomery had bought his property, Mr. Montgomery had the witness tear down the old fence and put up the new one on the same line.
Lucy Wade, a colored woman who had worked for Mr. Allen Boykin when he owned the Montgomery tract, testified that the fence on the east line of the area in question had been put there forty or more years ago; and that Mr. Boykin "worked" his land up to the fence, and so did Mr. Pearce when he owned the Montgomery tract, but that they never went beyond it.
Charlotte Salmond, a colored woman who had lived for twenty years on the Montgomery tract when it was owned *443 by Mr. Allen Boykin, testified that the old fence was on the line when she was a child, and that it was considered the line between the Boykin and the Seagle properties.
Section 10-2425 of the 1952 Code provides as follows:
"For the purpose of constituting an adverse possession by a person claiming title not founded upon a written instrument or a judgment or decree, land shall be deemed to have been possessed in the following cases only:
"(1) When it has been protected by a substantial enclosure; and
"(2) When it has been usually cultivated or improved."
Granting for the purposes of the issue now under consideration that, as appellants contend, respondents have no color of title to the disputed area, the testimony to which we have referred is amply sufficient to warrant the finding that the disputed area has been "protected by a substantial enclosure" since 1908. That the fence may have been erected by the adjoining landowner does not deprive respondents of the benefit of the statute; on the contrary, such fact would emphasize his recognition of their claim. Judge Henderson's conclusion that respondents have acquired title by adverse possession is reasonably supported by the evidence, and must, therefore, be affirmed.
Appellants' first question having been answered in the affirmative, discussion of the others becomes unnecessary.
Affirmed.
BAKER, C.J., and STUKES, TAYLOR and OXNER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334885/ | 92 Ga. App. 80 (1955)
88 S.E.2d 39
DAVISON-PAXON COMPANY
v.
BURKART et al.
35542.
Court of Appeals of Georgia.
Decided May 2, 1955.
Rehearing Denied May 23, 1955.
*82 Houston White, Emory A. Schwall, David A. Heuett, for plaintiff in error.
Helen Harper, Heyman & Abram, contra.
NICHOLS, J.
We have for consideration the question whether or not the trial judge erred, as held by the Appellate Division of the Civil Court of Fulton County, in sustaining the plaintiff's motion to dismiss the defendant's motion to set aside the default judgment. The record shows that Mrs. Burkart, codefendant, was served personally, and the return of service as to J. S. Burkart was as follows: "I have this day served the defendant, Mr. J. S. Burkart, 1069 N. Pelham Rd., by leaving a copy of the action and summons at his most notorious place of abode in this county. Delivered same into hands of Mrs. Burkart, a wife (describing her) domiciled at the residence of defendant." These facts are admitted by the defendant, J. S. Burkart. The service was valid in an action at law. In Burbage v. American National Bank, 95 Ga. 503 (20 S.E. 240), it was held: "When one and his family are temporarily absent from the city and county of his permanent residence, by reason of the prevalence of an epidemic, he is still subject to suit by ordinary action in the superior court of that county, and service of process upon him may be effected by leaving a copy of the same at his residence during such absence." In Moye v. Walker, 96 Ga. 769 (22 S.E. 276), such a service was upheld although at the time the defendant was temporarily absent from his home in attendance upon a sick wife elsewhere and never received or saw the summons. The papers here were delivered into the hands of the defendant's wife at his residence. She was in law a person qualified to accept them, as good faith would naturally be expected of her. See Cathcart v. Cincinnati, Hamilton &c. Ry. Co., 108 Ga. 253 (2) (33 S.E. 875). Notwithstanding the defendant's admission that he was legally served, we have thought it pertinent to set forth above *83 the extent to which the law sanctions service which is not necessarily personal.
In order to set aside a default judgment, the defendant must have not only a meritorious defense but a legal excuse for his non-appearance. Code § 110-404, as amended by the act of 1946 (Ga. L. 1946, pp. 761, 778), appearing in Code (Ann. Supp.) as § 110-404. "Matters purely defensive and going in denial of the plaintiff's right to recover do not afford grounds to set aside a judgment." Thomas v. Bloodworth, 44 Ga. App. 44 (2) (160 S.E. 709); Morris v. Morris, 82 Ga. App. 384, 389 (61 S.E.2d 156). When a party has been afforded an opportunity to be heard, the court cannot suspend or vacate its judgment merely to let in a defense which should have been offered before the judgment was entered. Burt Building, Inc. v. Atlanta Trust Co., 181 Ga. 274, 283 (182 S.E. 187). See also Dougherty-Little-Redwine Co. v. Hatcher, 169 Ga. 858, 863 (151 S.E. 796). "Whenever a motion is made to vacate a judgment, even during the term at which the same was rendered, the movant must allege and prove some reason good in law why he had failed to make his defense at the time required." Florida Central R. Co. v. Luke, 11 Ga. App. 290, 293 (75 S.E. 270); Morris v. Morris, supra. While the Code, § 110-404, as amended, gives to the trial judge a broad discretion in setting aside a default judgment, this does not mean that he may act arbitrarily but that he must exercise a sound and legal discretion. He may not open a default capriciously or for fanciful or insufficient reasons. Brucker v. O'Connor, 115 Ga. 95, 96 (41 S.E. 245); Smith v. Aultman, 30 Ga. App. 507, 515 (118 S.E. 459). "The law seeks an end of litigation; and when parties have had full opportunity to plead and be heard, and a judgment is entered which in its nature ends the controversy, that judgment should not be disturbed, even while in the breast of the court, except in the exercise of sound legal discretion where it is necessary to do it in order to promote justice." Cahoon v. Wills, 179 Ga. 195, 196 (175 S.E. 563); Cofer v. Maxwell, 201 Ga. 846, 848 (41 S.E.2d 420).
In the state of the record we perceive no sound and legal reason for holding that the trial court erred in sustaining the plaintiff's motion to dismiss the defendant's motion to set aside the default judgment. Here we have a case where the defendant *84 was legally served at his residence. He admits it; but we are asked, in effect, to hold that, where a default judgment is rendered against a defendant who was unaware of the valid service, the judgment should be set aside simply upon a showing that he had a meritorious defense, even though his response to the summons was frustrated by his own wife. The prompt and proper functioning of the courts can not be thus impeded. To accept such a view would make it possible for legal service to be emasculated by anyone who felt enough interest in the person served in terms of the law to secretly withhold from him the summons of the court. The defendant's grievance, if any, is properly not against the court which rendered the default judgment, but against the person, his wife, who brought about his misfortune by preventing him from filing what he conceives to be a good defense to the original suit. See Morris v. Morris, 76 Ga. 733; Lanier v. Nunnally & Co., 128 Ga. 358, 360 (57 S.E. 689).
It is strongly argued in the brief of counsel for the defendant in error that the trial judge did not exercise his discretion in sustaining the motion to dismiss. The motion to dismiss was directed to the facts alleged in the defendant's motion to set aside the default judgment. If, as we have ruled, the defendant showed no legal reason for reopening the default, it was not necessary or proper that the trial judge exercise any discretion as to whether or not any meritorious defense was shown. If the court had reached any conclusion upon considering the motion to dismiss other than that the defendant was not legally excusable, and had overruled the plaintiff's motion to dismiss, it would have been an abuse of discretion. Where the allegations of the motion to reopen the default show no sound and legal reason for doing so, it is not a matter for the exercise of discretion, but a matter of law that the defendant's motion should not prevail. Butler & Co. v. Strickland-Tillman Hardware Co., 15 Ga. App. 193 (2) (82 S.E. 815).
It follows from what is said above that the Appellate Division of the Civil Court of Fulton County erred in reversing the judgment of the trial court with direction that the motion to set aside the default be set down for a hearing on its merits.
Judgment reversed. Felton, C. J., and Quillian, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334888/ | 92 Ga. App. 328 (1955)
88 S.E.2d 569
TIFTON BRICK & BLOCK CO.
v.
MEADOW.
35688.
Court of Appeals of Georgia.
Decided June 29, 1955.
*330 Seymour S. Owens, Robert R. Forrester, for plaintiff in error.
Jere Field, John T. Ferguson, contra.
QUILLIAN, J.
The verdict was not without evidence to support it.
1. Ground 4 of the amended motion complains that, over the objection that the witness was not expert, and his testimony was irrelevant to the issues of the case, a patrolman was permitted to testify that he examined the truck at the scene of the collision, that one of its dual tires on the rear was flat, and that he did not think it was safe to operate.
An expert witness is one who through education, training, or experience has peculiar knowledge concerning some matter of *331 science or skill to which his testimony relates. Code § 38-1710; Doster v. Brown, 25 Ga. 24 (2) (71 Am. D. 153); White v. Clements, 39 Ga. 232 (5).
Our courts recognize any person whose official duties as a public officer require that he have special training or experience concerning certain matters of skill or science as an expert in reference to those matters.
However, if aught was lacking in qualifying the witness as an expert on direct examination, it was supplied in the cross-examination, when the witness was thoroughly interrogated as to his experience in observing vehicles of the type in question when traveling with flat tires.
2. Special ground 5 of the motion for new trial complains that an officer was allowed to testify that the plaintiff told him that he was traveling at a certain speed. The objection interposed by the defendant was that the statement of the plaintiff to the officer was a self-serving declaration.
The witness was thoroughly examined on cross-examination as to the admission made by the plaintiff in reference to the speed he was driving on the occasion of the collision.
The admission and the statement objected to were connected parts of the same conversation, and explanatory of each other. The court committed no error in admitting the whole conversation. Mineola Mill Co. v. Griffin, 18 Ga. App. 668 (2) (90 S.E. 360).
A statement that otherwise would be objectionable on the ground that it is a self-serving declaration may be admissible for a variety of reasons. It may be admissible as a part of a conversation some other part of which has been introduced by the opposite party to the case. It may constitute a part of the res gestae of the transaction or occurrence to which it pertains. It may be offered for the purpose of showing that, while it was of such nature as to require a denial, it was made in the presence of the opposite party and was not denied by him. Miller v. State, 73 Ga. App. 810 (4) (38 S.E.2d 180).
Where, in the instant case, the evidence shows that the plaintiff was painfully injured in a collision of two automobiles, and according to the testimony of a witness was not able to walk for some time thereafter, a statement made by him to an officer *332 about fifteen minutes after the collision concerning the speed at which he was traveling we think was admissible as part of the res gestae of the occurrence.
3. Grounds 6, 7, 8, and 19 of the amended motion for new trial present the contention that evidence as to the commissions earned by the plaintiff as a traveling salesman was inadmissible to show either the amount of loss of earnings sustained by him between the time he was injured and the time of trial, or the amount of damages to which he was entitled by certain injuries that he alleged to be permanent and of such nature as to reduce his capacity to work and earn money.
In support of this, in his very splendidly prepared brief skilled counsel cites numerous decisions holding that prospective profits from business adventures are generally too remote to be recovered as damages in suits sounding either in contract or tort.
But the cases cited do not relate to the ability of a salesman to earn certain commissions in that field of endeavor, though he worked entirely on a commission basis. In this connection, it should be remembered that the earnings of one skilled in any particular vocation are not dependent upon the profits earned in any one business enterprise. A salesman who is paid a percentage of his gross sales, like a lawyer, doctor, or other professional man, can show his ability to labor and earn only by proof of what his average earnings were for a reasonable period prior to the time such evidence is offered. That a salesman, or other person working for commissions or fees, has up to the time that he is injured earned a certain amount, and thereafter has, on account of incapacity to work resulting from the injury, been able to earn less, is evidence both of the amount of the loss of earnings for the period of time of the injury and the time of trial, and if such injuries be shown to be permanent, the probable reduction in his earning capacity. The rule is stated in Southwestern Railroad Co. v. Vellines, 14 Ga. App. 674 (2) (82 S.E. 166), and Western & Atlantic R. Co. v. Sellers, 15 Ga. App. 369 (2) (83 S.E. 445).
4. Grounds 9 and 10 of the amended motion for new trial were abandoned.
5. Ground 11 of the amended motion for new trial complains that a doctor who examined the plaintiff was permitted to testify that he did not think that the plaintiff was the malingering type. *333 The only objection interposed by the defendant's counsel was that the doctor was not an expert as to character, and that the evidence was not relevant.
One not an expert in any field may testify as to traits of character he has observed in another, such evidence not being a matter requiring special skill or training.
The testimony of a physician that the witness did not "give any evidence of being a malingerer" is admissible. Georgia Ry. & Power Co. v. Howell, 28 Ga. App. 798 (7) (113 S.E. 101).
The evidence was material to the issues made by the pleadings and evidence.
Special ground 12 assigns error on the refusal to permit the plaintiff's witness to answer a question propounded to him on direct examination, but does not disclose what the witness was expected to testify. The ground is incomplete.
6. Ground 13 assigns error because the trial judge stated that after the trial began an amendment was offered by the defendant. It would have been better practice for the court not to have mentioned the time when the amendment was offered, but this was not reversible error for any reason assigned by the movant.
7. Grounds 14, 15, 16, and 17 of the amended motion allege that the court erred in giving the jury certain instructions in reference to certain traffic regulations. The excerpts from the charge assigned as error were quoted.
The specific exceptions to these charges were, not that they presented abstractly incorrect statements of the law, but that they instructed the jury that certain violations of the traffic laws would constitute negligence on the part of the defendant, and did not inform the jury that the same acts would be negligent if committed by the plaintiff. The charges were excepted to on the further ground that there was no evidence in the record making issues as to whether the defendant had violated the traffic laws referred to in the quoted excerpts. "Where an extract from the charge of the court states a complete proposition and is correct in itself, it is not subject to exception merely because of failure to add something else to it. The exception should be to the omission and not to the instruction given. This ruling applies to the instruction in this case that `Remote or speculative or possible damages are not to be allowed in considering the maintenance *334 and operation of the lines or poles by the company', which instruction the power company concedes is correct `as far as it goes', while contending that it does not go far enough. The language quoted does not exclude the proposition which it is contended should have been given with it." Georgia Power Co. v. Chapman, 46 Ga. App. 582 (3) (168 S.E. 131).
If the excerpts from the charge were correct, the ground did not properly raise the question of the omission of the court to give additional instructions to the jury as to the plaintiff's duty to obey the traffic laws.
None of the grounds sets out or otherwise discloses the evidence that was adduced upon the trial in reference to the defendant's violation of or obedience to the traffic laws. Special ground 3 is not complete and understandable within itself, and therefore cannot be considered. It assigns error upon an excerpt from the charge, for the alleged reason that it was not authorized by the evidence, but none of the evidence is set out in the ground or attached as an exhibit thereto. See Beavers v. State, 33 Ga. App. 370 (2) (126 S.E. 305); Georgia-Florida Motor Lines v. Slocumb, 45 Ga. App. 204 (3) (164 S.E. 166). None of the grounds of the motion for new trial 14-19 inclusive contains an averment that instructions in reference to the plaintiff's duty to comply with the statutes were not elsewhere given in the court's general charge to the jury. The rule is stated in the case of Jones v. Knightstown Body Co., 52 Ga. App. 667, 669 (184 S.E. 427): "A ground excepting to the refusal of the court to give a charge on timely written request is too general to be considered, and not sufficient and complete, where it is not alleged that such requested instruction was pertinent to the issues and applicable under the pleadings and evidence, and where it is not shown that the principle of law therein embodied was not covered by the court in the general charge. Wilkes v. State, 16 Ga. App. 185 (4) (84 S.E. 721)." Harris v. State, 152 Ga. 199 (3) (108 S.E. 781); Howard v. Georgia R. Co., 25 Ga. App. 636 (4) (104 S.E. 26).
8. Ground 18 complains that the court excluded from the evidence a letter written by one of the defendant's witnesses, a physician, to the plaintiff's counsel. There was no issue as to whether the letter had been written by the doctor or transmitted in regular course through the mails. The witness merely identified *335 the letter by placing his initials on it, but, so far as appears from the ground, did not testify that what appeared in it was true. The court's ruling was correct. Moreover, if it had been error, the error would have been harmless since the record shows that the witness had already testified to the same facts as those related by him in the letter.
9. The 20th ground asserts that the verdict for $10,000 was excessive. There was evidence that the plaintiff sustained injuries of a permanent nature and suffered considerable pain. Code § 105-2015; Hotel Dempsey Co. v. Miller, 81 Ga. App. 233 (5) (58 S.E.2d 475); Western & Atlantic R. v. Burnett, 79 Ga. App. 530 (7) (54 S.E.2d 357).
Judgment affirmed. Felton, C. J., and Nichols, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334899/ | 92 Ga. App. 96 (1955)
88 S.E.2d 217
JOHNSON
v.
HOWARD.
35581.
Court of Appeals of Georgia.
Decided May 6, 1955.
Rehearing Denied May 31, 1955.
*100 R. F. Schuder, Wheeler, Robinson & Thurmond, for plaintiff in error.
Ed Quillian, Jeff C. Wayne, contra.
CARLISLE, J.
1. Of the renewed general and special demurrers to the petition as amended, counsel for the defendant has, in this court, argued only the special demurrer, which attacked the petition as amended for "multifariousness" and "duplicity," in seeking actual damages to the plaintiff's property and also punitive damages in one and the same count. The other demurrers, which were not argued or generally insisted upon in this court, will be treated as having been abandoned.
2. When a transaction partakes of the nature of a contract and of a tort, the party complaining may waive the one and rely solely upon the other (Code § 105-105; Perdue v. Harwell, 80 Ga. 150, 4 S.E. 877); and "while, as a general rule, allegations of fact are to be construed most strongly against the pleader, yet, in the absence of [a proper] special demurrer, where the facts alleged in a petition are such as would be proper and adequate to support one form of action, but inadequate, although appropriate, to another form of action, and where the petition is ambiguous to the extent that the pleaders' intention is not clearly manifest as to which form of action is relied upon, the courts, in endeavoring to ascertain the plaintiff's intention, will prima facie presume that his purpose was to serve his best interest, and will construe the pleadings so as to uphold and not to defeat the action. Stoddard v. Campbell, 27 Ga. App. 363 (108 S.E. 311); Moore v. Standard Accident Ins. Co., 48 Ga. App. 508, 512 (2, 3) (173 S.E. 481)." Royal v. Byrd, 51 Ga. App. 397 (180 S.E. 520). Under an application of this rule of construction, as no proper special demurrer was lodged against the petition, it is manifest from the allegations and prayers that the plaintiff in the instant case is seeking to recover for the tortious acts of the defendant landlord in wilfully and wantonly evicting the plaintiff before the expiration of his term of lease, in damaging certain items of the plaintiff's furniture in evicting him, and for compensation for the plaintiff's wounded feelings resulting from or attendant upon the defendant's tortious acts.
The defendant's special demurrer attacked the petition as duplicitous in the measure of damages sought. Such a demurrer *101 does not reach the question of the duplicity of causes of actions nor force an election of remedies, since, being a critic, the special demurrer must itself be free from imperfections and put its finger squarely upon the defect in the petition which it seeks to remedy. Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308, 314 (58 S.E. 524). Since, under the rule of construction stated above, the petition is to be treated as one seeking to recover in tort and there are allegations of aggravation, there is no duplicity in the measure of damages sought, and the trial court did not err in overruling the special demurrer, based upon such ground, to the petition. See, in this connection, Real Estate Loan Co. v. Pugh, 47 Ga. App. 443 (1) (170 S.E. 698), where it was held that, "Where a landlord, without the tenant's consent and before the expiration of the term, enters upon the rented premises without authority of law and forcibly evicts the tenant and rents the premises to another, and in so doing takes possession of the tenant's effects, and in moving them damages them, the landlord thereby commits an inexcusable trespass against the tenant, whereby the tenant's home and abode is broken up and destroyed. In a suit by the tenant against the landlord to recover damages for such tortious eviction, where the evidence authorizes the jury to infer that the tortious act of the landlord in evicting the tenant was attended with such aggravating circumstances, the jury is authorized to find a sum in punitive damages, or damages for compensation for the wounded feelings of the tenant. Civil Code (1910), § 4503 [Code § 105-2002]; Georgia Railway & Electric Co. v. Baker, 125 Ga. 562 (54 S.E. 639, 6 L. R. A. (NS) 103, 114 Am. St. Rep. 246, 5 Ann. Cas. 484); Savannah Electric Co. v. Badenhoop, 6 Ga. App. 371 (65 S.E. 50); Lipscomb v. Watkins, 28 Ga. App. 185 (2) (110 S.E. 502)."
3. To render one man liable in trespass for the acts of another, it must be made to appear either that they acted in concert, or that the act of the party sought to be charged ordinarily and naturally produced the acts of the other (Brooks v. Ashburn, 9 Ga. 297; Burns v. Horkan, 126 Ga. 161, 165, 54 S.E. 946; Markham v. Brown, 37 Ga. 277, 281, 92 Am. D. 73); and where, upon the trial of a case brought by a tenant against his landlord for trespass, it is made to appear from the evidence that the defendant landlord, without the tenant's consent, and before *102 the expiration of the tenant's term, rented the premises to a third person and authorized such person to enter upon the premises without authority of law, and such person does as he is authorized and in doing so takes possession of certain items of furniture and in moving those items from the dwelling damages them and leaves those items where they are exposed to the elements and damaged further, the jury is authorized to find the defendant landlord guilty of trespass and of damaging the plaintiff tenant's property, although the evidence be in conflict on all the material issues. Real Estate Loan Co. v. Pugh, supra. And where, from the evidence, the jury is also authorized to infer that the tortious acts of the landlord, in causing the tenant's eviction and the damage to his property, were attended with aggravating circumstances, the jury is authorized to find a sum in punitive damages, or damages for compensation for the wounded feelings of the tenant, in addition to such sums as are found on account of the trespass and damage to the tenant's property. Real Estate Loan Co. v. Pugh, supra. And we think that, when the landlord, on the night the tenant discovered the trespass and found his furniture moved out of his dwelling and exposed to the elements, slammed his door in the tenant's face, refusing to discuss the matter with the tenant or make any effort to protect the tenant's property from further damage, it is such an aggravating circumstance, from which the jury might infer malice and award punitive damages, especially when the landlord was fully aware that the tenant's term had not expired and he had no legal cause to evict him. The evidence authorized the verdict for the tenant in the amount of $900, which was within the range of the damages sought, and there is no merit in the general grounds of the motion for new trial.
4. In view of what has been said and ruled in division 3 of this opinion, it appears that special grounds 1, 2, and 3 of the motion for new trial, which complain of the trial court's charges on the defendant's responsibility for the act of the third person in entering the premises, the defendant's liability for the act of such third person in damaging the plaintiff tenant's property, and the defendant's liability for punitive damages, are without merit.
5. In special ground 4, complaint is made that the verdict is *103 excessive and the result of bias. As we have said, properly construed, the action is one in tort. The evidence is such as to have authorized the jury to find aggravating circumstances attendant upon the tort and to award punitive damages, the measure of which is the enlightened conscience of the jury. The plaintiff sought $1,700 damages for the trespass, damage to his property, and compensation for his wounded feelings; the verdict was for $900. It does not appear from the record that the verdict was the result of prejudice, bias, corruption, or gross mistake, and this court will not set it aside as excessive (Holtsinger v. Scarbrough, 71 Ga. App. 318, 30 S.E.2d 835); this ground of the motion for new trial is not meritorious.
The trial court did not err in overruling the special demurrer to the petition or err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334892/ | 227 S.C. 396 (1955)
88 S.E.2d 254
PEE DEE FARMS CORPORATION, JOSEPH HOLLIDAY and JOHN M.J. HOLLIDAY, Respondents,
v.
ED E. JOHNSON, Appellant.
17025
Supreme Court of South Carolina.
July 5, 1955.
Messrs. T. Kenneth Summerford and John D. Whisenhunt, of Florence, for Appellant.
Messrs. Suggs & McCutcheon, of Conway, for Respondents.
*397 July 5, 1955.
TAYLOR, Justice.
This case was tried on or about the fourth day of February, 1953, in the Court of Common Pleas for Horry County, the Honorable J.B. Pruitt, Presiding Judge. At the conclusion of the testimony, motion was made by plaintiffs (respondents here) for a directed verdict which the Court took under advisement, submitting the issues to a jury. The jury was unable to reach a verdict, and the Court declared a mistrial and thereafter, on July 3, 1953, issued an order granting plaintiff's motion for a directed verdict.
Notice of intention to appeal to the Supreme Court was duly served, but the appeal not having been perfected, plaintiffs gave notice of motion in the usual form to dismiss the appeal. After hearing the matter, Judge Grimball, on November 9, 1953, issued an order dismissing the appeal.
Thereafter, a hearing was had pursuant to notice of motion to set aside the order of November 9, 1953, by Judge Grimball, resulting in an order, April 20, 1954, refusing the defendant's motion; and he duly served notice of intention to appeal to the Supreme Court from this order.
Thereafter, defendant gave notice of motion for rehearing of its motion to set aside the order of Judge Grimball, dated November 9, based upon after discovered evidence, returnable before Judge Grimball in Charleston. This motion was refused by Judge Grimball in an order dated June 28, and notice of intention to appeal from this order was given June 28, 1954.
Although the record is not clear thereabout, it appears to this Court that the only appeal which was ever perfected *398 was from the order of June 28, 1954; in reality, however, the appeal challenges all orders to which reference is made.
The exceptions are seven in number and charge error to the Court:
"One, in that the Court erred in holding that Appellant was bound to a strict adherence to the rules laid down for appeals to the Supreme Court, without regard for statutory law, Supreme Court Opinions, testimony, and affidavits before him.
"Two, that the Court erred in failing to set aside his Order of dismissal after opposing counsel had admitted by affidavit that an extension of time to perfect the appeal had been granted the defendant-Appellant.
"Three, that his Honor erred in his conclusion in his Order dated April 20, 1954, that said Order was based on a case cited therein; in that the said case has no application to the issues.
"Four, that the Court erred in failing to grant relief in view of the fact that the affidavit and evidence failed to show that the defendant received written notice as required by the laws of South Carolina.
"Five, that the Court erred in failing to grant relief to the defendant when the evidence clearly showed that the defendant was without counsel at the time the Order of dismissal was obtained.
"Six, that the Court erred in failing to grant relief under Section 10-1213 of the 1952 Code of Laws for South Carolina.
"Seven, that the Court erred in failing to grant relief under Section 10-1213 of the 1952 Code of Laws for South Carolina upon rehearing, when the letter of L.B. Dawes to the defendant, dated January 14, 1954, showed that the defendant had been misled by his former counsel."
In the view of this Court, none of these exceptions is meritorious. It should be borne in mind that upon presentation of motions such as those involved in the *399 various proceedings had in this case, the Judge before whom the matter is heard is the Judge not only of the law but of the facts; and as to those exceptions which impute error to the hearing Judge as to facts, having by his order been resolved adversely to appellant, the issue is closed in so far as this Court is concerned. It is unquestioned that under the rules of the Circuit Court, and of this Court, that the Court below had jurisdiction to entertain motions to dismiss where the noticed appeal had not been perfected. See Section 7-409, Code of Laws for South Carolina, 1952; State v. Johnson, 52 S.C. 505, 30 S.E. 592; State v. Atkins, 169 S.C. 170, 168 S.E. 540; and Rylee v. Marett, 121 S.C. 366, 113 S.E. 483, the last named case holding that where a case and exceptions are not filed as required by Rule 49 of the Circuit Court that the Circuit Court should dismiss the appeal. See also, McDonald v. Palmetto Theaters, 196 S.C. 38, 11 S.E. (2d) 444, to the effect that after an appeal is perfected and docketed under Rule 1 of this Court the Circuit Court jurisdiction ceases, the implication being clearly that before perfection and docketing the Circuit Court has jurisdiction.
From the record, it clearly appears that due notice was given of motion to dismiss the appeal and that service was accepted by appellant's then attorneys. It likewise appears from the certificate of the Honorable J.B. Westbrook, Clerk of the Supreme Court, that no return had been filed, neither had the case been docketed in his office.
As previously observed, any differences in the evidence relating to factual matters were properly for the determination of the hearing Judge and whether or not the hearing Judge correctly stated the case upon which his ruling was predicated is of no consequence here. It having been made to appear that the appeal was not perfected as required by the rules of both this and the Circuit Court and by statute, it follows that the lower Court was correct in dismissing the appeal.
*400 It is accordingly ordered that all exceptions be and they are hereby overruled and the appeal dismissed.
STUKES, OXNER and LEGGE, JJ., concur.
BAKER, C.J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334945/ | 659 S.E.2d 900 (2008)
ALLEN
v.
The STATE.
No. A07A2280.
Court of Appeals of Georgia.
March 26, 2008.
John W. Sherrer Jr., Vienna, for Appellant.
Denise D. Fachini, Dist. Atty., Cheri Lee Nichols, Asst. Dist. Atty., for Appellee.
BARNES, Chief Judge.
Following the denial of his amended motion for new trial, Feronte Jamal Allen appeals his convictions for three counts of aggravated assault, possession of a handgun by a person under age eighteen, carrying a concealed weapon, and carrying a pistol without a license. He contends that he was denied a fair and impartial trial because one of the jurors failed to disclose that she knew Allen and that the evidence was insufficient to sustain his convictions. For the reasons that follow, we affirm.
1. In challenging the sufficiency of the evidence, Allen requests that this Court consider and essentially weigh the physical evidence, the identification evidence, his lack of motive, and the circumstantial evidence presented at trial. On appeal, however, this *901 Court only determines evidence sufficiency. Moreover, we
view[] the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility but only determine whether under the standard of Jackson v. Virginia[, 443 U.S. 307, 323, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)] the evidence is sufficient to support a verdict of guilt. Conflicts in the testimony of the witnesses are for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the crime, the jury's verdict will be upheld.
(Footnotes omitted.) Reyes v. State, 250 Ga. App. 769, 770, 552 S.E.2d 918 (2001)
So viewed, the evidence demonstrates that an altercation broke out at a local night club, the Clubb, between two groups of boys. Allen, then sixteen, was in one of the groups. A deputy with the Crisp County Sheriff's Department was dispatched at around midnight to the Clubb after receiving a report of shots being fired. A witness approached the officer and told him that "Tey" did the shooting and was wearing a blue coat with possibly "some red in it." "Tey" is a nickname used by Allen. The same witness testified at trial that he was approximately four feet from Allen when Allen "pull[ed] out a rusty gun and started shooting." Three individuals were hit by gunshots. Following the shooting, the officer located Allen at his home. He advised Allen that he needed to come down to the police station because he had been identified as the "shooter" at the Clubb, and that "there may be a gun residue kit done on him." Allen responded that he and a friend had shot guns earlier in the day.
The officer recovered Allen's blue coat with red and white stripes from Allen's friend's house, which was across the street from the Clubb. The friend testified that Allen came to his house after the shooting and asked him to keep his coat. This witness also testified that earlier that day, he saw Allen with a gun, which Allen kept hidden beneath his clothes. When the fight started at the Clubb, the witness saw Allen shoot three times into a group of boys who rushed him. Another witness also testified that he saw Allen with the same gun on the day of the shooting, and Allen said if anything happened at the Clubb he was going to be "[r]eady to shoot." Two witnesses identified a gun admitted into evidence as the gun Allen had with him and used the night of the fight. The victims could not identify who shot them.
Although there was conflicting testimony from other witnesses about who among the group of fighters actually pulled the trigger, how many guns were present, and how many shots were fired, "[t]he testimony of a single witness is generally sufficient to establish a fact pursuant to OCGA § 24-4-8, and it is the function of the jury to evaluate the credibility of witnesses. [Cit.]" Hill v. State, 282 Ga.App. 743, 744(1), 639 S.E.2d 637 (2006). As noted before, this Court will not weigh the evidence or assess witness credibility, and we "will not second-guess what evidence the jury chose to believe [where] there is some competent evidence on each element necessary to prove the state's case," as there clearly was here. (Footnote omitted.) Brown v. State, 246 Ga.App. 517, 518(1), 541 S.E.2d 112 (2000). Construing the evidence in the light most favorable to the verdict, any rational trier of fact could have found Allen guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, supra.
2. Allen also contends that he was denied a fair and impartial trial because during voir dire one of the jurors failed to disclose that she knew Allen. See OCGA § 15-12-133. The record reflects that the juror was the mother of Allen's brother's girlfriend, and the couple lived with her. While Allen was awaiting trial he would call his brother at the juror's home, and she answered the telephone on several occasions. The juror testified at the motion for new trial hearing that she would sometimes speak with Allen when he called from jail, but that she had never met him in person and was not familiar with the details of the case before the trial. She also testified that she did not respond affirmatively when asked during voir dire if she knew Allen because she felt that *902 she did not know him personally, and that his calling her house did "not really" affect her verdict in the case.
A defendant is entitled to be tried by a fair and impartial jury, and to exercise knowledgeable challenges in the pursuit of this judicial ideal. It does not follow, however, that every incorrect answer given on voir dire calls inexorably for a new trial; the question of bias and resultant prejudice remains to be determined. . . . Although the question of juror impartiality is a mixed question of law and fact, the trial court's findings of impartiality will be set aside only where "manifest" prejudice to the defendant has been shown.
(Citations and punctuation omitted.) Jones v. State, 247 Ga. 268, 270(2)(b), 275 S.E.2d 67 (1981).
Pretermitting whether the juror would have been disqualified based on her relationship with Allen,[1] the testimony of the juror at the new trial hearing did not reveal that she had any bias for or against Allen, or establish that the telephone conversations affected her verdict in this case. "Even if this juror deliberately answered falsely it has not been shown that [s]he had an evil motive or that [s]he acted otherwise as one of the twelve jurors than with the required impartiality." Geiger v. State, 129 Ga.App. 488, 494(2), 199 S.E.2d 861 (1973). "When error is assigned, it must be shown that [Allen] was in some way injured, or that there was an advantage to the state." (Punctuation omitted.) Id. at 495, 199 S.E.2d 861. Allen has shown neither.
Under these circumstances, the trial court did not abuse its discretion in denying Allen's motion for new trial on this basis.
Judgment affirmed.
SMITH, P.J., and MILLER, J., concur.
NOTES
[1] See OCGA § 15-12-163(b)(4). Challenges for cause include "[t]hat the juror is so near of kin to the prosecutor, the accused, or the victim as to disqualify the juror by law from serving on the jury." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334927/ | 228 S.C. 17 (1955)
88 S.E.2d 788
THE STATE, Respondent,
v.
A.M. GOFF, Appellant.
17051
Supreme Court of South Carolina.
August 10, 1955.
*18 Messrs. Epps & Hoffman, of Conway, for Appellant.
*19 J. Reuben Long, Esq., Solicitor, of Conway, for Respondent.
August 10, 1955.
BAKER, Chief Justice.
This appeal is from a sentence imposed by the Circuit Court upon appellant, after trial before the Court, upon a charge of contempt. The sentence imposed was confinement in the county jail for a period of thirty days.
At the September, 1954, term of the Court of Common Pleas for Horry County, appellant here was a co-defendant with his wife in a civil case tried during that term before Honorable Bruce Littlejohn, Presiding Judge, and a jury. On the second day of the trial the arguments of counsel were completed just prior to the recess for lunch. During this intermission, and prior to the Judge's charge to the jury, a *20 controversy arose between appellant and one Dutch Mishoe, a witness who had testified for the plaintiffs in the civil action against appellant and his wife. The witness was under subpoena in that case.
The controversy with appellant was reported to the Presiding Judge, and after the jury had rendered a verdict in the civil case, the witness, Dutch Mishoe, was duly sworn in open court in the presence of appellant and his attorney, and upon examination by the Court, testified as follows:
"Q. Mr. Mishoe, state in open court what you told me this afternoon? A. I was sitting on the back door steps, and he come around there.
"Q. Who came around there? A. Adger Goff come and said he would kick me out doors, and he cursed me for a black son-of-a-bitch, and said what he would do for me if I went to Bayboro again.
"Q. When was that? A. This evening.
"Q. Which end of the courthouse? A. Down here at the door towards the jailhouse.
"Q. What were you doing at the time? A. Sitting in the door steps.
"Q. Were other persons present? A. Yes, sir.
"Q. Who was there? A. Archie Rabon and O.H. Hardee and John Baker.
"Q. Did he make any statement to you in reference to your testifying in this case as to what you said? A. He said I told a lie on his wife. I have not told a lie on his wife. I have not told a lie on his wife or no one else. He said he would kick me off the doorsteps and he would pay for it, that he had a thousand dollars in his pocket, and he showed it to me."
Upon this testimony appellant was ordered by the Court to show cause at the ensuing October term of the Court of General Sessions why he should not be held in contempt of Court.
*21 Appellant filed a demurrer to the rule to show cause as well as a return. The grounds of the demurrer will be considered in the disposition of appellant's exceptions in this appeal. The return is in effect a denial on the part of appellant that he was at fault in bringing on the controversy with the witness, Mishoe, and it contains an express denial that he intended any disrespect to the Court.
The demurrer was overruled by Judge Littlejohn and trial was had before him in which there was testimony offered by the State supporting the version of the controversy originally given to the Court by the witness, Dutch Mishoe. This version was corroborated, and it appeared further that Mr. Mishoe was a man 43 years of age, weighing only 110 lbs., walked bent over with a stick, and that he had been disabled from rheumatism since 1932. Without discussing here the version of the controversy testified to by appellant and his witnesses, it is sufficient to state that there was ample testimony to support the findings of fact by the trial Judge, that appellant did use the language heretofore quoted in the testimony of Dutch Mishoe, and that he made the threat contained therein at the time and place stated.
The Circuit Judge ruled specifically that appellant was charged with a direct contempt under the Common Law and not under a statute. By appropriate exceptions and argument thereon, it is contended, (1) that there was no direct contempt because the conduct complained of did not take place in the courtroom itself nor in the sight or hearing of the Judge; and (2), that if such conduct should be considered a direct contempt on the premise that what happened was in effect contempt in the presence of the Court, then Section 15-12 of the Code of Laws, 1952, controls, and the sentence not being in the alternative of fine or imprisonment cannot stand.
There can be no doubt about the power of the courts of general jurisdiction in this State to punish for contempt. This power is not derived from any statute *22 but from the common law which from its inception recognized this implied and necessary power, without which contumacious conduct could well destroy the authority of any Court.
Mr. Justice Harlan delivered in 1888 the unanimous decision of the Supreme Court of the United States in the case of Ex parte Terry, 128 U.S. 289, 9 S. Ct. 77, 79, 32 L. Ed. 405, 408, in which the following appears:
"* * * In Anderson v. Dunn, 6 Wheat, 204, 227 [19 U.S. 204], 5 L. Ed. 242, 247, it was said that `courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum in their presence, and submission to their lawful mandates.' So, in Ex parte Robinson, 19 Wall. 505, 510 [86 U.S. 505, 22 L. Ed. 205, 207]: `The power to punish for contempts is inherent in all courts. Its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts; and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.' Ex parte Bollman, 4 Cranch, 75, 94, [8 U.S. 75, 2 L. Ed. 554, 561]; Story, Const. § 1774; Bac. Abr. `Courts,' E. And such is the recognized doctrine in reference to the powers of the courts of the several states. `Summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice,' the supreme judicial court of Massachusetts well said, in Cartwright's case, 114 Mass. 230, 238, `is inherent in courts of chancery and other superior courts, as essential to the execution of their powers; and to the maintenance of their authority, and is part of the law of the land, within the meaning of magna charta and of the 12th article of our declaration of rights.' The declaration of rights here referred to was that which formed part of the constitution of Massachusetts, and contained the prohibition, inserted in most of the American constitutions, against depriving *23 any person of life, liberty, or estate, except by the judgment of his peers, or the law of the land. So, in Cooper's case, 32 Vt. 253, 257: `The power to punish for contempt is inherent in the nature and constitution of a court. It is a power not derived from any statute, but arising from necessity; implied, because it is necessary to the exercise of all other powers.' Without such power, it was observed in Easton v. State, 39 Ala. [551] 552, the administration of the law would be in continual danger of being thwarted by the lawless. * * *"
It seems clear that direct contempt is involved in a case of the character here. During the term of the Court, and the recesses thereof during the term, the orderly conduct thereof requires protection of all officers of the Court, jurors, attorneys, and others who in the line of official duty are assisting the Court in the present dispatch of its business, and to all witnesses who are in attendance under subpoenas to give evidence in causes pending before it. State v. Little, 175 N.C. 743, 94 S.E. 680.
When the Court is in session, in order to extend its protection to its officers, jurors and witnesses, it must be considered to be present where those persons are required to be in the performance of their several duties. To assault, threaten, or intimidate such persons while attendant upon the Court would be direct contempt. Ex parte Savin, 131 U.S. 267, 9 S. Ct. 699, 702, 33 L. Ed. 150.
In the case cited above, we find the following:
" * * * We are of opinion that, within the meaning of the statute, the court, at least when in session, is present in every part of the place set apart for its own use, and for the use of its officers, jurors, and witnesses, and misbehavior anywhere in such place is misbehavior in the presence of the court. It is true that the mode of proceeding for contempt is not the same in every case of such misbehavior. Where the contempt is committed directly *24 under the eye or within the view of the court, it may proceed `upon its own knowledge of the facts, and punish the offender, without further proof and without issue or trial in any form,' (Ex parte Terry, 128 U.S. 289, 309 [9 S. Ct. 77, 32 L. Ed. 405, 410]); whereas, in cases of misbehavior of which the judge cannot have such personal knowledge, and is informed thereof only by the confession of the party, or by the testimony under oath of others, the proper practice is, by rule or other process, to require the offender to appear and show cause why he should not be punished. 4 Bl. Comm. 286. But this difference in procedure does not affect the question as to whether particular acts do not, within the meaning of the statute, constitute misbehavior in the presence of the court.* * *"
The meaning of the phrase "in the presence of the court" is defined in 12 Am. Jur., Contempt, Section 5, p. 392:
"In defining what is meant by `the presence of the court,' as that term is used with reference to contempts, it is said that `the court' consists not of the judge, the courtroom, the jury, or the jury room individually, but of all of these combined. The court is present wherever any of its constituent parts is engaged in the prosecution of the business of the court according to law. * * *"
As the trial Judge held in the instant case, the witness. Dutch Mishoe, was under subpoena and although he had testified in the case and argument of counsel had been completed, the Court had not dismissed him and he remained attendant upon the Court subject to possible recall. The fact that he was not actually recalled does not alter the situation. He retained his status as a witness until the completion of the case in which he was subpoenaed.
The foregoing disposes of appellant's contentions first raised by his demurrer and preserved by exceptions on this appeal. Those exceptions are overruled.
*25 Additional exceptions charge error in the failure to hold the return, and the evidence offered in support thereof, sufficient to discharge appellant.
The intent or purpose of the contemnor must necessarily be ascertained from all of the acts, words and circumstances surrounding the occurrence. As has frequently been said, intent is subjective and not objective. Appellant admits in his written argument that the facts here "were all in dispute." When that is the case and there is sufficient evidence worthy of belief to support the factual findings of the Circuit Judge, this Court will not disturb those findings. Holliday v. City of Greenville, 224 S.C. 207, 78 S.E. (2d) 279. The exceptions based upon this contention are overruled.
This leaves only those exceptions challenging the findings of fact as made by the Court as being sufficient to legally base a conviction of direct contempt.
It is sufficient in this regard to point out that in all cases the findings of fact, and for that matter, the conclusions of law, as found by the Court must be considered along with the pleadings and other writings making up the record in the cause. When this is done here, it is evident that the Court did find as a fact that the language and conduct of appellant were intended to and did intimidate and threaten the witness, Dutch Mishoe, concerning his testimony given before the Court.
But even if such were not the case, it has long been held that any omission of a factual finding in the judgment or order of the Court will not be considered good ground for reversal unless it appears that the appellant has suffered prejudice thereby as to the merits of his case. C. Aultman & Co. v. Utsey, 41 S.C. 304, 19 S.E. 617. Manifestly, this does not appear here.
All exceptions having been found without merit and overruled, the judgment and sentence is affirmed.
STUKES, TAYLOR, OXNER and LEGGE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334947/ | 659 S.E.2d 809 (2008)
MEALER
v.
KENNEDY.
No. A08A0205.
Court of Appeals of Georgia.
March 21, 2008.
*810 Downey & Cleveland, James T. Ponton and Joseph C. Parker, Marietta, for Appellant.
Lloyd Noland Bell, for Appellee.
BLACKBURN, Presiding Judge.
In a negligence case arising from a motor vehicle collision, we granted Beverly Mealer's application seeking interlocutory review of the denial of her motion to enforce a settlement agreement with Alex Kennedy. Because the trial court erred in concluding that Mealer and Kennedy had not reached a settlement agreement, we reverse.
"A trial court's order on a motion to enforce a settlement agreement based on undisputed facts is subject to de novo review." Anaya v. Coello.[1] The undisputed record shows that while Kennedy was riding his motorcycle on July 22, 2006, he was injured in a collision with a car driven by Mealer. On August 10, 2006, Mealer's insurance carrier, Progressive Insurance Company ("Progressive"), sent a letter to Kennedy's attorney at the time, offering the policy limits of $25,000 per person in exchange for either (1) a full and final release or (2) a limited liability agreement accompanied by a waiver of subrogation from any uninsured/underinsured motorist (UM) carriers. The offer was also inclusive of any hospital liens, known or unknown.
On September 19, 2006, Progressive was notified that Kennedy's attorney had been replaced by new counsel. The new counsel, rather than responding directly to Progressive's offer of its policy limits, of which he had knowledge, sent on October 4, 2006, a letter to Progressive "demanding the policy limits to settle this case for the sum of [$25,000], which Progressive has represented is the limit of their available insurance." The demand further provided that it expired on October 13, 2006, with no other terms being specified. The new attorney refused to communicate with Progressive except in writing. On October 5, 2006, Progressive responded in writing that it had previously offered to settle for the policy limits and attached the original August 10 letter memorializing the offer. Kennedy's attorney faxed a response the same day, stating, "I received [Progressive's] faxed letter of today's date accepting our demand for policy limits of $25,000. . . . As you are aware, the limited release is necessary to allow [Kennedy] to recover available underinsured motorist benefits." Thus, having received Progressive's letter, he attempted to couch the arrangement as Progressive having accepted his demand, rather than the plaintiff having accepted Progressive's offer which was on the table before this attorney was in the case. As shown by Kennedy's written offer, and as conceded by Kennedy's attorney at oral argument, Kennedy's attorney sought through the tactics discussed herein to put Progressive in an excess posture as to any verdict in excess of the policy limits.
On October 9, 2006, Progressive responded in writing, confirming that its "offer was inclusive of any liens," and requested Kennedy to execute an enclosed "Affidavit of No Lien" to confirm the representation that no liens existed. Progressive also requested contact information for Kennedy's UM carriers and an extension of time so that it could pursue a waiver of subrogation from the relevant UM carriers.
The next day, Progressive faxed Kennedy's attorney a copy of a proposed limited liability release agreement containing an indemnification in favor of Mealer and Progressive *811 should either be sued in breach of the release agreement. That same day, Kennedy's attorney faxed a response to the October 9 letter, declining the time extension and stating that neither he nor his client had received notice of any lien or claim of lien.
On October 11, 2006, Progressive responded by facsimile, explaining that it had requested the UM carrier information so that Progressive "can request that each carrier agree to waive their subrogation rights. . . . For this reason, I again respectfully request that you grant an extension of your demand and identify all possible UM carriers." The letter further stated, "I have already provided you with a proposed Limited Liability Release and Affidavit of No Lien for your review." Separately, that same day, Progressive faxed and mailed to Kennedy's attorney a letter providing notice of its payment, with a check for $25,000 to the attorney's trust account. The letter stated that "it is understood that the enclosed Limited Liability Release form will be signed and . . . I also request [that] Mr. Kennedy execute the enclosed Affidavit of No Lien."
October 30, 2006, Kennedy's attorney sent Progressive a letter stating that due to Progressive's alleged failure to unconditionally accept his demand for the policy limits, the attorney believed that Progressive acted negligently and in bad faith; accordingly, the attorney enclosed a copy of a complaint which Kennedy had already filed against Mealer ten days earlier.
Mealer moved to enforce the settlement agreement it contended existed between the parties. After the trial court denied the motion and issued a certificate of immediate review, Mealer applied for interlocutory review, which this Court granted.
Compromises of doubtful rights are upheld by general policy, as tending to prevent litigation, in all enlightened systems of jurisprudence. In considering the enforceability of an alleged settlement agreement, however, a trial court is obviously limited to those terms upon which the parties themselves have mutually agreed. Absent such mutual agreement, there is no enforceable contract as between the parties. It is the duty of courts to construe and enforce contracts as made, and not to make them for the parties. The settlement agreement alleged to have been created in this case would have been the product of the attorneys for the parties. As the existence of a binding agreement is disputed, [Mealer,] the proponent of the settlement[,] must establish its existence in writing. The writing which will satisfy this requirement ideally consists of a formal written agreement signed by the parties. However, letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.
(Punctuation omitted.) Pourreza v. Teel Appraisals & Advisory.[2]
Here, Mealer points to the October 5 letter from Kennedy's attorney which notes his receipt of Progressive's "faxed letter of today's date accepting our demand for policy limits of $25,000." (Emphasis supplied.) In the October 5 letter, Kennedy's attorney also requested that the settlement be in the form of a limited release in light of Kennedy's intention to pursue UM claims. Nothing was inconsistent with Progressive's intended settlement or its subsequent correspondence.
In response, Kennedy contends that no agreement existed, arguing that "[t]o constitute a contract, the offer must be accepted unequivocally and without variance of any sort." (Punctuation omitted.) Herring v. Dunning.[3] Kennedy asserts that (1) Progressive's subsequent request for execution of the No Lien Affidavit was an additional condition that rendered Progressive's response a counteroffer, (2) Progressive required Kennedy himself to obtain subrogation waivers from his UM carrier, and (3) an indemnity provision in the limited liability release form was objectionable and therefore at variance with his offer.[4]
*812 At the outset, it is important to note that Kennedy's own attorney stated that Progressive's October 5 letter was an acceptance of "our demand for policy limits," which did not provide specific terms nor a specific manner of acceptance. Moreover, in that letter, Kennedy's attorney indicated his choice of a limited release an option explicitly proposed by Progressive's letter. Thus, it is clear that Kennedy's attorney acknowledged acceptance of his nonspecific offer after being made aware of the terms contemplated by Progressive (i.e., UM waivers and inclusion of hospital liens). This written exchange created a binding agreement. We emphasize that this is not a case where Kennedy's attorney simply made a general demand and waited for an unequivocal and nonvarying acceptance by Progressive. Nor do we suggest that the first party to make an offer trumps any subsequent counteroffer. Instead, the facts here are that Kennedy's attorney characterized Progressive's response to his demand (including Progressive's basic terms) as an acceptance of his generalized demand and indicated his preference for the type of settlement, in accordance with the terms in Progressive's October 5 and August 10 letters. Compare Wyatt v. House[5] (no settlement agreement where insurer responded to settlement demand by writing "[y]ou requested settlement with a Limited release; however, we feel our insured is better protected with a Release in Full") (punctuation omitted).
Further, with respect to the No Lien Affidavit, Kennedy's attorney had already stated that neither he nor Kennedy were aware of any liens, so Progressive's proffering the affidavit and requesting that it be signed was merely an attempt to memorialize this understanding. See Frickey v. Jones[6] (the mere confirmation that no liens exist does not render an acceptance a counteroffer which rejects the plaintiff's offer). With respect to the alleged requirement to obtain a subrogation waiver, Kennedy misstates the record, which demonstrates only that Progressive simply requested the identity of the UM carriers so that it could communicate with them itself. Finally, with respect to Kennedy's objection to the indemnity provision in the proposed release, "since the agreement to terminate the controversy already had been created, the defendant's subsequent proffer of a release form which plaintiff believed was not in compliance with the understanding of the parties would not be a rejection of the previously accepted offer." Herring, supra, 213 Ga.App. at 699-700, 446 S.E.2d 199.
Kennedy compares this case to Frickey, supra, 280 Ga. at 573, 630 S.E.2d 374, which addressed a scenario where the insurer responded to a time-limited demand for policy limits by stating its willingness to tender the policy limits "upon receipt of the fully executed release enclosed," and by stating, "[o]bviously, payment is complicated by what appears to be a Grady Hospital lien as well as potential liens by your client's health carrier. Please advise me of the status of these liens." (Punctuation omitted.) No further settlement discussions ensued. The Supreme Court of Georgia ruled that the insurer's purported acceptance varied from the offer as it "required an additional act necessary to acceptance of [plaintiff's] offer to settle for the policy limits the resolution of all actual and potential liens of the health care providers." (Emphasis in original.) Id. at 575, 630 S.E.2d 374. Therefore, the Supreme Court ruled that the purported acceptance did not create an enforceable agreement.[7]
Frickey is distinct from the present scenario for at least three reasons: (1) Kennedy's attorney himself stated that Progressive's response was an acceptance of his demand, (2) Progressive's payment was not *813 conditioned on Kennedy's prior resolution of any existing or potential liens, and (3) Progressive actually tendered timely payment of the policy limit as demanded by Kennedy. We emphasize that Kennedy's attorney himself, after receiving Progressive's original offer (inclusive of liens and contemplating that Progressive would obtain waivers from UM carriers), wrote to Progressive characterizing Progressive's response as an acceptance of his nonspecific demand for the policy limits. After Progressive inquired about liens and the identity of UM carriers and sent a proposed settlement form, Kennedy's attorney did not object to either and simply stated that he was not aware of any liens. Only after Progressive tendered timely payment did Kennedy's attorney refuse to terminate the controversy. This refusal, in and of itself, did not obviate the prior agreement to settle, and once Kennedy's attorney acknowledged that Progressive had accepted his demand to settle, "the presentation of a proper release in a form acceptable to plaintiff may have been a condition of defendant's performance but it was not an act necessary to acceptance of plaintiff's offer to settle for the policy limits." Herring, supra, 213 Ga.App. at 699, 446 S.E.2d 199. See also Capitol Materials v. Kellogg & Kimsey, Inc.[8] (that the form of lien releases had not been negotiated did not render an alleged agreement incomplete); Pourreza, supra, 273 Ga.App. at 883, 616 S.E.2d 108 ("the drafting of documents necessary to effectuate the settlement may have been a condition of the performance but it was not an act necessary to acceptance of the offer to settle") (punctuation omitted).
In light of the prior agreement to settle, the trial court erred in denying Mealer's motion to enforce the settlement agreement. We therefore reverse.
Judgment reversed.
MILLER and ELLINGTON, JJ., concur.
NOTES
[1] Anaya v. Coello, 279 Ga.App. 578, 579, 632 S.E.2d 425 (2006).
[2] Pourreza v. Teel Appraisals & Advisory, 273 Ga.App. 880, 882-883, 616 S.E.2d 108 (2005).
[3] Herring v. Dunning, 213 Ga.App. 695, 698, 446 S.E.2d 199 (1994).
[4] The indemnity merely addressed claims filed in breach of the release itself and does not appear to be an attempt to overreach on the part of Progressive.
[5] Wyatt v. House, 287 Ga.App. 739, 741(3), 652 S.E.2d 627 (2007).
[6] Frickey v. Jones, 280 Ga. 573, 576, n. 2, 630 S.E.2d 374 (2006).
[7] The Supreme Court of Georgia distinguished Frickey from Herring, noting that merely confirming the nonexistence of liens does not create a counteroffer. Frickey, supra, 280 Ga. at 576, n. 2, 630 S.E.2d 374.
[8] Capitol Materials v. Kellogg & Kimsey, Inc., 242 Ga.App. 584, 586(3), 530 S.E.2d 488 (2000). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334952/ | 659 S.E.2d 757 (2008)
In the Matter of J.J.D.L.
No. COA07-839.
Court of Appeals of North Carolina.
April 15, 2008.
Attorney General Roy Cooper, by Assistant Attorney General Lauren M. Clemmons, for the State.
Sofie Hosford, Wilmington, for defendant-appellant.
BRYANT, Judge.
Defendant J.J.D.L., a juvenile, appeals from the trial court's adjudication and disposition for first degree sex offenses with a child under N.C. Gen.Stat. § 14-27.4(a)(1).
On 23 June 2006, the mother of T.B.M. filed a juvenile petition against defendant for sexual offenses against her son. The first petition alleged indecent liberties between children and three additional petitions alleged *759 three separate counts of first degree sex offense. Evidence submitted during an adjudicatory hearing to determine delinquency tended to show the offenses occurred when defendant was fourteen years old and the victim, T.B.M., was seven years old.
During the hearing, T.B.M. identified defendant in the courtroom and testified that "[defendant] stuck his pee worm in [T.B.M.'s] butt hole." T.B.M. acknowledged that he referred to a penis as a "pee worm" or "pee bug." T.B.M. testified that defendant did this on five different occasions, all of which occurred in defendant's bedroom or in a bathtub. T.B.M. testified that defendant used lotion to lubricate himself, and when defendant anally penetrated him in the shower, defendant used soap. T.B.M. testified that each experience was painful.
T.B.M.'s mother testified that one day T.B.M. told her he did not want to go back to his grandmother's house and when questioned related the above events as the reason why. Defendant's grandfather was married to T.B.M.'s grandmother and defendant had a room at their house. T.B.M.'s mother filed a report with the Robeson County Sheriff's Department. Sergeant Sue Lutz with the Juvenile Division was assigned to investigate.
During the investigation Sgt. Lutz interviewed defendant with his mother present. Sgt. Lutz read defendant his juvenile rights warning and both defendant and his mother signed to indicate they understood defendant's rights. Defendant talked to Sgt. Lutz, and although defendant never signed a statement, at the juvenile delinquency hearing Sgt. Lutz testified, over defendant's objection, to the content of their conversation. Sgt. Lutz stated defendant acknowledged three occasions during which, though he denied penetration, defendant admitted that he either soaped or lotioned his penis, stuck it between the victim's "butt cheeks and humped him." Sgt. Lutz also testified to defendant's acknowledgment of a fourth occasion when another boy named Johnny[1] was present. Though defendant admitted to masturbating in the presence of T.B.M. and Johnny, defendant denied performing any sexual act on T.B.M. at that time. Sgt. Lutz testified that according to defendant all of these events occurred in defendant's room or in a shower in T.B.M.'s grandmother's house.
During the course of the investigation, Sgt. Lutz and T.B.M.'s mother accompanied T.B.M. when he was examined by Dr. Howard Loughlin, a Board Certified Pediatrician practicing in Fayetteville, North Carolina at Southern Regional AHEC as the Medical Director of the Child Abuse Evaluation Clinic. At that time, Dr. Loughlin spoke to Sgt. Lutz, T.B.M.'s mother, and T.B.M. At the adjudication hearing, Dr. Loughlin testified without objection that T.B.M.'s mother informed him T.B.M.'s school performance had gotten "much worse," at times he was "much more moody," and T.B.M. had started having accidents where he urinated and defecated on himself.
Dr. Loughlin testified that he examined T.B.M. on two occasions 27 April and 19 May 2006, for evaluation, diagnosis, and treatment of alleged sexual abuse. Dr. Loughlin noted that T.B.M.'s anus was much larger than he was accustomed to seeing on physical exams. Dr. Loughlin testified that on a typical child T.B.M.'s age, the anal opening would be closed with perhaps a minimal, if any, opening. T.B.M.'s anal opening measured one and a half by two centimeters. Dr. Loughlin testified that in terms of the victim's anal dilation this was the most striking exam he had seen in twelve years.
During the examination, T.B.M. related to Dr. Loughlin those events that occurred at his grandmother's house, and Dr. Loughlin asked T.B.M. if anyone besides defendant participated. At the adjudicatory hearing, Dr. Loughlin testified, without objection, that T.B.M. mentioned the name of another boy, Johnny. Dr. Loughlin further testified that T.B.M.'S behavior and the disclosures of the physical exam were consistent with those of children who had been sexually abused, anally sodomized.
At the adjudicatory hearing, Johnny, fourteen years old at the time of trial and another grandchild of T.B.M.'s grandmother, testified to an incident that occurred one day *760 when he was out from school for a week. Johnny testified that he, defendant, and T.B.M. were at their grandmother's house watching a movie in defendant's bedroom. At some point, defendant pulled his pants down, began masturbating, and encouraged Johnny to join him. Johnny testified that Defendant asked T.B.M. if defendant could "clean [T.B.M.] out"? To which, T.B.M. responded no, saying it burned the last time. Johnny testified defendant urged T.B.M. to cooperate three times before relenting.
On 22 January 2007, the trial court entered a written adjudication order adjudicating defendant delinquent as to three counts of first degree sex offense under N.C.G.S. § 14-27.4(a)(1) and dismissing the charge of indecent liberties. In addition, the trial court ordered that defendant submit to a sex offender specific evaluation and not be around T.B.M. or around children without supervision. The trial court scheduled a disposition hearing for 13 March 2007. At the hearing, the trial court, despite the lack of a sex offender specific evaluation, ordered defendant committed to the Youth Development Center of the Department of Juvenile Justice and Delinquency for an indefinite commitment not to exceed defendant's eighteenth birthday, absent an extension; to submit and comply with any sex offender specific evaluation and its recommendations; have no contact with the victim; and register as a sex offender pursuant to N.C. Gen.Stat. § 14-208.26.
On 14 March 2007, defendant filed a notice of appeal and made a motion for release from custody pending appeal. On 19 March 2007, the trial court denied defendant's motion for release.
On appeal, defendant raises three issues: whether the trial court erred by (I) denying defendant's motion for release pending appeal, (II) allowing Sgt. Lutz to testify about statements made by defendant that were against defendant's interests, and (III) proceeding with the disposition hearing in the absence of a sex offender specific evaluation report.
I
Defendant first questions whether the trial court erred by denying defendant's release pending appeal. Defendant argues the trial court stated no reason for denying defendant's release and that the order should be reversed as a matter of law. We disagree.
Under North Carolina General Statute 7B-2605,
[p]ending disposition of an appeal, the release of the juvenile, with or without conditions, should issue in every case unless the court orders otherwise. For compelling reasons which must be stated in writing, the court may enter a temporary order affecting the custody or placement of the juvenile as the court finds to be in the best interests of the juvenile or the State.
N.C. Gen.Stat. § 7B-2605 (2007).
Here, the trial court ordered defendant committed to the Youth Development Center of the Department of Juvenile Justice and Delinquency for an indefinite commitment to last for a minimum of six months and a maximum term to end on defendant's eighteenth birthday. The record also contains the trial court's form for appellate entries in a delinquency proceeding, which includes the denial of defendant's motion to be released pending appeal pursuant to G.S. 7B-2605. On the form, the trial court stated the following as the compelling reason defendant's motion for release was denied: "first degree sex offenses with a child 14-27.4(a)(1)."
Under North Carolina General Statute 14-27.4(a)(1),
[a] person is guilty of a sexual offense in the first degree if the person engages in a sexual act . . . [w]ith a victim who is a child under the age of 13 years and the defendant is at least 12 years old and is at least four years older than the victim.
N.C. Gen.Stat. § 14-27.4(a)(1) (2007).
Given that defendant does not challenge the trial court's findings of fact that defendant "did engage in a sex offense with [T.B.M.], a child under the age of 13 years, who was at least four years younger than [defendant] and [defendant] was at least twelve years old, being offenses in violation *761 of G.S. 14-27.4(A)(1)," we cannot hold the trial court's denial of defendant's motion to be released pending appeal was unsupported or manifestly without reason.
Accordingly, defendant's assignment of error is overruled.
II
Defendant next questions whether the trial court erred in admitting Sgt. Lutz's summary of defendant's statement. Defendant argues the State failed to establish Sgt. Lutz's summary constituted an accurate account of defendant's statement and the document constituted hearsay falling within no exception. We disagree.
Under North Carolina Rules of Evidence, Rule 801(c), "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," N.C. Gen.Stat. § 8C-801(c) (2007), and "[h]earsay is not admissible except as provided by statute or by these rules." N.C. Gen.Stat. § 8C-802 (2007). Under N.C.G.S. 8C-801(d), titled "Exception for Admissions by a Party-Opponent," "[a] statement is admissible as an exception to the hearsay rule if it is offered against a party and it is . . . his own statement, in either his individual or a representative capacity." N.C. Gen.Stat. § 8C-801(d) (2007). "An admission is a statement of pertinent facts which, in light of other evidence, is incriminating." State v. Smith, 157 N.C.App. 493, 496, 581 S.E.2d 448, 450 (2003) (citation omitted).
In the North Carolina General Statutes, under Juvenile Code section 7B-2407, titled "When admissions by juvenile may be accepted," "[t]he court shall determine whether there were any prior discussions involving admissions . . . [and] [t]he court may accept an admission from a juvenile only after determining that the admission is a product of informed choice." N.C. Gen.Stat. 7B-2407 (b) (2007).
Here, the evidence presented during the adjudicatory hearing showed that during the investigation, Sgt. Lutz interviewed defendant, with his mother present. Sgt. Lutz testified that, at the time of the interview, defendant was not in custody; Sgt. Lutz read defendant his Juvenile Rights Warning, after which both defendant and his mother signed a statement indicating they understood the rights; and after defendant and his mother left, Sgt. Lutz wrote her summary of the interview. Sgt. Lutz's summary of defendant's statements during the interview were not admitted during the delinquency proceeding.
Sgt. Lutz then testified to defendant's admission that on at least three different occasions he used T.B.M.'s body for sexual gratification, though he denied penetrating T.B.M. Sgt. Lutz testified to defendant's statements regarding one incident involving both T.B.M. and another boy named Johnny, though in that situation defendant denied assaulting T.B.M. Sgt. Lutz testified to defendant's statements that all of these incidents occurred in defendant's room or in a shower.
We hold Sgt. Lutz's testimony was admissible under both Rule of Evidence, Rule 801(d), allowing admissions by a defendant, and General Statute 7B-2407, governing when admissions by a juvenile may be accepted. Accordingly, defendant's assignment of error is overruled.
III
Last, defendant questions whether the trial court erred in conducting the dispositional hearing without the results of a court ordered sex offender evaluation. Defendant argues that in the absence of such a report, the public safety issues or the defendant's need for treatment could not be properly assessed.
Under North Carolina Rules of Appellate Procedure, Rule 10(b)(1)
In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain *762 a ruling upon the party's request, objection or motion.
N.C.R.App. P. 10(b)(1) (2007).
Here, even acknowledging the informality allowed in a dispositional hearing, see N.C. Gen.Stat. § 7B-2501(a) ("[t]he dispositional hearing may be informal . . ."), the record gives no indication defendant contested the continuance of the dispositional hearing on the grounds that a sex offender specific evaluation was unavailable. As "[t]his Court will not consider arguments based upon matters not presented to, or adjudicated by the trial tribunal[,]" State v. Hairston, 123 N.C.App. 753, 761, 475 S.E.2d 242, 247 (1996), defendant is procedurally barred from asserting this argument.
Moreover, on appeal, defendant fails to argue how the absence of a sex offender specific evaluation hindered the trial court's ability to properly sentence him. The trial court adjudicated defendant delinquent based on the commission of a B1 felony, first degree sex offenses with a child under N.C.G.S. § 14-27.4(a)(1), (b) (2007). This is categorized as a "violent offense." See N.C. Gen. Stat. § 7B-2508(a)(1). In addition to commitment to the Youth Development Center of the Department of Juvenile Justice, the trial court ordered defendant to submit to and comply with any sex offender specific evaluations and its recommendations.
Affirmed.
Judges HUNTER and JACKSON concur.
NOTES
[1] "Johnny" is a pseudonym used in place of juvenile's real name. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334964/ | 659 S.E.2d 793 (2008)
ANDRUS et al.
v.
ANDRUS et al.
No. A07A2477.
Court of Appeals of Georgia.
March 20, 2008.
Hodges, McEachern & King, Carl H. Hodges, Jonesboro, Timothy K. King, for appellants.
Browning & Smith, George T. Smith, Marietta, for appellees.
SMITH, Presiding Judge.
William David Andrus and Jane Andrus, as trustee and executrix of the last will and testament of Wheeler Noble Hamilton ("trustees"), appeal from the trial court's order setting aside its previous dismissal of a declaratory judgment action filed against them by William Hamilton Andrus, Catherine Shutters, and Bettye Anderson ("putative heirs"). For the reasons set forth below, we affirm.
The record shows that on February 22, 2001, the putative heirs filed a declaratory judgment action in Walker County Superior Court. The action was brought against the trustees seeking a declaration of the rights of the putative heirs with respect to real property in the Hamilton estate. The trustees moved for summary judgment in their favor, and the trial court held a hearing on September 16, 2003. On November 24, 2003, while the motion was still pending, the trial court held a peremptory calendar call "to dispose by Rule 14 of the Georgia Uniform Superior Court Rules those cases in which no action had been taken for some period of time." The clerk of court testified in a subsequent hearing that the case was placed on the peremptory calendar due to a clerical mistake and that the parties did not receive notice of the peremptory calendar call. On November 24, 2003, the trial court dismissed the case after the peremptory calendar call, *794 but the putative heirs did not receive a copy or notice of this order either.
On December 11, 2003, after converting the putative heirs' opposition to the trustees' motion for summary judgment into a cross-motion for summary judgment,[1] the trial court entered a partial summary judgment order in favor of a putative heir, William Hamilton Andrus, even though it had already dismissed his complaint. On January 12, 2004, the trustees filed a motion for new trial,[2] instead of a notice of appeal, and the trial court denied the motion on June 28, 2004. The trustees did not appeal from this order.
In March 2007, the trustees filed suit against William Hamilton Andrus in Walker County State Court seeking damages for slander of title, back rent, and trespass. The putative heirs then filed a motion in Walker County Superior Court to set aside the order dismissing their declaratory judgment complaint because it was erroneously issued a few weeks before the trial court granted partial summary judgment in favor of putative heir William Hamilton Andrus. After conducting a hearing and receiving evidence, the superior court found that its order dismissing the case on November 24, 2003, resulted from an "obvious clerical mistake." The court granted the putative heirs' motion to set aside and vacate that order pursuant to OCGA § 9-11-60(g). The court also found its "order of . . . December 11, 2003 . . . to be valid."
In several related enumerations of error, the trustees assert that the trial court erred by setting aside the November 24, 2003 dismissal order. In the alternative, they argue that if the order was properly set aside, the trial court must also vacate and re-enter its December 11, 2003 order granting partial summary judgment in favor of William Hamilton Andrus.
We are guided by our opinion in Carnes Bros., Inc. v. Cox, 243 Ga.App. 863, 534 S.E.2d 547 (2000) (physical precedent only). In Carnes Brothers, we found that a trial court's failure to comply with the requirement of OCGA § 15-6-21(c), that it provide counsel with notice of its orders, provides justification for the trial court to later set aside such an order under OCGA § 9-11-60(g).[3] Id. at 864, 534 S.E.2d 547. In this case, the trial court's factual findings show that it failed to comply with OCGA § 15-6-21(c). As a result, we affirm that portion of its order setting aside and vacating its November 24, 2003 dismissal order.
The trustees argue that if this court affirms the action taken by the trial court with regard to the dismissal order, we must also order the trial court to vacate and reenter its December 11, 2003 order granting summary judgment in favor of William Hamilton Andrus in order to preserve their appeal rights. We disagree. Although the trustees asked the trial court in the motion hearing about the effect of its December 11, 2003 order on their appeal rights, they never moved the trial court to set aside this judgment under OCGA § 9-11-60. Because there was no motion before the trial court and the trustees have not asserted any grounds to set aside this judgment under OCGA § 9-11-60, we find no merit in this claim.
In so holding, we note that after the December 11, 2003 summary judgment order was entered, the trustees filed a motion for new trial, instead of a notice of appeal, and did not attempt to appeal from the denial of their motion for new trial. The trustees therefore have not been deprived of any appeal *795 rights. They were aware of the summary judgment order and did not seek to overturn it on the grounds that they now assert for the first time on appeal: that the trial court had no jurisdiction to issue it after having already dismissed the case.[4]
Judgment affirmed.
BARNES, C.J., and MILLER, J., concur.
NOTES
[1] In its order, the trial court states that it converted the opposition based upon the "agreement of the parties and the court[']s approval." The record before us does not contain a transcript of this hearing.
[2] In their brief below, the trustees asserted, in part, that the trial court erred by converting the putative heirs' opposition to the trustees' summary judgment motion into an affirmative motion in favor of the putative heirs. While noting in this brief that no transcript of the summary judgment hearing existed, the trustees did not attempt to prepare a transcript from recollection. See OCGA § 5-6-41(g).
[3] OCGA § 9-11-60(g) provides that clerical mistakes in orders "may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders."
[4] A trial court is not deprived of jurisdiction over a case until a notice of appeal has been filed. Lowe v. Center Neurology Assoc., 288 Ga.App. 166, 168(1), 653 S.E.2d 318 (2007). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334934/ | 227 S.C. 481 (1955)
88 S.E.2d 598
J. H. ELLEN, JR., DAVID M. ELLEN, JR., and WILLIAM M. ELLEN, Respondents,
v.
A.L. KING and ST. PAUL-MERCURY INDEMNITY COMPANY, Appellants.
17038
Supreme Court of South Carolina.
July 25, 1955.
*482 Messrs. Willcox, Hardee, Houck & Palmer, of Florence, for Appellant, St. Paul-Mercury Indemnity Co., and Messrs. J.B. Gibson and Hawkins & Bethea, of Dillon, for Appellant, A.L. King.
Messrs. Herbert Britt, of Dillon, Henry C. Jennings, of Bishopville, and James P. Mozingo, III, and John L. Nettles, *483 of Darlington, for Respondents.
July 25, 1955.
LEGGE, Justice.
This is an action against a building contractor and the surety on his payment and performance bond; and the appeal by the defendants is from an order of Judge Lewis dated September 19, 1953, refusing their motions to require the complaint to be made more definite and certain and to strike certain allegations thereof, and also from an order of Judge Brailsford dated February 10, 1954, refusing their motion to require the plaintiffs to appear for pre-trial examination by the defendants, and their motion to join an additional defendant.
Plaintiffs alleged in their complaint that on July 31, 1950, they entered into a contract with the defendant King whereby he agreed to construct a store building for them for the sum of $49,968.75 in accordance with plans and specifications signed by them and him; and that pursuant to his agreement to furnish a payment and performance bond in a sum equal to the contract price, the defendant St. PaulMercury Indemnity Company issued under even date with the contract its bond conditioned to indemnify plaintiffs against all loss that they might sustain should King fail to comply with all of the terms of his contract. The contract, plans and specifications, and contractor's bond are incorporated in the complaint by reference to copies attached thereto and served therewith. These exhibits are not reproduced in the transcript of record. As the motions to strike involved some, and the motion to make more definite and certain involved all, of the paragraphs of the complaint except the *484 first four, it will be necessary to refer to them in some detail. In this connection we note that two of the paragraphs are numbered 5; and to avoid confusion we shall refer to the first as number 5 and to the second as number 5-a. Following are, in substance, the allegations of the paragraphs in question:
5. That King failed to perform his contract in accordance with the plans and specifications, in the following particulars:
(1) Did not finish the construction within 120 days from August 2, 1950, resulting in damage to the plaintiffs in the sum of $1,125.00;
(2) Failed to pay nine bills, which are separately stated, and which aggregated $2,095.71;
(3) Failed to properly install with the air conditioning system an automatic compensating starter in accordance with the contract "and as recommended by Carolina Power & Light Company and the City Engineer of the City of Dillon."
(4) Failed to properly install the heating and air conditioning system and equipment, in the following particulars:
(a) Failing to supply the unloader with compressors;
(b) Instead of the air handling unit called for in the specifications, installed a Worthington unit without by-pass section, without filter box and assembly, without spray type humidifier, and without face and by-pass dampers the system so installed having required the expenditure of large sums for repairs, and being practically worthless;
(c) Failing to supply the boiler and hot water coil and circulator called for in the specifications;
(d) Failing to install the type of thermostats required by the specifications; and
(e) Failing to properly service the equipment as provided in the contract.
(5) Failed to install adequate drains, gutters and downspouts and connections to storm sewers, whereby plaintiffs had to install additional downspouts and sewer connections;
*485 (6) Failed to properly cap the top of the front wall, which resulted in water seepage to the plaintiffs' damage $100.00;
(7) Improperly installed the roof by failing to place under it adequate supports and braces in accordance with the contract "and as was reasonably necessary for the proper installation of said roof, resulting in damage to the plaintiffs in the sum of $4,000.00";
(8) Improperly installed the metal and glass structure, resulting in damage to the plaintiffs in the amount of $3,200.00;
(9) Failed to install cornices in accordance with the contract, resulting in a cost to the plaintiffs of $1,500.00;
(10) Failed to properly install panelling on the columns of the building;
(11) Failed to clean mortar from the face of the brickwork after completion; and
(12) In the erection of the walls, failed to use the type and quality of brick required by the contract.
5-a. That in addition to the foregoing, a crack approximately 90 feet long has developed in the front wall of the building, due to improper construction.
6. That in March, 1951, because of the failure to install proper gutters, drains, downspouts and connections, the store building was flooded with water to a depth of six inches or more, causing damage to the building and contents that plaintiffs had to bear, in the sum of $1,869.65.
7. That in addition, because of King's failure to perform his contract, plaintiffs have been put to considerable expense "and inconvenience and have been forced to expend considerable time" and money in completing said building and trying to correct the errors made in the construction thereof.
8. That by reason of the facts before alleged, plaintiffs have been damaged in the sum of $40,000.00.
The defendants moved "upon the complaint * * * and the exhibits thereto attached" to strike the following allegations from the complaint as irrelevant, immaterial and redundant:
*486 1. Sub-sections (2), (5) and (10) of paragraph 5 and the above-quoted portions of sub-sections (3) and (7) of the same paragraph;
2. Paragraph 6; and
3. The above-quoted portion of paragraph 7.
Judge Lewis granted the motion to strike the above-quoted portion of sub-section (3) of paragraph 5, but refused it as to the other items, saying: "This action is based upon a rather lengthy contract and specifications, and some of the matters sought to be stricken may not fall within the terms of the contract. However, the court at this time is not in position to determine with exactness whether the matters sought to be stricken are relevant or irrelevant. I feel that in the light of the testimony taken at the trial, these questions can be passed upon with a greater degree of accuracy. I am, therefore, refusing the motion to strike the other allegations without prejudice to the defendant to renew his position at the trial."
The motion to strike was addressed to the discretion of the Circuit Judge. Mikell v. McCreery-Pressley Co., 105 S.C. 52, 89 S.E. 467; Staton v. Bell, 170 S.C. 395, 170 S.E. 666. No abuse of discretion has been shown here.
The defendants' motion to require the complaint to be made more definite and certain contained 28 specifications and attacked every paragraph of the complaint except the first four. The particulars in which it sought to have the complaint made more definite and certain were:
(1) As to paragraph 5(1):
(a) The number of days that the defendant King delayed completion of the building beyond the 120-day period;
(b) What loss of rent plaintiffs sustained;
(c) The items making up the damage of $1,125.00 claimed.
(2) As to paragraph 5(3):
In what manner King failed to properly install the automatic compensating starter.
*487 (3) As to paragraph 5(4) (b):
(a) An itemized statement of the large sums expended by plaintiffs;
(b) Why the air conditioning system is practically worthless.
(4) As to paragraph 5(6):
(a) How, when, why and in what items plaintiffs were damaged by water seepage to the amount of $100.00;
(b) Whether plaintiffs have paid out said amount in whole or in part.
(5) As to paragraph 5(7):
(a) To what extent King failed to place adequate supports and braces under the roof, and to what extent and how the contract between the parties was not complied with in that regard;
(b) Itemization of the damages claimed in this sub-section.
(6) As to paragraph 5(8):
(a) In what manner the metal and glass structure was improperly installed;
(b) Itemization of the damages claimed in this sub-section;
(c) What amount plaintiffs have paid for proper installation of the metal and glass structure.
(7) As to paragraph 5(9):
(a) Itemization of the $1,500.00 damages alleged because of King's failure to install cornices;
(b) Whether plaintiffs have paid for proper installation of the cornices, and if so, who did the work;
(c) In what manner King failed to properly install the cornices.
(8) As to paragraph 5(10):
(a) In what manner the panelling on the columns was improperly installed;
(b) Itemization of the amount, if any, paid for proper installation of the panelling.
*488 (9) As to paragraph 5(11):
(a) Whether plaintiffs have caused the mortar to be cleaned from the face of the brickwork;
(b) If so, how much they paid for that purpose;
(c) If not, what amount of damage is claimed in this regard.
(10) Also paragraph 5-a:
(a) What improper construction caused the crack in the front wall;
(b) The amount of damages claimed by reason of such crack.
(11) As to paragraph 6:
(a) Itemization of damage to building resulting from flooding;
(b) The amount paid, and to whom and when, because of flood damage to contents.
(12) As to paragraph 7:
(a) Itemization of the "expense and inconvenience" claimed;
(b) Itemization of the work done and amounts expended in completing the building and in trying to correct construction errors.
(13) As to paragraph 8:
(a) Itemization of the amount of damages claimed, other than the amounts particularly enumerated in the complaint.
Section 10-606 of the 1952 Code of Laws provides that "when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent the court may require the pleading to be made definite and certain by amendment." The granting or refusal of the motion here was discretionary with the trial court, whose action will not be disturbed except upon a showing by appellants that the allegations of the complaint are insufficient to apprise them of the issues that they must answer, and that manifest prejudice will result from affirmance. Ridgeland Box Mfg. Co. v. Sinclair Refining Co., 216 S.C. 20, 56 S.E. (2d) 585.
*489 Where the elements of general damages that the plaintiff claims to have suffered are definitely enumerated in his complaint, it is not necessary that he state the amount claimed for each of such elements. 15 Am. Jur. p. 751; 25 C.J.S., Damages, § 130, page 748. Cf. Prudence Co. v. Fidelity & Deposit Co. of Maryland, 297 U.S. 198, 56 S. Ct. 387, 80 L. Ed. 581. Nor is he required to set forth evidentiary matter. Webber v. Farmers Chevrolet Co., 186 S.C. 111, 195 S.E. 139; Charles v. Texas Co., 192 S.C. 82, 5 S.E. (2d) 464; Athanas v. City of Spartanburg, 196 S.C. 19, 12 S.E. (2d) 39. Nor will a pleading be required to be made more definite and certain as to matters that appear to be within the knowledge of the moving party or as to which adequate information is in his possession or available to him. Spurlin v. Colprovia Products Co., 185 S.C. 449, 194 S.E. 332.
In their exception relating to the refusal to grant the motion to require the complaint to be made more definite and certain, appellants do not specify which of the many aspects of the motion were erroneously denied, or in what respect error was committed as to any of them in particular. The single exception in that regard simply contends that Judge Lewis erred "in failing to grant the defendants' motion to make the complaint more definite and certain in the particulars referred to in the defendants' motion, upon the ground that the complaint is so indefinite and uncertain in the particulars referred to in the motion that the precise nature of the charges against the defendants is not apparent." Detailed discussion of each of the numerous divisions and subdivisions of the motion is not necessary. We have carefully considered them in their application to the corresponding paragraphs and subparagraphs of the complaint, and in the light of the guiding principles hereinbefore mentioned; and we find no prejudicial error in the refusal of the motion.
Subject to their motions to strike and to require the complaint to be made more definite and certain, the defendants *490 served separate answers, substantially identical except for the fact that Mr. King's contained a counterclaim, which the answer of the corporate defendant did not, and for the further fact that most of the allegations of the corporate defendant's answer were made upon information and belief. The substance of Mr. King's answer was as follows:
For a first defense: Except for admission of the execution of the contract and the bond, a general denial.
For a second defense: Before and at the time of entering into the contract, the plaintiffs, knowing that King knew nothing about heating and air conditioning or the installation of such systems, urged him to have the Worthington Heating and Air Conditioning System installed by Strickland's Heating and Air Conditioning, and similar insistence was made by an official of the proposed tenant, B.C. Moore & Sons, for whom Strickland's had in another store installed a similar system that had proven satisfactory. Accordingly, the defendant King entered into a contract with Strickland's to install the heating and air conditioning system according to the specifications, for $10,335.00; but before any work could be commenced Strickland's went out of business, whereupon defendant, upon the insistence of the plaintiffs and the official of B.C. Moore & Sons, substituted, in the place of Strickland's, Southern Heating and Air Conditioning Co., a concern that handled the Worthington products. At the proper time during construction, Southern Heating and Air Conditioning Co. installed the heating and air conditioning in accordance with the specifications, "so far as the defendant knew", and one or more of the plaintiffs were present and inspected the installation and at no time objected to it as not being installed in accordance with the specifications. After completion of the work, plaintiffs and their tenant went into possession of the building and thereafter complaint was made to defendant on one occasion with respect to the heating and air conditioning, whereupon defendant had Southern Heating and Air Conditioning Company inspect the system and make the necessary corrections. *491 Defendant has paid to Southern Heating and Air Conditioning Company all but $843.00 of the amount due it under its contract with him, and is ready and willing to pay this balance upon receipt of a statement from plaintiffs to the effect that the heating and air conditioning system as installed by said company is in every respect acceptable to plaintiffs.
For a third defense: The contract between plaintiffs and defendant provided among other things that the final payment to defendant should be made upon "final completion of the building and its acceptance by the owners and lessees." On or about January 15, 1951, the building having been completed and plaintiffs, through their tenant, having taken possession, plaintiffs accepted the building and paid to the defendant the full balance owing to him under the contract and plaintiffs thereby waived all alleged defects in the building and are precluded from now claiming that it was not properly constructed in accordance with the plans and specifications.
For a fourth defense: Plaintiffs are now precluded from claiming that the building was improperly constructed, because at least once each week during the construction one or more of the plaintiffs inspected the building to determine, as they were well able to, whether or not proper materials were being used and proper workmanship employed in the construction; and at no time did plaintiffs make any objection as to either materials or workmanship.
For a fifth defense: The boiler called for in the specifications was not installed, but another boiler was installed with plaintiffs' approval.
For a sixth defense: Defendant's failure to complete the building within the period of 120 days was due to weather conditions and his inability to obtain steel; and plaintiffs knew of this situation and acquiesced in the delay.
For a seventh defense: The exposed brickwork on the front and side of the building is not according to specifications, *492 but the change in the type of brick was made with plaintiffs' approval and the brick actually used cost more than the brick called for by the specifications.
For an eighth defense: Defendant was ready and willing to install the cornices as called for in the contract, but before he was permitted to do so the plaintiffs or their agent or employee attempted to install them without defendant's consent and not in accordance with the contract and specifications; and any expense thus incurred by plaintiffs was not authorized by defendant.
For a counterclaim: Subsequent to the making of the original contract, and during the construction of the building, defendant, pursuant to a contract or contracts entered into with plaintiffs, did additional work and furnished additional materials in the construction of the building which plaintiffs accepted and for which they are indebted to defendant in the sum of $2,600.00.
Appellants' motion to bring in Southern Heating and Air Conditioning Company as an additional party defendant was addressed to the discretion of the circuit judge, and we find no error in his refusal to grant the motion. The controversy here involved is between respondents on the one hand and appellants on the other, and its complete determination can be had without bringing in Southern Heating and Air Conditioning Company. Cf. Simon v. Strock, 209 S.C. 134, 39 S.E. (2d) 209, 168 A. L.R. 596; Fouche v. Royal Indemnity Co., 212 S.C. 194, 47 S.E. (2d) 209.
There remain for consideration appellants' exceptions, eight in number, charging error on the part of Judge Brailsford in denying their motion for an order requiring respondents "to submit to oral examination under oath, by the defendants' attorneys, as to all matters and things alleged and referred to in the pleadings and other papers in this cause." In this connection appellants contend that under Section 26-503 of the 1952 Code a party is entitled, as a *493 matter of right, to require his adversary to submit to oral examination prior to trial in the absence of good cause to the contrary shown by the party to be examined, and that the moving party is required to show good cause only when the examination is to be had in a county other than that in which the adversary resides or may be served with summons for his attendance. Such construction of Section 26-503 being irreconcilable with that given in People's Bank of Hartsville v. Helms, 140 S.C. 107, 138 S.E. 622; United States Tire Co. v. Keystone Tire Sales Co., 153 S.C. 56, 150 S.E. 347, 66 A.L.R. 1264; Mahaffey v. Southern Railway Co., 175 S.C. 198, 178 S.E. 838, and Williams v. Southern Life Insurance Co., 224 S.C. 415, 79 S.E. (2d) 365, appellants sought and obtained permission to argue against these decisions.
Prior to the amendment of March 1, 1923, XXXIII Stat. at Large, 170, the code section relating to examination of an adversary before trial read as follows:
"The examination, instead of being had at the trial, * * * may be had at any time before trial, at the option of the party claiming it, before a Judge of the Court, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless, for good cause shown, the Judge order otherwise. But the party to be examined shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance."
In Fox v. Clifton Mfg. Co., 122 S.C. 86, 114 S.E. 700, decided in December, 1922, it was held, by a divided court, that under this section a party was entitled, as a matter of right, to examine his adversary before trial without showing any cause or assigning any reason therefor beyond the mere fact that the person sought to be examined was a party to the action.
At the next ensuing session of the General Assembly the code section above quoted was amended by changing the *494 period after the word "attendance" to a semi-colon, and adding the words "`Nor unless it be upon the order of a Judge of the Court granted after four days' notice, and upon good and sufficient cause being shown therefor'." Act of March 1, 1923, XXXIII Stat. at Large, 170.
The statute as so amended was first considered by this court in 1926 in the case of White v. Bankers' National Life Insurance Co., 134 S.C. 183, 132 S.E. 171, in which it appears to have been conceded that the effect of the amendment was to deny the right to examine an adversary before trial except upon an order of court granted after four days' notice and a showing of good and sufficient cause therefor. In People's Bank of Hartsville v. Helms, supra, decided in 1927, Mr. Justice Cothran, speaking for a unanimous court, expressly so construed it; and to this construction the court has since consistently adhered. United States Tire Co. v. Keystone Tire Sales Co., supra; Mahaffey v. Southern Railway Co., supra; Williams v. Southern Life Insurance Co., supra. Appellants' contention here is that the limitations imposed by the 1923 amendment are applicable only to pretrial examination of an adversary in a county other than that in which he resides or can be served with summons for his attendance. Basic to this contention is the fact that prior to the amendment the last sentence of the section, to which the amendment was added, was concerned only with prohibition of examination elsewhere than in a county where the person sought to be examined resided or could be served. But we do not agree with this reasoning. The limitations imposed by the amendment were no doubt inspired by the decision in Fox v. Clifton Mfg. Co., supra, as Mr. Justice Cothran suggested in the Helms case, and it seems clear to us that they were intended, as there held, to apply generally to pre-trial examination of the adversary.
In the Helms case it was declared that the code provisions for pre-trial examination of an adversary were a convenient substitute for the old bill of discovery in equity, and that the principles applicable to the earlier procedure should *495 largely regulate examination under the new. Accordingly we have held in and since the Helms case that while a party may examine his adversary before trial as to matters material to the examining party's cause of action or defense, the party examined cannot be required to disclose the evidence on which he intends to base his case. Appellant contends for a broader field of examination, and that, since Section 26-510 of the 1952 Code provides that "A party to an action may be examined as a witness at the instance of the adverse party * * * and for that purpose may be compelled in the same manner and subject to the same rules of examination as any other witness to testify, either at the trial or conditionally or upon commission," the pre-trial examination of an adversary under Section 26-503 was intended to be as unrestricted as the examination of any other witness. With this contention we do not agree, preferring to follow the construction announced in People's Bank of Hartsville v. Helms, supra, and to which this court has adhered for nearly three decades.
The motion for examination of respondents was addressed to Judge Brailsford's discretion. Planters Fertilizer & Phosphate Co. v. McCreight, 187 S.C. 483, 198 S.E. 405; Williams v. Southern Life Ins. Co., supra. No abuse of that discretion has been shown.
Respondents in due course moved to dismiss the appeal here upon the ground that none of the four orders concerned is appealable. Our consideration of the appeal on its merits renders disposition of the motion unnecessary.
All exceptions are overruled, and the orders of the lower court are affirmed.
BAKER, C.J., and STUKES, TAYLOR and OXNER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334969/ | 659 S.E.2d 664 (2008)
MIKE
v.
The STATE.
No. A07A2204.
Court of Appeals of Georgia.
March 10, 2008.
June Elizabeth Fogle and Gabrielle Amber Pittman, for Appellant.
Spencer Lawton Jr., Dist. Atty., and Ian Roger Heap Jr., Asst. Dist. Atty., for Appellee.
BERNES, Judge.
Moses Mike pled guilty to two counts of selling cocaine. The trial court imposed a *665 ten-year sentence of incarceration to be followed by a special period of probation. Mike appeals, contending that the trial court erred in imposing the special period of probation. We disagree and affirm.
The facts are undisputed. In March 2007, Mike pled guilty to two counts of sale of cocaine. He had previously been convicted of both possession and sale of cocaine. Pursuant to the terms of the parties' plea agreement, the state recommended that the trial court impose the statutory minimum sentence of ten years incarceration. OCGA § 16-13-30(d). See also State v. Jones, 265 Ga.App. 493, 594 S.E.2d 706 (2004). The state also argued that the trial court was required by OCGA § 42-8-35.2(a) to follow Mike's sentence of imprisonment with a special period of probation. Mike disagreed.
Mike contended that OCGA § 42-8-35.2(a) extended the statutory minimum sentence set forth in OCGA § 16-13-30(d) and that the two statutes conflicted. Mike argued that in view of this conflict, he was entitled to the lesser penalty set forth in OCGA § 16-13-30(d).[1] The trial court rejected Mike's argument and sentenced Mike to serve ten years in confinement, to be followed by six years of special probation on each count, to run concurrently. This appeal followed.
1. We do not agree, as contended by Mike, that the relevant sentencing statutes conflict. OCGA § 16-13-30(d) provides that:
Except as otherwise provided, any person who [possesses with the intent to distribute] a controlled substance in Schedule I or Schedule II shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he or she shall be imprisoned for not less than ten years nor more than 40 years or life imprisonment.
(Emphasis supplied.)
In turn, OCGA § 42-8-35.2(a) provides:
Notwithstanding any other provisions of law, the court, when imposing a sentence of imprisonment after a conviction of a violation of [OCGA § 16-13-30(d)] . . . shall impose a special term of probation of three years in addition to such term of imprisonment; provided, however, upon a second or subsequent conviction of a violation of the provisions of [OCGA § 16-13-30(d)], the special term of probation shall be six years in addition to any term of imprisonment.
(Emphasis supplied.)
"[A] criminal statute must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted." (Punctuation and footnote omitted.) Bradford v. State, 287 Ga. App. 50, 52-53(1), 651 S.E.2d 356 (2007). Nevertheless, criminal statutes "must be read according to the natural and obvious import of their language, and their operation should not be limited or extended by application of subtle and forced interpretations." (Punctuation and footnote omitted.) Id. at 53(1), 651 S.E.2d 356. Here, the plain language of the statute requires that a term of special probation be served "in addition to any term of imprisonment" rendered under OCGA § 16-13-30(d). OCGA §§ 16-13-30(d); 42-8-35.2(a). The two statutes thus do not conflict.
2. Because we find that the two statutes do not conflict, Mike's claim that OCGA § 42-8-35.2 was implicitly repealed by the 1996 amendment to OCGA § 16-13-30 is without merit. See Ga. L. 1996, p. 1023 § 1.1.
Judgment affirmed.
BLACKBURN, P.J., and RUFFIN, J., concur.
NOTES
[1] Mike also raised a constitutional challenge which he has not asserted in this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334949/ | ROBERT LEE DOTSON, Plaintiff,
v.
ROBERT S. DAVIS, Defendant.
No. COA07-789
Court of Appeals of North Carolina.
Filed April 1, 2008
This case not for publication
Jeffrey J. Walker, P.A., by Jeffrey J. Walker and Tamara C. DiVenere, for Plaintiff-Appellee.
Willardson Lipscomb & Miller, L.L.P., by William F. Lipscomb, for Defendant-Appellant.
STEPHENS, Judge.
On 2 November 2004, Plaintiff Robert Lee Dotson ("Plaintiff"), driving a farm tractor, and Defendant Robert S. Davis ("Defendant"), driving a dump truck loaded with gravel, were involved in a collision, and Plaintiff was injured. A jury determined that Defendant was negligent in causing the collision, that Plaintiff was contributorily negligent in causing the collision, and that Defendant had the last clear chance to avoid the collision. Accordingly, the jury awarded Plaintiff $118,055.25 in damages and costs. From the judgment entered on the jury's verdict, Defendant appeals. The sole issue raised by this appeal is whether the trial court erred in submitting the issue of last clear chance to the jury. We hold that the trial court should not have submitted this issue to the jury and accordingly reverse the trial court's judgment.
Although both parties presented evidence at trial, the basic facts are undisputed. Plaintiff was driving his tractor approximately ten miles per hour west down a two-lane road on a clear, sunny day. At the area in question, the road was straight, flat, and divided by a broken yellow line. Three dump trucks, also traveling west, passed Plaintiff in the road's eastbound lane. After the dump trucks passed, Plaintiff motioned for an SUV to pass him, and the SUV passed him. Defendant was behind the SUV in his dump truck, which weighed 49,000 pounds, and was traveling between fifty and fifty-five miles per hour. Defendant moved into the eastbound lane to pass Plaintiff's tractor. Defendant signaled his lane change but did not blow his horn or otherwise indicate to Plaintiff his intent to pass. Plaintiff began making a left turn across the center line. Immediately upon seeing Plaintiff begin his turn, Defendant applied his brakes. The collision occurred in the eastbound lane.
Plaintiff testified he first saw Defendant "maybe 100 yards" behind him traveling in the west bound lane. Plaintiff testified that after the SUV passed him, he was using his left arm to signal his intention to turn left across the center line and that he never motioned for Defendant to pass him. Plaintiff testified he turned his tractor across the center line "about a foot and a half or two feet." Plaintiff testified that the second time he saw Defendant, Defendant was "100 feet" behind him and "headed into [the] tractor[.]" The next thing Plaintiff remembered was "laying in [a] ditch[.]"
Defendant testified that he moved into the eastbound lane to pass "about 200 feet" behind Plaintiff. Defendant testified that Plaintiff was not signaling a left turn and never looked back or to his left before beginning his turn. Defendant testified he "hit [his brakes] hard" as soon as Plaintiff began turning left, but that "[t]here was just no way possible" to avoid the collision. On direct examination, Defendant estimated that "three seconds" passed between the time Plaintiff began his left turn and the time of impact. When questioned about this testimony on cross-examination, Defendant testified that the accident happened three seconds after he moved into the eastbound lane.
At the charge conference, Defendant argued to the trial court that the evidence was insufficient to submit the issue of last clear chance to the jury. The trial court disagreed and submitted the issue for the jury's consideration. Defendant repeats his argument to this Court.
"The issue of last clear chance must be submitted to the jury if the evidence, viewed in the light most favorable to the plaintiff, will support a reasonable inference of each essential element of the doctrine." Bass v. Johnson, 149 N.C. App. 152, 158, 560 S.E.2d 841, 845 (2002) (citing Nealy v. Green, 139 N.C. App. 500, 504, 534 S.E.2d 240, 243 (2000)). If there is no evidence, or if the evidence is so slight "'as not reasonably to warrant the inference of the fact in issue or furnish more than material for a mere conjecture, the court will not leave the issue to be passed on by the jury.'" Mt. Olive Mfg. Co. v. Atl. Coast Line R.R. Co., 233 N.C. 661, 670, 65 S.E.2d 379, 386 (1951) (quoting Poovey v. Int'l Sugar Feed Number Two Co., 191 N.C. 722, 726, 133 S.E. 12, 14 (1926)). Where the issue of last clear chance is erroneously submitted to the jury, and where the jury resolves the issues of negligence and contributory negligence in the affirmative, and the issue of last clear chance in the affirmative, the defendant is entitled to judgment. Mt. Olive Mfg. Co., 233 N.C. 661, 65 S.E.2d 379.
The elements of the doctrine of last clear chance are
(1) that the plaintiff negligently placed himself in a position of helpless peril; (2) that the defendant knew or, by the exercise of reasonable care, should have discovered the plaintiff's perilous position and his incapacity to escape from it; (3) that the defendant had the time and ability to avoid the injury by the exercise of reasonable care; (4) that the defendant negligently failed to use available time and means to avoid injury to the plaintiff[;] and (5) as a result, the plaintiff was injured.
Parker v. Willis, 167 N.C. App. 625, 627, 606 S.E.2d 184, 186 (2004) (citing Kenan v. Bass, 132 N.C. App. 30, 32-33, 511 S.E.2d 6, 7-8 (1999)), disc. review denied, 359 N.C. 411, 612 S.E.2d 322 (2005). The doctrine is properly invoked "only in the event it is made to appear that there was an appreciable interval of time between the plaintiff's negligence and his injury during which the defendant, by the exercise of ordinary care, could or should have avoided the effect of plaintiff's prior negligence." Where there is no evidence that a person exercising a proper lookout would have been able, in the exercise of reasonable care, to avoid the collision, the doctrine of last clear chance does not apply.
Watson v. White, 309 N.C. 498, 506, 308 S.E.2d 268, 273 (1983) (quoting Mathis v. Marlow, 261 N.C. 636, 639, 135 S.E.2d 633, 635 (1964)) (emphasis added).
Defendant argues there was no evidence he had the time and means to avoid the injury to Plaintiff. We agree. Under the facts of this case, the relevant interval of time is the time which elapsed between the moment Plaintiff's tractor crossed over the center line and the moment of the collision. Viewing the evidence in the light most favorable to Plaintiff, this interval of time was three seconds. There is no evidence that Defendant could have brought his 49,000-pound dump truck, traveling at a speed of fifty to fifty-five miles per hour, to a complete stop during that interval. Further, it is undisputed that Defendant was keeping a proper lookout and applied his brakes "hard" as soon as Plaintiff started to turn left. Additionally, there is no evidence that Defendant could have maneuvered his dump truck to avoid the collision, particularly given its weight and the speed at which it was traveling. We find apt the words of Judge Hill in Pippins v. Garner, 67 N.C. App. 484, 486, 313 S.E.2d 245, 246 (1984):
[This] is a case of negligence and contributory negligence rather than last clear chance. While the defendant may have had the last possible chance to avoid the injury, defendant had not the time nor the means to have the last clear chance to entitle the submission of the question to the jury.
Because the trial court erroneously submitted the issue of last clear chance to the jury, and because the jury resolved the issues of negligence and contributory negligence in the affirmative, Defendant is entitled to judgment. Mt. Olive Mfg. Co., 233 N.C. 661, 65 S.E.2d 379.
REVERSED.
Chief Judge MARTIN and Judge STEELMAN concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334925/ | 211 Ga. 636 (1955)
88 S.E.2d 26
NORTHWESTERN UNIVERSITY
v.
CRISP, executor.
18957.
Supreme Court of Georgia.
Argued May 9, 1955.
Decided June 13, 1955.
*640 Thos. O. Marshall, Jr., Dykes, Marshall & Dykes, Robert B. Troutman, Griffin B. Bell, Spalding, Sibley, Troutman & Kelley, W. K. Meadow, Ralph K. Ball, for plaintiff in error.
Smith & Undercofler, Foley, Chappell, Kelly & Champion, contra.
CANDLER, Justice.
(After stating the foregoing facts.) 1. The Code, § 38-2301, provides: "In all counties, either party litigant in any court of record in any such county may, without any order or commission, take the deposition of any witness or witnesses in any case, whether resident in the county or not, upon giving the opposite party five days' notice of the time and place, with the names of the witnesses. The commissioner before whom the evidence under this section is to be taken shall have power, on notice being given to the opposite party or his attorney, or on subpoena duces tecum being served five days previously to the hearing, to require any witness or party to produce, at the hearing, books, writings, and other documents in his possession, power, custody, or control. . ." The notice given by the caveator of its intention to take the deposition of Dr. Russell Thomas and the subpoena duces tecum which the commissioner issued requiring the production of documents were under the quoted Code section. As shown by our statement of the facts, Judge Rees denied the motion of Dr. Thomas to suppress the deposition notice and to quash the subpoena duces tecum but restricted the scope of the examination and limited it to financial transactions between Dr. Thomas and Mrs. Mix during the twelve months immediately prior to her death. This was error. When depositions are taken, the order and scope of the examination must conform to the rules of the superior court governing the examination of witnesses in trials at law. Code § 38-2305; Realty Construction Co. v. Freeman, 174 Ga. 657 (163 S.E. 732). In *641 Parker v. Chambers, 24 Ga. 518, it was said in headnote one "a witness may be twice examined by the same party, by commission, in the same case," and in the corresponding division of the opinion at page 524, it was held that "There can be no legal objection to a second examination of a witness by commission, for the purpose of explaining evidence before given, or of testifying to additional facts." As to all issues made by the pleadings in this case, the caveator had a right to examine Dr. Thomas fully and exhaustively. Such a right is basically fundamental to our system of jurisprudence and no court has power to restrict or limit it. See, in this connection, Park v. Zellars, 139 Ga. 585 (1) (77 S.E. 922).
2. Over an objection by caveator's counsel that it was irrelevant, immaterial and prejudicial because the financial condition of Northwestern University had nothing to do with the outcome of this case, Charles Wesley Brashares was, in response to a question asked by counsel for propounder, permitted to testify that the assets of Northwestern University would run into millions, $93,000,000 being not far wrong. Special ground 6 of the motion for new trial assigns error on the admission of this testimony. The general rule is that evidence of the wealth or worldly circumstances of a party litigant is never admissible, except in those cases where position or wealth is necessarily involved. Higgins v. Cherokee Railroad, 73 Ga. 149; Smith v. Satilla Pecan Orchard &c. Co., 152 Ga. 538 (3) (110 S.E. 303); 10 Rawle C. L. 957, § 130. We are wholly unable to perceive the relevancy of such testimony to any issue made in this case; it had no tendency to illustrate any contested question, and for that reason was incompetent. A different holding is not required by the ruling in Oxford v. Oxford, 136 Ga. 589 (1) (71 S.E. 883).
3. While Charles F. Crisp, the propounder, was being crossexamined by counsel for the caveator, he was asked the following question: "You were not told anything about her physical condition, as you now recall?" To which he answered: "Well, Dr. Thomas had discussed this matter of changing this codicil, or changing her will, with her, and he told me he was going to try to get her up and feeling well so she could fix it so the corpus of her estate could be left down here instead of going to Northwestern, but later on he told me it looked like Mrs. Mix was not *642 going to get up and the codicil had better be executed in the hospital." Q. "You did not hear Dr. Thomas and Mrs. Mix discuss this will at all?" A. "Not together." A motion to rule out that part of the witness's answer relating to a conversation between Dr. Thomas and Mrs. Mix respecting a change in her will was overruled. The motion to rule out being based on the ground that the witness was not present, did not hear the conversation between Dr. Thomas and Mrs. Mix and could, therefore, have no personal knowledge of it, should have been sustained; it was error not to do so. This is so elementary that citation of authority is unnecessary.
4. Special ground 8 alleges that the court erred in refusing to allow in evidence a certified copy of Dr. Charles L. Mix's will, together with a certified copy of the appointment of appraisers and the oath of the appraisers of the estate of Dr. Mix; also a certified copy of an application which Mrs. Jeannette C. Mix, as executrix of Dr. Mix's estate, made for three percent of $403,544 for compensation due her as such executrix. These documents were excluded as having no relevancy to any issue made by the pleadings. In this ruling we do not concur. When the excluded documents were offered as evidence, caveator's counsel stated to the court that they were offered for the purpose of showing that Dr. Mix, by his will, left his entire estate of $403,544 to his wife, Mrs. Jeannette C. Mix; that this was the source of the greater part of her estate; and that caveator expected to show that Dr. Mix was a member of the medical faculty of Northwestern University for years. Under the rulings in Pergason v. Etcherson, 91 Ga. 785 (1) (18 S.E. 29); Holland v. Bell, 148 Ga. 277 (1) (96 S.E. 419); Murphy v. Murphy, 152 Ga. 275 (1) (109 S.E. 903); and Shaw v. Fehn, 196 Ga. 661 (2) (27 S.E.2d 406), testimony showing the source from which the property disposed of by the will came into the decedent's possession was relevant and material in this case; hence, it should have been admitted.
5. Donald B. Caldwell, a witness for the caveator, was, on direct examination, asked: "Please tell us what she [Mrs. Jeannette C. Mix] looked like; just give us her appearance when you first saw her lying there in the bed on your first visit." A. "Well, I was shocked at her appearance to start with. She was very *643 thin and all skin and bones, pratically, and a very sallow pallor on her face, like a dead person. And, well, except for her facial features, the basic features, I would not have known her." The witness's answer had reference to her appearance on Monday before the codicil in question was executed on Thursday night. On objection by the propounder's counsel the court excluded all of the answer except the words, "She was very thin and all skin and bones, pratically, and a very sallow pallor on her face." Special ground 9 of the motion for new trial complains of this exclusion. The record discloses that the witness was a near relative of Mrs. Mix, she being his aunt. He had known her well all of his life, had visited her about a year and a half before her death, had made visits to her a good many times prior to her last illness, had visited her after she moved to Americus, had visited her in Gainesville, Florida, when her husband was alive, had visited her frequently when he was a boy and also as a young man when she and her husband lived in Chicago. He came from California to Americus to see her on September 21, 1953, after he had learned from Dr. Thomas that she was critically ill. Although he saw her daily from Monday until the following Sunday, she never spoke to him nor recognized him. We think the excluded evidence was clearly admissible; it was a fact which the jury could properly consider in determining the physical and mental condition of the testatrix. In Bowman v. Bowman, 205 Ga. 796 (55 S.E.2d 298), this court held that an attack on a will as having been obtained by undue influence may be supported by a wide range of testimony since such influence can seldom be shown except by circumstantial evidence and that the amount of influence necessary to dominate a mind impaired by age or disease may be decidedly less than that which is necessary to control a strong mind. In 20 Am. Jur. 719, § 859 it is said: "Lay witnesses have been permitted to testify that a person looked bad, that he looked feeble, that he was lame or could scarcely walk, that he appeared to be very sick and that he was so ill as to be beyond asking anything or in a condition to know anything." This statement was quoted with approval in Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1, 8 (5 S.E.2d 214).
6. During the examination of J. H. Palmer, a witness for the caveator, he was asked: "Now, do you remember anything else *644 about how she looked at the times you saw her besides what you have already told us?" A. "She looked like somebody very, very sick." Mr. Palmer's answer was excluded by the court on objection thereto by the propounder's counsel and special ground 12 of the motion for new trial complains of this. Exclusion of this was erroneous. The witness had already testified that he was a cousin of the testatrix's deceased husband; that he had known Mrs. Mix for many years; that his relation to her was like a member of the family; that while in Michigan, he received a message that Mrs. Mix was very sick; that he hurried back to see her, arriving at the hospital on the morning of September 24, 1953; that she was at that time in bed, lying on her back and breathing very slowly and heavily; that he went from Cordele to Americus to see her every day; except one, from September 24, 1953, through October 1, 1953, but never spoke to her, never saw her with her eyes open and was discouraged about trying to wake her up. In Barfield v. South Highlands Infirmary, 191 Ala. 553, 565 (68 So. 30, 35), the court said: "We think any witness of ordinary intelligence may be allowed to testify that a person appeared to be very sick."
7. Special ground 13 of the motion for new trial alleges that the court erred in excluding from evidence the testimony of J. H. Palmer to the effect that he visited the testatrix each day beginning September 24, 1953, and until October 1, 1953, except one, for the purpose of delivering a message to her from her sister in Michigan from whence he had just returned and that each time he visited her, he did not deliver the message as the nurse on duty told him there was no use to arouse her as she would not recognize him. We see no error in the exclusion of this testimony. The message from the testatrix's sister would certainly have no relevancy; and what the nurse on duty told the witness would be hearsay evidence having no probative value.
8. On direct examination by the caveator's attorney, Mrs. Ike Hudson was asked: Q. "Will you describe Mrs. Mix's appearance the times you were in her room after the operation?" A. "Well, each time that I went in the room, she was just lying there with her eyes closed and did not say anything. She looked to me like she was in a coma." On objection the court ruled out the words, "She looked to me like she was in a coma."Special *645 ground 15 of the motion for new trial assigns error on this ruling. The witness, as the record discloses, had already testified that she was registered with the State of Georgia as a practical nurse; that she was employed by and on duty as such a nurse in the hospital where Mrs. Mix was a patient; that she saw her almost every day after her operation; and that she had known Mrs. Mix at least twelve years. From this opportunity to see and observe the condition of Mrs. Mix, the witness could testify as to the appearance of Mrs. Mix or how she looked to her and the exclusion of that part of her testimony to which there was an objection was erroneous.
9. Mrs. Ike Hudson, a witness for the caveator, on direct examination was asked: Q. "Did you try to have a conversation with Mrs. Mix?" A. "No, sir, she did not look like she could talk and I did not say anything to her." Propounder's counsel: "We move to rule out `she did not look like she could talk', it is not responsive." The objection was sustained. This was error. Her answer was responsive and she then gave her reason for not speaking to Mrs. Mix as she had a right to do. See Brown v. Wilson, 55 Ga. App. 262 (2) (189 S.E. 860).
10. The parties stipulated that Mr. W. W. Dykes, an attorney, would, if able to attend court, give stated testimony. The concluding paragraph of the stipulation reads: "It is also stipulated and agreed that all of this paper may be used as evidence in the trial of the caveat to the codicil of September 24, 1953, and in any postponement, continuance or retrial of said issue, no matter whether the said W. W. Dykes shall be in good health or even be in life at the time, provided ruled admissible by court." We construe the quoted paragraph to mean that no statement contained in the stipulation would be admitted as evidence on the trial of the cause unless ruled admissible as such by the court under applicable rules of evidence. The caveator offered the stipulation in evidence as a whole. On the ground that it was a conclusion, counsel for the propounder objected to the admission of the following stipulated statement: "That C. F. Crisp knew over the years that W. W. Dykes was Mrs. Mix's attorney." The court sustained the objection and excluded the stipulation as a whole and special ground 16 of the motion complains of this. As to this ruling, we find no error. The statement was a conclusion *646 of Mr. Dykes. "In the future of advancing psychology it may become possible for one person to look into the mind of another and testify what the latter knows. But at present the law treats such statements as conclusions, not facts." Slaughter v. Heath, 127 Ga. 747 (7), 759 (57 S.E. 69, 27 L. R. A. (NS) 1). The stipulated testimony of Mr. Dykes being offered as a whole, and the assignment of error being upon the ruling rejecting the entire stipulation, and since a part of the offered stipulation was clearly inadmissible, it was not erroneous, as contended, to disallow the stipulation in its entirety. Dorsey v. Dorsey, 189 Ga. 662 (4), 671 (7 S.E.2d 273).
11. Donald B. Caldwell, a witness for the caveator, was, on direct examination, asked: Q. "From your observation of your aunt over your lifetime, and during this visit you had there in this week of her last illness and all of what transpired during that visit, I will ask you to state whether or not, in your opinion, at the time this alleged signature was put on this paper she had sufficient mental capacity to know what property she owned, who her relatives were, and whether or not she could have devised a reasonable plan or scheme to dispose of her property by will?" A. "Well, sir, I saw her a good many times but never in this kind of a condition; and I do not believe she could have told what she owned, or known enough about what she owned to do, at that time, to know what was going on. I believe she would have signed anything that was put in front of her at that moment." On objection thereto the answer was excluded and special ground 18 complains of this ruling. This special ground of the motion is meritorious. The testimony objected to was a part of the following testimony of the witness: He was present when the codicil was signed on the night of September 24, 1953; that he saw and observed the condition of Mrs. Mix, his aunt, at that time; that he heard Dr. Thomas say to her, "if that is what you want you will have to sign the paper, or have to sign the one or the other"; that she was then raised up in bed by Dr. Thomas; that someone took hold of her wrist or arm (indicating); that attorney Russell Thomas put the pen in her hand; that he closed her fingers on the pen; that she then moved her hand on the paper; that she was then, in his opinion, absolutely incapable of understanding what was being said to her. The *647 record also discloses that several times during the examination of the witness Caldwell, he was permitted to testify, without objection, that he did not believe and was sure Mrs. Mix did not know what she was doing that night. See Merritt v. Wallace, 173 Ga. 435 (160 S.E. 610).
12. Special grounds 10 and 11 of the motion have been expressly abandoned, and special ground 17 which complains of the court's refusal to allow in evidence a key to Mrs. Mix's safety deposit box which came from the possession of Mr. W. W. Dykes raises a question of so little importance as not to merit consideration.
13. It is alleged in special ground 4 of the motion for new trial that the court erred in directing a verdict for the propounder. A trial judge can only direct a verdict "Where there is no conflict in the evidence, and that introduced with all reasonable deductions or inferences therefrom, shall demand a particular verdict." Code § 110-104. "It is error to direct a verdict, except where there is no conflict in the evidence introduced as to the material facts, and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict." Norris v. Coffee, 206 Ga. 759 (58 S.E.2d 812), and citations. "In any case where the evidence may be subject to more than one construction, or where more than one inference may be drawn, even from undisputed facts, the duty of solving the mystery should be placed upon the jury." Marshall v. Woodbury Banking Co., 8 Ga. App. 221 (68 S.E. 957). It is true that immaterial conflicts do not render the direction of a verdict erroneous. Skinner v. Braswell, 126 Ga. 761 (2) (55 S.E. 914). If, however, there is a material conflict in the evidence upon a material issue, the trial judge cannot usurp the province of the jury and instruct them to render a given verdict. Duncan v. Mayfield, 209 Ga. 882 (76 S.E.2d 805). This section ought not to be extended beyond the plain and literal meaning of its words. Williams v. State, 105 Ga. 814, 816 (32 S.E. 129, 70 Am. St. Rep. 82). A judge cannot properly direct a verdict because he may think the strength or weight of the evidence is on one side, or because he might grant a new trial if a verdict should be returned against what he thinks is the preponderance of the evidence. Blackburn v. Lee, 137 Ga. 265 (73 *648 S. E. 1). Probate of the codicil of September 24, 1953, to the will of Mrs. Mix was objected to on the grounds that the testatrix was mentally incapable of executing it, and that it was executed in consequence of undue influence exercised over her. If either or both grounds be true, the codicil ought not to be probated, or if there is a material conflict in the evidence respecting either or both, it was error for the judge to direct a verdict. "A person has testamentary capacity who understands the nature of a testament or will, viz., that it is a disposition of property to take effect after death, and who is capable of remembering generally the property subject to disposition and the persons related to him by the ties of blood and of affection, and also of conceiving and expressing by words, written or spoken, or by signs, or by both, any intelligible scheme of disposition. If the testator has sufficient intellect to enable him to have a decided and rational desire as to the disposition of his property, this will suffice." Slaughter v. Heath, supra. "It is well settled that a non-expert witness may give his opinion as to the sanity of another person, based upon his acquaintance with him and the manner, appearance, and conduct of such person during the time that the witness has known him." Glover v. State, 129 Ga. 717 (5) (59 S.E. 816); Harris v. State, 155 Ga. 405 (4) (117 S.E. 460); Compton v. Porterfield, 155 Ga. 480 (117 S.E. 464); Dyar v. Dyar, 161 Ga. 615 (131 S.E. 535). "Undue influence which operates to invalidate a will is such influence as amounts either to deception or to force and coercion, destroying free agency." Bohler v. Hicks, 120 Ga. 800 (5) (48 S.E. 306); Potts v. House, 6 Ga. 324 (50 Am. D. 329); Thompson v. Davitte, 59 Ga. 472 (3). Not all persuasion or influence is "undue." Ward v. Morris, 153 Ga. 421 (3) (112 S.E. 719), and citations. The test is whether the testator was mentally incapable or was unduly influenced at the time the will was signed. Brown v. Kendrick, 163 Ga. 149, 168 (135 S.E. 721); Fehn v. Shaw, 199 Ga. 747 (35 S.E.2d 253); Ware v. Hill, 209 Ga. 214 (71 S.E.2d 630). "The very nature of a will requires that it should be freely and voluntarily executed; hence, anything which destroys this freedom of volition invalidates a will; such as fraudulent practices upon the testator's fears, affections, or sympathies, duress or any undue influence, whereby the will of another is substituted for the wishes of the *649 testator." Trust Company of Georgia v. Ivy, 178 Ga. 629, 641 (173 S.E. 648); Code § 113-208. It was held in Dean v. Littleton, 161 Ga. 651 (131 S.E. 507), that a doctor occupies a confidential relationship with his patient; in Norman v. Hubbard, 203 Ga. 530 (47 S.E.2d 574), that nurses were in a confidential relationship to the patient; and in Jesse Parker Williams Hospital v. Nisbet, 191 Ga. 821, 840 (14 S.E.2d 64), that a close business adviser and consultant was in a confidential relationship with his client. In Bowman v. Bowman, supra, it was said: "Where a will is attacked as having been obtained by undue influence, since such influence can seldom be shown except by circumstantial evidence, the attack may be supported by a wide range of evidence, such as a confidential relationship between the parties; the reasonableness or unreasonableness of the disposition of the testator's estate; diseases affecting the strength of mind of the testator; his dealings and associations with the beneficiary; his habits, motives, feelings; his strength or weakness of character; his family, social and business relations; his mental and physical condition at the time the will was made; his manner and conduct; or any other proved fact or circumstance going to show the exercise of undue influence on the mind and will of the testator. On such an issue there may be taken into account the peculiar facts and circumstances surrounding the issue, and acts, conduct, and circumstances may constitute undue influence when exercised on a person of failing mind, poor health, and other mental and bodily enfeeblements, which would not be such undue influence as to affect a will executed by a person of sound mind, good health, and intelligence."
In this case, certain undisputed facts appear in the record. When the codicil under attack was executed, the testatrix was 87 or 88 years old. She had cancer and had undergone an operation on August 27, 1953. After her operation, two nurses were kept on duty with her at all times until her death on October 2, 1953. Dr. Russell Thomas had been her personal physician, close business adviser and consultant for about five years before the codicil was made on September 24, 1953. She had been in Americus-Sumter County Hospital since January, 1953. Dr. Thomas advised Donald Caldwell, her nephew, that she was critically ill, and if he wanted to see her alive he had better come *650 at once. Caldwell came from California, arriving in Americus on September 21, 1953. He went to the hospital with Dr. Thomas, but Mrs. Mix did not recognize him or speak to him. He saw her daily during that week and she never spoke to or recognized him on any visit nor did he hear her speak to anyone else. On September 23, Donald Caldwell, Dr. Thomas and two attending nurses witnessed a scrawl which Mrs. Mix put on a check for $22,104.04. Donald Caldwell and Dr. Thomas went to the Bank of Commerce on the morning of September 24, 1953, and talked with Charles F. Crisp about the estate of Mrs. Mix. During this conversation, Mr. Crisp was slow to answer, talked indefinitely and kept looking at Donald Caldwell until Dr. Thomas said, "Oh, don't mind Donald, he is on our side." During the same conversation, Dr. Thomas, speaking to Mr. Crisp, said: "How do you think she would react to you, me and Donald doing what she wanted done and doing it in Sumter County where we will know that it is done, and I believe that is what she wants done and I believe she will appreciate the opportunity to have it done that way." During the same morning and after Mr. Crisp failed to get a copy of Mrs. Mix's will elsewhere, he opened her safety deposit box and copied from her original will the item respecting a bequest to Northwestern University, as trustee. Dr. Thomas employed his nephew, attorney Russell Thomas, to prepare a codicil to the original will of Mrs. Mix, furnishing him the information obtained by Mr. Crisp and instructing him as to the contents of the codicil he was to prepare. During the afternoon of the same day, attorney Thomas, as he testified, "called on her [Mrs. Mix] to make certain that she was capable of executing her last will and testament." On this visit he was accompanied by Dr. Thomas, but neither of them informed Mrs. Mix that he had been retained to prepare a codicil to her will; there was no discussion of the codicil while they were with Mrs. Mix. The codicil was executed during the night of September 24, 1953, between 10 and 11 o'clock. The codicil was delivered to Mr. Crisp the following morning by Dr. Thomas, and the former attached it to her original will. Mrs. Mix, on December 3, 1952, drew a check on her bank account payable to Dr. Russell Thomas for the sum of $15,000 with a notation thereon: "For loan." On June 17, 1953, she drew another check *651 on the same bank payable to Dr. Russell Thomas for the sum of $15,000 with a notation thereon: "For loan, no Int." These checks were endorsed by Dr. Thomas and paid by the bank. An inventory which Mr. Crisp, the executor, filed in November, 1953, did not show these loans as assets of the estate of Mrs. Mix. These transactions first came to light when an audit of Mrs. Mix's estate was being made for income-tax purposes during March, 1954. Dr. Thomas had given Mrs. Mix no note or other evidence of indebtedness for the loans. He had not disclosed the fact that he owed the estate of Mrs. Mix $30,000. He admitted the indebtedness when Mr. Crisp mentioned it to him. No part of the loans has been repaid by Dr. Thomas. On August 17, 1953, Mrs. Mix's signature was bold, clear, and entirely legible; on September 10 and 17, 1953, it was barely legible; and on September 23 and 24, 1953, it was wholly illegible, being only a scrawl or scratch. From August 27, 1953, until 10:45 p. m. on September 24, 1953, Mrs. Mix received 100 shots of potent narcotics and 74 barbiturates. She received 5 of these narcotics and 4 barbiturates on September 24, 1953. The last shot of Dolophine with Dramamine, being twice the amount given her at 1:10 p. m., came at 7:15, about three hours before the codicil was brought to her room. Mrs. Mix had had no food or other nourishment except glucose for the four days preceding the night the codicil was executed. The quantity of glucose which she received was equal to from one-third to one-fourth the normal requirement for a bedridden person her age. An entry made on Mrs. Mix's bedside chart on September 24, 1953, at 10:30 p. m. shows: "Pulse weak, Resp. labored, Cond. poor." And one made on the same day at 10:45 p. m. shows: "Dr. Thomas here." Mrs. Mix did not have a high regard for the business ability of Donald B. Caldwell, her nephew; she thought he did not handle money too well. Dr. Thomas did not testify on this trial of the case.
The three witnesses to the codicil testified to the formalities of execution as required by law, to the testamentary capacity of Mrs. Mix at the time of the execution of the codicil and further that she acted freely and voluntarily in making it. The propounder also introduced other evidence.
Donald B. Caldwell, a witness for the caveator, testified: "As far as I know this paper was first presented to my aunt that same *652 Thursday night some time between ten and eleven; she was in her bed then in the hospital; when we got to the room, Dr. Thomas went in first and then the lawyer and I brought up the rear; this was some time between ten and eleven on Thursday night, September 24, and by the time I got in the room I met the nurses coming out and then I went on in and Dr. Thomas walked up to the bed as usual; the lawyer stood at the foot of the bed and, as I remember, I went on around and Dr. Thomas started to talk to my Aunt Jeannette; Dr. Thomas said to her something like this: `Madam, you know we have talked a good deal about my taking care of matters for you in connection with the estate; is that what you want?', and she seemed to nod her head up and down a little, and then he went on and he said about like this: `Well, Charles Crisp and Donald and I have been talking things over about how best to handle things, matters for you, and so I had a paper prepared calling for Charles and Donald and I to be your trustees to handle everything just the way you want it; if that is what you want, you will have to sign it'; that is just what he said; she did not say anything; the lawyer never said anything at all the time he was there except when the doctor told him to bring the things up to the bed; he was so slow getting it up there Dr. Thomas was hurrying him up; well, first off he raised her up in bed; all the time that Dr. Thomas was talking to her along the line I outlined a moment ago she was in bed, her head back on the pillow as always, just the same as I had seen her before that time; when Dr. Thomas said, `if that is what you want, you will have to sign the paper, or have to sign the one or the other', she kind of held up her hand like this (indicating) and they raised her up; she still was not straight up, kind of leaning back like that; while he held her, she raised her hand like that (indicating) and someone took her wrist, her arm in here somewhere (indicating); the lawyer came and put the pen in her hand; I remember very well closing the fingers on her pen and then he wanted a book or something like that and she moved her hand on it as I saw it happen." Later this witness was asked: Q. "Now, what was your aunt's mental condition during the time you were in that room this evening, September 24, 1953, and at the time this scrawling was put on that paper, as claimed to be her signature? What was her mental *653 condition?" A. "I didn't think she knew what was going on." Q. "Did she, in your opinion, was she capable of understanding what was being said to her?" A. "Absolutely not. At no time in there was the word will or codicil used in her presence by anyone; the document was never read to her by anyone before she put this scrawl on there in the manner I have described; I cannot recall a single time while I was down there on that visit that Mrs. Mix acted like she knew me; she never showed any sign that she recognized me at any time." Dr. Arthur P. Richardson, a witness for the caveator, testified: "When a person is going under the influence of a narcotic or barbiturate, the first function most apt to be modified would be the emotional function and very closely related to this would be the capacity to carry out rational reasoning; this would all disappear before anyone would lose motor function such as signing your name and walking comfortably and so on; consciousness would be the last one to go; the first one to go would be emotional stability; secondly, the capacity to reason; at a somewhat later date motor function such as writing your name and consciousness would go last; a person who has lost his capacity to control emotional reaction and also his capacity to reason could still retain the motor faculty of writing his name; I don't believe the reverse would be the case; an individual who could not write his name, I think, would have already lost his ability to reason and also to control in a normal fashion his emotions . . . the signature on the check of September 23 indicates to me that in the absence of any evidence of physical damage, such as a broken arm or damage to the peripheral nerves, this would represent very serious mental deterioration; . . . I see no resemblance between the signature or scrawl on the codicil in contest and her original signature; that would indicate to me that there had been serious impairment of her mental capacity at this time." Dr. Reeves Chalmers, a witness for caveator, testified: "If you have a patient who is going under the influence of a narcotic or barbiturate, the capacity to reason and control emotions would be the first capacities lost; the loss of capacity to write, to use the muscles, is a very late accompaniment of the effects of narcotics; in other words, the narcotic affects the capacity to reason much more rapidly than they affect the capacity to use the muscles and, of *654 course, consciousness is usually lost last." Mrs. George McGarrah, a witness for caveator, testified that Mrs. Clarence Ames, one of the witnesses to the codicil in question, made the following statement to her on Saturday after the codicil was executed on Thursday night, "I probably got myself in trouble the other night . . . I signed as a witness to Mrs. Mix's will, . . . but I don't think she knew what she was doing she was more or less in a coma and Dr. Thomas had to hold her hand for her to sign the paper." Mrs. Ike Hudson, a witness for caveator, testified that Mrs. Clarence Ames, a few days after the codicil was executed made the following statement to her: "They wanted me to be a witness to the will, the document they were fixing, and I hestitated in signing it because I did not want to sign anything I know nothing about and Dr. Thomas told me, `Honey, go ahead and sign it, it is nothing only Mrs. Mix started making a will and got where she could not finish it and we are finishing it for her.' . . Dr. Thomas told Russell Thomas to put the pen in Mrs. Mix's hand and he, Russell Thomas, would tell her how to write her name. . . Dr. Thomas would kind of shake Mrs. Mix once in a while to keep her roused up for Mrs. Mix to sign the paper."
Standing alone, the admission of a prima facie case by the caveator, or the evidence introduced on the trial by the propounder, would have required the verdict directed by the court. But from the great mass of evidence in the record, we have pointed out facts and circumstances which would have authorized the jury to find that the codicil under attack was not the free and voluntary act of Mrs. Mix, but that Dr. Russell Thomas substituted his will for the wishes of Mrs. Mix when she did not, under the law, have testamentary capacity. A comparison of the bold, clear signature on the original will of October 27, 1939, with the misplaced, illegible scrawl or scratch on the purported codicil of September 24, 1953, strongly indicates a complete physical and mental collapse of the testatrix. On the issues raised by the pleadings, there was a material conflict in the evidence rendering it reversible error to direct a verdict in favor of the propounder. "No principle is more firmly established in American jurisprudence than that the court cannot direct a verdict where there is any reasonable inference supported by evidence *655 which would authorize a verdict to the contrary." Taylor v. Chattooga County, 180 Ga. 90 (178 S.E. 298).
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334966/ | 659 S.E.2d 426 (2008)
CITY OF ATLANTA
v.
WH SMITH AIRPORT SERVICES, INC. et al.
No. A07A1851.
Court of Appeals of Georgia.
March 10, 2008.
Tamara Nikki Baines and Robert Bryan Caput, Atlanta, for Appellant.
Arnall, Golden & Gregory, Charles T. Huddleston, Henry R. Chalmers, Sarina Maria Russotto, Frank J. Beltran and Douglas Vincent Chandler, for Appellees.
BERNES, Judge.
In this breach of contract suit arising out of the September 11, 2001 terrorist attacks and the resulting permanent security measures imposed at the Atlanta airport, the City of Atlanta appeals from the final order and judgment entered in favor of appellees WH Smith Airport Services, Inc., Airport Management Services, LLC, and Hartsfield Air Ventures ("HAV"). The City contends that it is entitled to a new trial because there was insufficient evidence to support the jury verdict. We disagree and therefore affirm.
If a jury has returned a verdict, which has been approved by the trial judge, then the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence *427 with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, [the verdict will be upheld on appeal].
(Footnote omitted.) Dailey v. Echols, 265 Ga.App. 459, 460, 594 S.E.2d 658 (2004). See also Dumas & Assocs. v. Nalecz, 249 Ga.App. 662, 663, 549 S.E.2d 730 (2001).
With these principles in mind, we turn to the record in the present case. The City of Atlanta owns the Hartsfield-Jackson Atlanta International Airport (the "Airport"). In April 1995, HAV entered into a lease with the City under which HAV agreed to lease retail concessions space at the Airport located in Concourse A and the Atrium, the lobby area prior to the main security checkpoint (the "Lease").[1] The Lease subsequently was amended twice and was set to expire in April 2007. Under the Lease, HAV's annual rental obligation owed to the City was based on either a percentage of annual gross revenues from the concession operations or a minimum annual guarantee, whichever was greater. Significantly, however, Section 11 of the Lease, "Suspension and Abatement," provided for an abatement of rent under certain defined circumstances. Specifically, Section 11 stated in relevant part:
If the number of enplanements from Concourse A is severely restricted for longer than seven (7) days by action of the United States of America or the State of Georgia, resulting in material adverse effect on Landlord [the City] or Tenant [HAV], either party hereto shall have the right, upon written notice to the other, to a suspension of this Agreement and an abatement of a just proportion of the services and facilities to be afforded hereunder, or a just proportion of the rental to become due hereunder from the time of such notice until such restriction shall have been removed; provided, however, after a suspension and abatement are properly implemented pursuant to this Section, Landlord shall determine, unilaterally and in good faith, the date when the suspension and abatement ends, and provide notice of such date to Tenant in writing. . . .
A separate provision in the Lease defined "enplanements" as the "[t]otal number of domestic revenue passengers boarding airline carriers."
Following the September 11, 2001 terrorist attacks, the federal government imposed far reaching security mandates on airports and air travel throughout the nation. On September 26, 2001, HAV sent written notice to the City that it was invoking its right to rent abatement under Section 11 of the Lease. In the letter, HAV asserted that the security measures recently imposed at the Airport had severely restricted the number of enplanements in Concourse A, causing a material adverse effect upon HAV's retail sales in the Atrium and triggering the relief afforded by Section 11. The City, however, would not agree to an abatement in the rent. For several years thereafter, HAV continued to argue that the security measures were adversely affecting its Atrium retail sales and continued to seek a rent abatement from the City, but to no avail. Ultimately, appellees brought the instant action against the City for breach of contract, contending that the City had breached Section 11 of the Lease by failing to provide an abatement in rent.[2]
A multi-day jury trial followed. During the trial, the trial court ruled that Section 11 was ambiguous and that its meaning could not be resolved through the rules of contract construction, allowed the parties to introduce parol testimony to support their respective *428 interpretations, instructed the jury on contract ambiguity, and instructed the jury that it was to resolve what the ambiguous language meant and what the parties intended. After hearing the combined evidence, the jury returned a verdict in favor of appellees in the amount of $3,288,083. The trial court thereafter entered its final order and judgment on the jury verdict.
Although the City lists six separate enumerations of error in its appellant brief, the City's sole argument on appeal is that there was insufficient evidence to support the jury verdict. Moreover, in discussing the sufficiency of the evidence, the City focuses almost exclusively on the testimony of appellees' expert witness. However, we conclude that, even excluding the testimony of appellees' expert, there clearly was some evidence to support the jury's verdict in favor of appellees.
1. Interpretation of Section 11. As an initial matter, we note that the City does not challenge on appeal the trial court's ruling that Section 11 was ambiguous and that the jury had to resolve the ambiguity and determine the intent of the parties through parol evidence. We therefore presume that the trial court's ruling on this issue was correct. See Jones v. First Nat. Bank of Atlanta, 147 Ga.App. 441, 249 S.E.2d 154 (1978). Accordingly, the sole question on appeal regarding how to interpret Section 11 is whether there was any evidence introduced at trial that supported the appellees' interpretation of the section. See Investment Properties Co. v. Watson, 278 Ga.App. 81, 83-84(1), 628 S.E.2d 155 (2006); Riviera Equip. v. Omega Equip. Corp., 155 Ga.App. 522, 523(2), 523-524(3), 271 S.E.2d 662 (1980). We conclude that there was.
In support of their interpretation of Section 11, appellees elicited parol testimony that the parties understood that the section had two parts, a "trigger clause" at the beginning of the section, followed by a separate part that set out how to determine the length of the resulting abatement period. Specifically, the president of WH Smith testified that the parties intended for Section 11 to be triggered when government security measures severely reduced the number of enplanements at Concourse A for longer than seven days, thereby causing material harm to HAV's retail business in the Atrium. He further testified that the parties intended for the resulting rent abatement period to end only when both the government-mandated security measures were removed, and the City gave HAV written notice that the rent abatement period had ended. The deputy general manager of the City's Department of Aviation, the second highest City official at the Airport, confirmed this interpretation of Section 11. Given this testimony, the jury was authorized to resolve the ambiguity in Section 11 by adopting the interpretation of the section favored by appellees. See Investment Properties Co., 278 Ga.App. at 84(1), 628 S.E.2d 155; Riviera Equip., 155 Ga.App. at 523(2), 271 S.E.2d 662.
2. The Trigger Clause. The jury likewise was entitled to find that HAV's right to rent abatement had been triggered following the September 11, 2001 terrorist attacks. As noted, under appellees' interpretation, the right to abatement was triggered when (a) government security measures severely reduced the number of enplanements at Concourse A for longer than seven days, which (b) caused material harm to HAV's retail business in the Atrium. There was evidence that both requirements were met here.
(a) Reduction in Enplanements. Appellees elicited testimony from the director of operations for the City's Department of Aviation that immediately following the terrorist attacks, the federal government imposed far reaching security measures on all domestic airports, which included grounding all passenger flights for two-and-a-half days. According to the director, there were far fewer flights in and out of the Airport for at least eight days after the attacks, due in part to new, more thorough security inspection requirements implemented during that period. Appellees buttressed this testimony through their Exhibit 111, a chart of compiled data showing a drastic drop in the number of persons boarding planes in Concourse A beginning on September 11, 2001 and lasting at least through September 18, 2001. Additional compiled data introduced by appellees in their Exhibit 113 reflected a long-term reduction *429 in the number of persons boarding planes in Concourse A lasting beyond 2004. Accordingly, there was evidence from which the jury could conclude that government security measures imposed on September 11, 2001 severely reduced the number of enplanements at Concourse A for longer than seven days.
(b) Material Harm to HAV. According to the president of WH Smith, the security measures imposed after the terrorist attacks included the placement of barricades and rope stanchions in the Atrium to control and restrict the flow of passengers in line for the main security checkpoint, which had the effect of blocking and/or impeding access to many of HAV's stores. He further testified that the rope stanchions and more intensive security screening implemented at the checkpoint led to long lines that snaked through the Atrium, thereby prompting passengers to postpone shopping until they had cleared the checkpoint and reached the concourses. Moreover, as part of the added security measures, HAV was required to remove two of its high volume newsstand stores from the Atrium altogether, and HAV also lost one of its prospective subtenants because of the negative effect caused by the added security measures. The president of WH Smith testified that following the implementation of these changes in security, sales in the Atrium declined drastically and have been consistently lower since September 11, 2001.
Additionally, appellees introduced business records and public records of the Department of Aviation, and elicited testimony from the Department's concessions manager, confirming that the stores in the Atrium suffered severe financial harm as a result of the new security measures. For example, a "Concessions Monthly Business Report" dated October 2001 stated that as a result of long passenger lines caused by the added security measures, retail stores in the Atrium had experienced a 20.2 percent overall decline in revenues from the prior year. Moreover, the concessions manager testified more broadly that as a result of increased security demands, HAV had experienced a 27 percent reduction in sales from September 2001 to 2004. In light of this testimony and documentary evidence, there plainly was sufficient evidence to support the jury's finding that the government-imposed security measures caused material harm to HAV's retail business in the Atrium.
3. The Abatement Period. Similarly, the jury was authorized to find that the abatement period ran at least from September 2001 to 2004, thereby entitling appellees to damages for the failure to abate HAV's rent during that period. As previously pointed out, under appellees' interpretation, the rent abatement period ended only when both the government-mandated security measures were removed, and the City gave HAV written notice that the rent abatement period had ended. At trial, appellees elicited testimony from the president of WH Smith that the added security measures remain in effect in the Atrium and that the City has never provided written notice that the abatement period has ended. As such, there was evidence to support a finding by the jury that the abatement period ran at least from September 2001 to 2004.
4. Damages. Based on the evidence discussed in Divisions 1 and 2, the jury was entitled to conclude that the City breached Section 11 of the Lease by failing to abate a "just proportion" of HAV's rent from September 2001 to 2004. And, there was sufficient evidence to support the jury's award of $3,288,083 in damages for the City's breach of the Lease during that time period. "Where the amount of a verdict is within the range of testimony it will not be disturbed on appeal." C & S Nat. Bank v. Haskins, 254 Ga. 131, 136(2), 327 S.E.2d 192 (1985). Here, the amount of damages awarded by the jury was within the range of the testimony of the Department of Aviation concessions manager, who had recommended to the City that it abate HAV's rent in varying amounts from 2001 to 2004. Hence, the amount of the verdict was authorized by the evidence.
For these combined reasons, we conclude that, when construed in the light most favorable to the verdict, there was more than sufficient evidence to support the jury's conclusion that the City breached Section 11 of the Lease and its award of damages to appellees in the amount of $3,288,083. Consequently, *430 we affirm the final order and judgment entered in favor of appellees.
Judgment affirmed.
BLACKBURN, P.J., and RUFFIN, J., concur.
NOTES
[1] HAV is a general partnership. WH Smith Airport Services, Inc. was the managing partner of HAV until late 2003. In that year, WH Smith with the City's approval assigned its partnership interest to Airport Management Services, LLC. As part of the assignment agreement, WH Smith agreed to indemnify Airport Management for a portion of HAV's rent obligations under the Lease until the end of the Lease term.
[2] Appellees also asserted a breach of contract claim predicated on another section of the Lease, as well as claims for inverse condemnation and constructive eviction. Appellees voluntarily dismissed their claims for inverse condemnation and constructive eviction, and the trial court granted a directed verdict on the other contract claim. None of these claims is at issue on appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3079026/ | COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00232-CR
Karrington McKinley Braziel § From the 297th District Court
§ of Tarrant County (1323802R)
v. § August 7, 2014
§ Per Curiam
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2265010/ | 6 F. Supp. 342 (1934)
Ex parte LOPEZ.
No. 480.
District Court, S. D. Texas, Laredo Division.
February 20, 1934.
*343 M. J. Raymond, of Laredo, Tex., for petitioner Lopez.
H. M. Holden, U. S. Atty., and M. S. McCorquodale, Asst. U. S. Atty., both of Houston, Tex., for respondent Keene.
M. C. Gonzales, of San Antonio, Tex., for intervener government of Mexico.
KENNERLY, District Judge.
This is a hearing on petition of Luis Lopez for the writ of habeas corpus.
The facts are as follows:
(a) Lopez stands charged by indictment in the United States District Court for the Western District of Texas, at San Antonio, with violation of the United States narcotic laws. He was under bond to appear early in January, 1934, before that court to answer to such indictment. He did not appear, and his bond was forfeited. Thereafter, an affidavit was filed with a United States commissioner at Laredo, in this district, charging petitioner to be a fugitive from justice, and the commissioner issued a warrant for petitioner's arrest. He was arrested on or about January 20, 1934, by Deputy United States Marshal Keene, at Laredo, and carried before the commissioner, and is now held in custody of such deputy marshal under process issued by the commissioner, awaiting order of removal to the Western district for trial under such indictment.
(b) January 23, 1934, petitioner filed in the state court his petition for the writ of habeas corpus, and, upon application of Deputy Marshal Keene, the case has been removed into this court. Counsel for petitioner concedes that the case is properly here, and petitioner on January 31, 1934, filed in this court, his amended petition for the writ of habeas corpus. In such amended petition petitioner sets forth that he is a citizen of Mexico, and that on or about January 20, 1934, while he was in Nuevo Laredo in Mexico, he was seized by four men and forcibly brought across the Rio Grande (the international boundary between the United States and Mexico) into the United States, and there arrested by such deputy marshal, as stated. He prays for the writ of habeas corpus, and that he be discharged.
February 10, 1934, the government of Mexico intervened, making substantially the same allegations as are made by petitioner, and setting up existing treaties between intervener and the United States of America, and praying that petitioner be surrendered to the custody of intervener. Such allegations are in part as follows:
"Where he will be detained and held under provisional arrest, if requested, pending further disposition in accordance with the form and procedure in such cases made and provided, under and by virtue of the Treaty between said Governments; all to the end that the friendly relations existing between the Government of the United States of America and the United States of Mexico may continue unimpaired by reason of the unhappy occurrence of the invasion of the sovereignty of Intervenor, and the abduction of one of its citizens from its soil, and that the solemn compact between said governments may not be nullified by the unlawful and illegal acts of individual citizens of either of said governments."
Respondent (Deputy Marshal Keene) demurs to petitioner's petition, and in answer thereto, and to such intervention, sets forth that he holds petitioner in custody under such process issued by the commissioner, awaiting removal to the Western district for trial under such indictment.
(c) It is shown that petitioner's parents were born in Mexico. When they came to the United States is not shown, except that they came before the birth of petitioner, and have resided in the United States at San Antonio, Tex., since before petitioner's birth. Petitioner was born in the United States at San Antonio, Tex., in 1893 or 1894. Soon after finishing school, he obtained a job as city fireman in the city of San Antonio, where he served some months. After leaving such employment as city fireman, he states that he went into the "bootlegging" business, in which business he has continued down to about the time of his indictment, except that during such period he has been three times *344 convicted and sent to the penitentiary for violation of the liquor and narcotic laws.
When petitioner was required to register under the United States draft laws during the World War, he claims that he registered as a Mexican citizen.
About October, 1933, petitioner left San Antonio and went to Nuevo Laredo, Mexico, across the river from Laredo, Tex. The evidence is not clear whether or not he purposed to remain there permanently. There is no evidence of any effort or proceedings to change his status as a citizen of the United States.
(d) About 9 p. m., January 20, 1934, petitioner, while at the place where he was stopping in Nuevo Laredo, was seized by four men and carried in an automobile to the Rio Grande, which forms the boundary line between Mexico and the United States. There he was compelled to hold to a tub, while two of the men towed him and the tub across the river to United States territory. His arrest by Deputy United States Marshal Keene, as stated above, followed. The only person whom petitioner was able to identify as being connected with these transactions was one Hernandez, a citizen of Mexico, and one Monterola, a captain in the Mexican Army and a citizen of Mexico. These were two of the four men. He also claims to have identified one Villarreal, a constable of Webb county, Tex., as being in company with Deputy Marshal Keene at the time he was arrested by Keene.
1. That persons born in the United States (as was petitioner) are citizens of the United States need not be discussed. Section 1, article 14, of the Amendments to the United States Constitution. There is no evidence of a change of petitioner's citizenship.
2. Therefore, as between petitioner and respondent, Keene, the facts present a case of a citizen of the United States charged with a violation of its laws seeking and obtaining an asylum in Mexico and being there seized by four men (two of whom at least were citizens of Mexico) and forcibly returned to the United States. The cases are practically all one way that petitioner may not, under such circumstances, be discharged in a habeas corpus proceeding. Ker v. Illinois, 119 U.S. 438, 7 S. Ct. 225, 30 L. Ed. 423 (See, also, Ex Parte Ker [C. C.] 18 F. 169); Mahon v. Justice, 127 U.S. 700, 8 S. Ct. 1204, 32 L. Ed. 287; Cook v. Hart, 146 U.S. 191, 13 S. Ct. 40, 36 L. Ed. 938; In re Johnson, 167 U.S. 120, 17 S. Ct. 735, 42 L. Ed. 103; Pettibone v. Nichols, 203 U.S. 217, 27 S. Ct. 111, 51 L. Ed. 159, 7 Ann. Cas. 1047; Ex Parte Morton Campbell (D. C.) 1 F. Supp. 899; U. S. ex rel. Voigt v. Toombs, 67 F.(2d) 744 (U. S. C. C. A. 5th, decided December 7, 1933).
3. The intervention of the government of Mexico raises serious questions, involving the claimed violation of its sovereignty, which may well be presented to the Executive Department of the United States, but of which this court has no jurisdiction. State v. Brewster, 7 Vt. 121.
It follows that such intervention should be dismissed, the writ of habeas corpus denied, and the petitioner remanded to the custody of the marshal, to await an order of removal to the Western district, for trial under such indictment. Let an order be drawn and presented accordingly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263283/ | 27 F.Supp. 489 (1939)
HOOKER
v.
HOEY, Collector of Internal Revenue.
District Court, S. D. New York.
January 24, 1939.
*490 Thomas Kiernan and Holt S. McKinney, both of New York City, for plaintiff.
Lamar Hardy, U. S. Atty., of New York City (Dolores C. Faconti, Asst. U. S. Atty., of New York City, of counsel), for defendant.
PATTERSON, District Judge.
The action is one to recover an alleged overpayment of income tax for the year 1933. The plaintiff's grievance, as stated in his complaint, is that he received in 1933 the sum of $11,250 as an annuity, that the aggregate consideration paid for the annuity had not yet been received by him, that consequently the item did not constitute taxable income under the Revenue Act of 1932. The collector moves for summary judgment under Rule 56, 28 U.S. C.A. following section 723c. His moving papers set forth in detail the facts on which the plaintiff's claim is based, facts which rest on writings and are undisputed.
The plaintiff is a former employee of Vacuum Oil Company. He retired from active service in 1924, and by resolution of the board of directors was awarded, in view of his "thirty-nine and one-third years in continuous service", the sum of $937.50 monthly ($11,250 yearly) for life under the company's Annuity Plan, "the same being equivalent to the 75% of his compensation for the twelve months preceding retirement." The Annuity Plan, so called, had been adopted some years earlier. It provided that all employees on reaching a certain age or length of service might retire on a regular allowance, subject to approval of the board of directors; that the basis of the allowance was to be a percentage of the annual salary or wages, not to exceed 75 percent; that the "annuity" should be paid for life; that the "annuities" were granted "as a voluntary reward for and in appreciation of faithful and efficient service." No separate fund for payment of the allowances was set up. The plaintiff from 1924 to 1931 received $11,250 annually from Vacuum Oil Company. In 1931 Vacuum Oil Company sold and transferred all its property to Standard Oil Company of New York, the latter company assuming all obligations and liabilities and issuing shares of its own stock to the Vacuum stockholders. From that time forward Standard Oil Company of New York, under its new name of Socony Vacuum Corporation, made the payments to the plaintiff, including the $11,250 paid in 1933 which the plaintiff claims in this action to have been immune from income tax.
The plaintiff's receipt of $11,250 a year comes primarily from the action of Vacuum Oil Company, his former employer, in placing him under its retirement allowance plan in 1924. That plan was dignified by the title "Annuity Plan", but the name is of no particular importance. It was manifestly a pension plan, a retiring allowance plan, and the payments made under it were payments of pensions or retiring allowances. A pension is "a stated allowance or stipend made in consideration of past services or of the surrender of rights or emoluments, to one retired from service." Webster's New International Dictionary. It cannot be doubted that pensions or retiring allowances paid because of past services are one form of compensation for personal service and constitute taxable income to the recipients under section 22(a) of the Revenue Act of 1932, 26 U.S.C.A. § 22(a), as well as under equivalent provisions of earlier and later acts, save where specifically exempted by some provision of law. The regulations of the Treasury Department, from 1918 down to date, have declared "pensions or retiring allowances" to be taxable income. The force given to long established regulations in determining the intent of Congress when it reenacts provisions of the internal revenue laws is too well settled to call for discussion. Zellerbach Paper Co. v. Helvering, 293 U.S. 172, 55 S.Ct. 127, 79 L.Ed. 264; Koshland v. Helvering, 298 U.S. 441, 56 S.Ct. 767, 80 L.Ed. 1268, 105 A.L.R. 756. The courts have repeatedly held that additional compensation for past services is taxable income. Noel v. Parrott, 4 Cir., 15 F.2d 669; Weagant v. Bowers, 2 Cir., 57 F.2d 679; Fisher v. Commissioner, 2 Cir., 59 F.2d 192; Bass v. Hawley, 5 Cir., 62 F.2d 721. See also Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 730, 49 S.Ct. 499, 73 L.Ed. 918. All that happened in 1931, so far as concerned the plaintiff, was that Socony Vacuum Corporation took the place of Vacuum Oil Company as payor of his pension or retiring allowance. The character of the payments was not changed. They were still compensation to the plaintiff for services he had rendered in the past and were still taxable income.
*491 The plaintiff's argument is that the case is one of an annuity. Section 22(b) (2) of the 1932 Act, 47 Stat. 178, 26 U.S. C.A. § 22 note, excluded from gross income amounts received "under a life insurance, endowment, or annuity contract", with the proviso that "if such amounts (when added to amounts received before the taxable year under such contract) exceed the aggregate premiums or consideration paid (whether or not paid during the taxable year) then the excess shall be included in gross income." The plaintiff says that the contract whereby Socony Vacuum Corporation assumed all obligations of Vacuum Oil Company is an "annuity contract", that the transfer of the Vacuum Oil Company assets to Socony Vacuum Corporation is "consideration paid" for the annuity contract, and that it must be taken for granted that a portion of those assets equivalent to the worth in 1931 of an annuity of $11,250 yearly to a man 68 years of age (which worth by mortality tables is $79,186.46) was transferred in consideration of the transferee's promise to pay the annuity. If the premises are sound, then there is no taxable income until the plaintiff shall have received $79,186.46 in payments since 1931. But the unsoundness of the premises is obvious. In the first place, the plaintiff has no annuity, within the meaning of that word in section 22(b) (2). He has a pension or retirement allowance, taxable under section 22(a) of the Act as already shown. The exemption as to annuities in the income tax statutes does not cover cases where an annuity is not in reality purchased, even though the transaction may be somewhat analogous to the purchase of an annuity. Helvering v. Butterworth, 290 U.S. 365, 369, 370, 54 S.Ct. 221, 78 L.Ed. 365. In the second place, the transaction involving transfer of assets by the Vacuum Oil Company and assumption of liabilities by Socony Vacuum Corporation was not an "annuity contract", except in a forced sense. Finally, there is utterly no basis in the facts for the claim that the sum of $79,186.46 or any other particular sum was paid by Vacuum Oil Company to Socony Vacuum Corporation as "aggregate premiums or consideration" for the latter's assumption of the obligation to pay the plaintiff $11,250 a year for life. Taxation is "an intensely practical matter". (Farmers' Loan & Trust Co. v. Minnesota, 280 U.S. 204, 212, 50 S.Ct. 98, 74 L.Ed. 371, 65 A.L.R. 1000), and there is no room for the unrealities embedded in the plaintiff's argument.
The undisputed facts presented by the moving papers show that the $11,250 received by the plaintiff in 1933 was taxable income and that the collector is entitled to judgment as matter of law. Summary judgment in favor of the defendant will be entered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263502/ | 24 Cal.App.4th 555 (1994)
29 Cal. Rptr.2d 463
SHAUCAT SALAHUTDIN et al., Plaintiffs and Respondents,
v.
VALLEY OF CALIFORNIA, INC., Defendant and Appellant.
Docket No. A059741.
Court of Appeals of California, First District, Division Two.
April 28, 1994.
*558 COUNSEL
Hoge, Fenton, Jones & Appel and Scott R. Mosko for Defendant and Appellant.
Miller, Starr & Regalia and Lola C. Ellwein for Plaintiffs and Respondents.
OPINION
KLINE, P.J.
Defendant Valley of California, Inc., doing business as Coldwell Banker Residential Real Estate of Northern California (Coldwell Banker), appeals from a judgment of the San Mateo County Superior Court awarding plaintiffs husband and wife, Shaucat and Jeannie S. Salahutdin, damages of $175,000 plus costs against Coldwell Banker. The trial court found that while representing plaintiffs in a real estate purchase, appellant's employee David Seigal breached his fiduciary duty of care and committed *559 constructive fraud by making false representations to plaintiffs that the property they purchased was more than one acre in size and that it could be subdivided where, in fact, the property was less than one acre and could not be subdivided. Appellant contends (1) substantial evidence does not support the finding of constructive fraud; (2) the court erred in awarding "benefit of the bargain" damages under Civil Code section 3333;[1] and (3) damages should have been calculated as of the time of the transaction, not the time of discovery. We shall affirm the judgment.
Statement of Facts
Plaintiffs were born in Korea. Shaucat Salahutdin's parents were peasants who fled Russia during the 1917 Revolution. They settled in Korea, but, because they were considered "stateless," were unable to own land in that country. As a consequence, it was very important to plaintiffs to be able to leave land to their children.
When plaintiffs sold their home in San Mateo, they decided to look for property in Hillsborough which eventually could be subdivided and left to their two children. They informed their real estate agent, David Seigal, of their interest and that it was important that the property they purchased could be left to their son and daughter. They specifically told Seigal it was their intent to move to a house for the last time and to subdivide the property so that one-half could be left to their daughter and one-half to their son. Seigal "educated" plaintiffs on how to leave the property to their children. He advised them that property in Hillsborough could not be subdivided unless it was larger than one acre and that it would not be easy to find such property. Plaintiffs informed Seigal that they were in no rush; they were willing to wait as long as required to find property they could subdivide and leave for their children. Plaintiffs knew nothing about subdivision of property before Seigal informed them of requirements for subdivision in Hillsborough.[2]
In 1979, the sellers of the subject Black Mountain property listed it for sale with Coldwell Banker and listing agent Betty Kruse. The sellers advised Ms. Kruse that the lot size exceeded one acre. Therefore, on the multiple listing information sheet, Kruse indicated the lot size as "1 acre+." There were no obvious indications the sellers' representation was incorrect. In fact, at the time the property was placed on the market it was surrounded by a perimeter fence enclosing more than one acre.
*560 Relying upon the multiple listing sheet, Seigal told plaintiffs the Black Mountain property met their requirements and was what they wanted. When plaintiffs reiterated the importance of subdivision, Seigal said that because the property was more than an acre, "`you will have no problem subdividing in the future when you want to.'" During a visit to the property Seigal confirmed that the southern boundary line was demarcated by an old fence separating the land in question from contiguous property owned by the Alcantaras.
In fact, Seigal's representations were not true. The property was less than one acre in size and the fence did not demarcate the southern boundary. As a result, it is reasonably certain the property cannot be subdivided. Seigal did not inform the Salahutdins that his information was based simply upon the multiple listing sheet (MLS) and that he had done nothing more to determine the size of the property than "eyeball" it and accept the seller's agent's representations. He did not inform plaintiffs that he had not independently confirmed whether they could subdivide the property. Nor did he advise them that he had not conducted any investigation to determine if the fence lines he represented to be the boundary lines were so in fact. He did tell plaintiffs that the property "meets what you want. You can subdivide in the future."
In 1989, a dispute arose between plaintiffs and the Alcantaras when the Alacantaras tore down the old fence and erected a new one several feet to the north. A survey confirmed the old fence was not the true boundary line between the properties. The area between the old and new fence constituted .08 acres or 5,395 square feet. The Black Mountain property actually contained .998 acres. This litigation ensued.
Statement of the Case
In a cause of action entitled "negligent misrepresentation," plaintiffs alleged that Coldwell Banker made false representations about the size of the property and concealed its failure to adequately investigate or disclose the true facts.
Experts for the parties testified that in 1979 if a real estate broker represented that a property could be subdivided, he or she had an obligation to investigate and determine if the property could in fact be subdivided; a broker who was aware that his client wanted to subdivide property and who did nothing more than "eyeball" the property to investigate the accuracy of the seller's representation that the lot size was sufficient to subdivide had not satisfied his duty of care to his client; a broker should not have confirmed the location of the boundary lines without the assistance of someone such as a surveyor, competent to do so; a broker was required to advise his or her *561 client whether the boundary line location had been verified by a surveyor; and if a broker knew the subdividability of the property was a material fact, and also knew the seller's representation that the property was more than one acre was merely the seller's belief, the agent had a duty to investigate to determine the accuracy of that representation.
The trial court found in favor of plaintiffs against Coldwell Banker, but found no liability against the seller's agent Kruse. In its tentative decision, the court found Seigal's actions fell below the standard of care for a realtor in 1979. The court further found Seigal had committed constructive fraud by representing to plaintiffs that the lot was greater than one acre in size, that it could be subdivided and that the fence marked the south boundary of the property without confirming the accuracy of such representations and without advising plaintiffs that he had done nothing to establish the accuracy of this information.
The trial court determined damages according to Civil Code section 3333, by comparing the value of the property plaintiffs received and the value of the property they would have received had Seigal's representations been true the "benefit of the bargain" measure. The court accepted the testimony of plaintiffs' appraiser that as of November 1991 (the date nearest trial), the fair market value of comparable property that could be subdivided would be $1.1 million, and the value of the subject property with only the remote possibility that a variance could be obtained in the future to allow subdivision was $925,000.
Accordingly, judgment was entered on July 21, 1992, in favor of plaintiffs and against Coldwell Banker in the sum of $175,000 with interest thereon at the rate of 10 percent per annum from the date of entry of judgment until paid. A timely notice of appeal followed.
Discussion
I.
Substantial Evidence of Constructive Fraud
(1a) The record amply supports the finding that David Seigal breached his fiduciary duty to plaintiffs and committed constructive fraud. He knew the size of the property and its ability to be subdivided was critical to plaintiffs' decision to purchase it, yet misrepresented to plaintiffs that the property was more than one acre in size and that it could therefore be subdivided, confirmed that the south boundary of the property was marked *562 by the fence, and failed to disclose that he had done nothing to independently confirm the accuracy of this information.[3]
(2) "In addition to the traditional liability for intentional or actual fraud, a fiduciary is liable to his principal for constructive fraud even though his conduct is not actually fraudulent. Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship." (2 Miller & Starr, Cal. Real Estate (2d ed. 1989) Agency, § 3:20, p. 119, fn. omitted.)
"[A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent. Most acts by an agent in breach of his fiduciary duties constitute constructive fraud. The failure of the fiduciary to disclose a material fact to his principal which might affect the fiduciary's motives or the principal's decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud. Also, a careless misstatement may constitute constructive fraud even though there is no fraudulent intent." (2 Miller & Starr, supra, Agency, § 3:20 at pp. 120-121, fns. omitted.)
(3) "A broker who is merely an innocent conduit of the seller's fraud may be innocent of actual fraud [citations], but in this situation the broker may be liable for negligence on a constructive fraud theory if he or she passes on the misstatements as true without personally investigating them. [Citations.]" (Cal. Real Property Remedies Practice (Cont.Ed.Bar 1982) § 3.36, p. 88.)
"[T]he broker has a fiduciary duty to investigate the material facts of the transaction, and he cannot accept information received from others as being true, and transmit it to the principal, without either verifying the information or disclosing to the principal that the information has not been verified. Because of the fiduciary obligations of the broker, the principal has a right to *563 rely on the statements of the broker, and if the information is transmitted by the broker without verification and without qualification, the broker is liable to the principal for negligent misrepresentation." (2 Miller & Starr, supra, § 3.17, pp. 97-98, fns. omitted.)
(1b) As a fiduciary, Seigal had a duty to his clients to refrain from advising them that the parcel was more than an acre, that it could therefore be subdivided, and that the fence represented the southern boundary of the property where he did not know that to be the case and where he knew these facts were material to plaintiffs' decision to purchase the property. While he was not required to investigate the sellers' representations or the truth of the description contained in the multiple listing service sheet before showing the property to plaintiffs, Seigal was at least required to tell plaintiffs that he had not verified the information he was passing on to them; that he was simply relying upon the description provided by the sellers.
(4) Appellant argues that Seigal's conduct was merely negligent and not fraudulent. However, the disclosure duty is a general duty imposed on the agent, and whether a breach of that duty constitutes negligence or fraud depends on the particular circumstances of each case. (2 Miller & Starr, supra, Agency, § 3:18, p. 105.) Consequently, there is no clear line establishing when a fiduciary's breach of the duty of care will be merely negligent and when it may be characterized as constructive fraud. However, a breach of a fiduciary duty usually constitutes constructive fraud. (Id., § 3:17, at p. 96.) (1c) The trial court determined that Seigal breached his fiduciary duty to plaintiffs by making affirmative statements as to the size, boundaries, and subdividability of the property, knowing these facts to be material to plaintiffs and by failing to disclose that he had not confirmed their accuracy. The trial court concluded that such breach constituted constructive fraud. Substantial evidence supports that determination.
II.
Measure of Damages
(5a) Appellant contends the court erred in awarding plaintiffs' "benefit of the bargain" damages under sections 1709[4] and 3333,[5] rather than their *564 "out of pocket" loss under section 3343.[6] (6) The "benefit of the bargain" measure of damages is the difference between the actual value of what the plaintiff has received and that which he expected to receive. An "out of pocket" measure of damages is the difference between the actual value received and the actual value conveyed. (Overgaard v. Johnson (1977) 68 Cal. App.3d 821, 823 [137 Cal. Rptr. 412]; 2 Miller & Starr, supra, Agency, § 3:23, p. 134.) The cases are not consistent in their treatment of the measure of damages for breach of fiduciary duties.[7]
*565 The consensus of the commentators is that section 3343 governs the measure of damages for fraud in the purchase, sale, or exchange of real property, but an exception is recognized where a fiduciary relationship existed between parties. In such case, sections 1709 and 3333 provide the measure of damages. (Johns, Cal. Damages Law and Proof (4th ed. 1993) §§ 8.1, 8.11, pp. 8-3, 8-22.1 to 8-23; 2 Miller & Starr, supra, Agency, § 3.23, p. 134; Cal. Attorney's Damages Guide (Cont.Ed.Bar Supp. Jan. 1994) § 2.33A, p. 80; Cal. Real Property Remedies Practice, supra, § 3.18, p. 77; Cal. Real Property Sales Transactions (Cont.Ed.Bar 1993 2d ed.) § 2.120, p. 178.) The cases support this distinction. (E.g., Walters v. Marler (1978) 83 Cal. App.3d 1, 25-27 [147 Cal. Rptr. 655], disapproved on other grounds in Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 507 [198 Cal. Rptr. 551, 674 P.2d 253, 44 A.L.R.4th 763]; Overgaard v. Johnson, supra, 68 Cal. App.3d 821, 827; Pepitone v. Russo (1976) 64 Cal. App.3d 685, 688-689 [134 Cal. Rptr. 709]; Walsh v. Hooker & Fay, supra, 212 Cal. App.2d 450, 458-459; Simone v. McKee, supra, 142 Cal. App.2d 307, 315; Lund v. Albrecht (9th Cir.1991) 936 F.2d 459; see Savage v. Mayer, supra, 33 Cal.2d 548, 550-555.)
Some commentators describe a split of authority in the cases regarding the proper measure of damages under section 3333 in cases of fiduciary fraud. (Cal. Attorney's Damages Guide, supra, § 2.33A, p. 80; Cal. Real Property Remedies Practice, supra, § 3.18, p. 77.) Clearly, some cases award what appear to be "benefit of the bargain" damages. (E.g., Pepitone v. Russo, supra, 64 Cal. App.3d 685; Walsh v. Hooker & Fay, supra, 212 Cal. App.2d 450; Simone v. McKee, supra, 142 Cal. App.2d 307; Lund v. Albrecht, supra, 936 F.2d 459; see Stout v. Turney (1978) 22 Cal.3d 718 [150 Cal. Rptr. 637, 586 P.2d 1228] [affirms award of broader remedy for fiduciary fraud as "consequential" or "additional" damages under § 3343].) Other courts have held that section 3333 limits the defrauded principal's recovery to the extent of the financial injury actually sustained and does not authorize the plaintiff to recover the benefit of his or her bargain. (Walters v. Marler, supra, 83 Cal. App.3d 1, 25-27; Overgaard v. Johnson, supra, 68 Cal. App.3d 821, 827; see Cal. Real Property Remedies Practice, supra, § 3.18, p. 77; Cal. Attorney's Damages Guide, supra (1994 Supp.) § 2.33A, p. 80.)
Other commentators, most notably Miller and Starr, supra, attempt to explain the division by distinguishing between actions by a principal against his agent for fraud in which the measure of damages for fiduciary fraud is the broader "benefit of the bargain" rule and actions by the principal against *566 the agent for mere negligence, in which the narrower "out of pocket" measure is applied. (2 Miller & Starr, supra, § 3.23, pp. 134-135, 137-138; see also O'Leary, Limiting the Fiduciary Duty Exception to the Out-of-Pocket Rule (Cont.Ed.Bar April 1993) Real Property L.Rep., 145, 145-147.) That distinction leads Miller and Starr to explain Overgaard v. Johnson, supra, 68 Cal. App.3d 821[8] and Christiansen v. Roddy (1986) 186 Cal. App.3d 780 [231 Cal. Rptr. 72], which rely on section 3333 while applying the "out of pocket" loss rule, as decisions based on the negligence of the fiduciary and not upon actual or construc tive fraud. (2 Miller & Starr, supra, § 3.23, p. 138, fn. 27.)[9]
As Miller and Starr state, although the parties agreed section 3333 was the applicable statute as the action was against a fiduciary, the case was tried on a negligence theory against the broker.
This explanation ignores the overlap of the concepts of breach of a duty of care (negligence) and constructive fraud in actions against fiduciaries. Consequently, the result appears to turn on whether the theory of the case is described as negligent misrepresentation or constructive fraud essentially a matter of pleading rather than distinctions based upon the conduct of the agent.[10]
(5b) Recognizing a split of authority on the matter, we follow those cases adopting the broader measure of damages under sections 1709 and 3333, a course that is not only consonant with the position we have taken in the past but just. This division has consistently applied the broader measure *567 of damages for fiduciary fraud, refusing to limit damages to the "out of pocket" measure. (Ford v. Cournale, supra, 36 Cal. App.3d 172, 184; Pepitone v. Russo, supra, 64 Cal. App.3d 685; Walsh v. Hooker & Fay, supra, 212 Cal. App.2d 450.)
In Walsh v. Hooker & Fay, supra, 212 Cal. App.2d 450, plaintiff was induced to buy stock by the false representations made by a stockbroker. (Id., at p. 451.) We held that the fiduciary relationship between plaintiff and defendant rendered it inappropriate to apply the "out of pocket rule" codified in section 3343. Following Simone v. McKee, supra, 142 Cal. App.2d 307, we applied the broader provisions of sections 3333 and 1709, affirming the award of the difference between the cost to plaintiff of the stock and the value of the stock as of the date of the discovery. (212 Cal. App.2d at pp. 451, 454, 460-463.) In so doing we emphasized that through all the cases "`runs one common thread a determination that the faithless fiduciary shall make good the full amount of the loss of which his breach of faith is a cause.'" (Id., at p. 461, italics in original.) We refused to limit the measure of damages to the secret profit context or to limit recovery to the amount of any secret profit. (212 Cal. App.2d at p. 459.)
In Ford v. Cournale, supra, 36 Cal. App.3d 172, an elderly widow sued her broker for fraud and misrepresentation arising out of her purchase of an apartment complex recommended by her broker as suitable for her stated purpose of increasing her income. The jury entered a verdict for defendants and we reversed, holding the trial court had erred in refusing an instruction to the effect that in an action for fraud, it is proper to consider circumstances occurring after the fraudulent transaction, such as foreclosure, to calculate plaintiff's actual loss where plaintiff could not rescind. (Id., at p. 184.) We refused to limit the "out of pocket" loss rule of section 3343 to the difference in value between market price and purchase price at the time of the purchase. (36 Cal. App.3d at p. 184.)
In Pepitone v. Russo, supra, 64 Cal. App.3d 685, plaintiff sued her broker for failing to disclose that a second deed of trust encumbering a motel she was acquiring had an acceleration clause. Consequently, appellant lost the motel at a foreclosure sale. We held that the broker owed a fiduciary obligation to plaintiff to disclose all material facts which might affect her decision with regard to the transaction. (Id., at p. 688.) The faithless fiduciary "is obligated to make good the full amount of the loss of which his breach of faith is a cause [citations]." (Ibid.) We held the damages must, therefore, be measured pursuant to the broad provisions of sections 3333 and 1709 regulating compensation for torts in general and that the proper measure afforded by those sections "tends to give the injured party the benefit of *568 his bargain...." (64 Cal. App.3d at p. 689, italics omitted.) "Under the benefit of the bargain doctrine we must consider the loss sustained by appellant rather than the value with which she parted [Citation.]" (Id., at p. 689, italics in original.) In that case we calculated plaintiff's loss as the fair market value of the motel which was lost by reason of the breach and the expenditures that plaintiff incurred in trying to forestall foreclosure. (Ibid.) We also noted that plaintiff "fail[ed] to claim loss of future profits or other damages which in an appropriate case would also be recoverable under sections 3333 and 1709." (Id., at p. 690, fn. 3.)
The remedy afforded by sections 1709 and 3333 aims at compensation for any and all the detriment proximately caused by the breach. Such compensation is appropriate under the facts of this case. We therefore conclude that the trial court did not err in adopting the broader measure of damages and in refusing to limit damages under section 3333 to plaintiffs' "out of pocket" loss.
III.
Date of Measure
(7) Appellant contends damages should be measured at the date of the transaction and that the trial court erred in utilizing the date of discovery to calculate "benefit of the bargain" damages.
Unlike the "out of pocket" measure of damages, which are usually calculated at the time of the transaction, "benefit of the bargain" damages may appropriately be calculated as of the date of discovery of the fraud. (Walsh v. Hooker & Fay, supra, 212 Cal. App.2d 450, 460-462.) Such damages are calculated to require the faithless fiduciary to make good the "full amount of the loss." (Pepitone v. Russo, supra, 64 Cal. App.3d 685, 688; see In re Estate of Anderson (1983) 149 Cal. App.3d 336, 354-355 [196 Cal. Rptr. 782] [awarding appreciation damages and citing § 3333 as support].) Applying the difference as of the date of the transaction would defeat the goal of compensation for the entire loss where, as here, discovery of the fiduciary's constructive fraud did not occur until years after purchase of the property.
Nor does our recent opinion in Safeco Ins. Co. v. J & D Painting (1993) 17 Cal. App.4th 1199 [21 Cal. Rptr.2d 903], assist appellant. There we affirmed the long-standing rule that recovery for negligent damage to real property which damage could be repaired is limited to either the cost of repair or the diminution in value, but not both; and that a rule that would allow diminution in value to be awarded when it exceeds the cost of repair does not fit *569 within underlying tort doctrines. (Id., at pp. 1204-1207.) That case did not address the measure of damages for fraud and breach of duty by a fiduciary.
The trial court did not err in refusing to calculate damages as of the date of the transaction.
The judgment is affirmed.
Smith, J., and Phelan, J., concurred.
Appellant's petition for review by the Supreme Court was denied August 18, 1994.
NOTES
[1] All further statutory references are to the Civil Code unless otherwise specified.
[2] Shaucat Salahutdin does not have a college degree and had owned only one other piece of property (a single-family residence) before purchasing the subject property. Jeannie Salahutdin has some difficulty with the English language.
[3] We note that liability here was not premised upon a breach of the broker's inspection and disclosure duties under Civil Code section 2079. That statute, which followed this court's articulation of the common law duty in Easton v. Strassburger (1984) 152 Cal. App.3d 90 [199 Cal. Rptr. 383, 46 A.L.R.4th 521], requires a reasonably competent and diligent "visual" inspection and disclosure to a prospective purchaser of "all facts materially affecting the value or desirability of the property that such an investigation would reveal." (§ 2079; see Wilson v. Century 21 Great Western Realty (1993) 15 Cal. App.4th 298, 307-308 [18 Cal. Rptr.2d 779].) Absent "red flags" visible from a reasonably diligent visual inspection indicating the property was not the size represented, that duty would not encompass a duty to survey the property to make sure it was the size represented.
At issue here is not the inspection and disclosure duties of a seller's broker to the buyer described in Easton, Wilson, and section 2079. Rather, it is the broker's fiduciary duty to his own client to refrain from making representations of facts material to the client's decision to buy the property without advising the client that he is merely passing on information received from the seller without verifying its accuracy.
[4] Section 1709 provides the measure for damages for deceit as follows: "One who willfully deceives another with intent to induce him to alter his position to his injury or risk is liable for any damage which he thereby suffers."
[5] Section 3333, the general tort damage measure provides: "For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expresslyprovided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not."
[6] Section 3343 provides:
"(a) One defrauded in the purchase, sale or exchange of property is entitled to recover the difference between the actual value of that with which the defrauded person parted and the actual value of that which he received, together with any additional damage arising from the particular transaction, including any of the following:
"(1) Amounts actually and reasonably expended in reliance upon the fraud.
"(2) An amount which would compensate the defrauded party for loss of use and enjoyment of the property to the extent that any such loss was proximately caused by the fraud.
"(3) Where the defrauded party has been induced by reason of the fraud to sell or otherwise part with the property in question, an amount which will compensate him for profits or other gains which might reasonably have been earned by use of the property had he retained it.
"(4) Where the defrauded party has been induced by reason of the fraud to purchase or otherwise acquire the property in question, an amount which will compensate him for any loss of profits or other gains which were reasonably anticipated and would have been earned by him from the use or sale of the property had it possessed the characteristics fraudulently attributed to it by the party committing the fraud, provided that lost profits from the use or sale of the property shall be recoverable only if and only to the extent that all of the following apply:
"(i) The defrauded party acquired the property for the purpose of using or reselling it for a profit.
"(ii) The defrauded party reasonably relied on the fraud in entering into the transaction and in anticipating profits from the subsequent use or sale of the property.
"(iii) Any loss of profits for which damages are sought under this paragraph have been proximately caused by the fraud and the defrauded party's reliance on it.
"(b) Nothing in this section shall do either of the following:
"(1) Permit the defrauded person to recover any amount measured by the difference between the value of property as represented and the actual value thereof.
"(2) Deny to any person having a cause of action for fraud or deceit any legal or equitable remedies to which such person may be entitled."
[7] Contributing to this confusion is the citation by the courts to statutes which do not always support the measure described. For example:
Gagne v. Bertran (1954) 43 Cal.2d 481 [275 P.2d 15], cites section 3333, rather than 3343 in support of the "out of pocket" standard in a case not involving a fiduciary.
Ford v. Cournale (1973) 36 Cal. App.3d 172 [111 Cal. Rptr. 334, 81 A.L.R.3d 704] and Burkhouse v. Phillips (1971) 18 Cal. App.3d 661 [96 Cal. Rptr. 197], involving fiduciaries, rely upon section 3343 to support the award of more expansive damages than available under the "out of pocket" standard.
Simone v. McKee (1956) 142 Cal. App.2d 307 [298 P.2d 667], also supports a broad measure of damages exceeding the "out of pocket" standard by reliance primarily upon section 3333, but stating section 3343 would also support such award.
In Savage v. Mayer (1949) 33 Cal.2d 548 [203 P.2d 9] and Simone v. McKee, supra, the damages awarded included disgorging of secret profits by the fiduciary. However, in Walsh v. Hooker & Fay (1963) 212 Cal. App.2d 450, 459 [28 Cal. Rptr. 16], this division maintained that the award of the broader measure of damages under section 3333 was not limited to the secret profit situation.
[8] Overgaard is similar to the instant action. There the seller engaged the broker to sell his property for not less than $250,000. The broker concluded a sale of the property for that price, but negligently failed to inform the buyer that the actual acreage of the property was less than specified. The buyer sued the seller and recovered $29,000 in damages measured by the difference between the sales price and the actual value of the property ($221,000). The seller then sued the broker to recover the $29,000. The court held that since the property was only worth $221,000, and this was the ultimate price received by the seller, he had not been damaged by the broker's negligence under the "out of pocket loss" rule. The seller was not able to recover the $29,000 from the broker. He was only able to recover the attorney fees incurred in defending against the buyer's suit and the commission paid which was allocable to the $29,000 price reduction. The court criticized the "out of pocket" loss rule, but found it was the rule applicable to a case based upon negligent misrepresentation by the fiduciary. (68 Cal. App.3d at p. 823.)
[9] One commentator suggests that failure to discover and disclose defects constitutes negligence, rather than a breach of fiduciary duty and should not be sufficient to qualify for "benefit of the bargain" damages. (O'Leary, supra, at p. 147.)
[10] Although we do not adopt the analysis distinguishing between professional negligence and constructive fraud by a fiduciary, we note the result would be the same in this case. As stated heretofore, substantial evidence supported the court's finding of constructive fraud by the fiduciary, warranting the broader "benefit of the bargain" measure even under the Miller and Starr analysis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263287/ | 27 F.Supp. 526 (1939)
MOORE MACHINERY CO.
v.
STEWART-WARNER CORPORATION.
No. 20484-S.
District Court, N. D. California, S. D.
April 11, 1939.
Keyes & Erskine, of San Francisco, Cal., for plaintiff.
Chickering & Gregory, of San Francisco, Cal., for defendant.
*527 ST. SURE, District Judge.
Plaintiff, a resident of California, brought suit in the state court, and defendant removed to this court on the ground of diversity of citizenship. The action arose out of disputes over transactions occurring while plaintiff was acting under contracts as defendant's "distributor" in portions of California, Nevada, and Arizona.
Defendant appeared here specially and moved to quash service of summons on the ground that defendant is a Virginia corporation with its principal place of business in Chicago, Illinois; that it maintains no office and transacts no business in California; that plaintiff attempted to serve defendant by serving the Secretary of State in accordance with § 406a of the Civil Code of California; that said attempted service is void because at the date of filing the complaint defendant was not doing business in the state of California, nor had it at any time transacted intrastate business in the state as defined in § 405 of the Civil Code of California.[1] This is the sole question for decision under the facts, as shown by the contracts directly involved and affidavits of the parties.
The determination of this question "is often a matter of great difficulty and extreme nicety. No all-embracing rule as to what is doing business has been laid down." Fletcher Cyclopedia Corporations, Permanent Edition, Vol. 18, § 8733. In Hutchinson v. Chase & Gilbert, 2 Cir., 45 F.2d 139, a case in which the defendant had never done any continuous business in New York state, Judge Learned Hand, in considering the question, found it, 45 F.2d page 142, "quite impossible to establish any rule from the decided cases; we must step from tuft to tuft across the morass." In Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915, 917, 918, the late Judge Cardozo said: "If in fact it [the corporation] is here, if it is here, not occasionally or casually, but with a fair measure of permanence and continuity, then, whether its business is interstate or local, it is within the jurisdiction of our courts," citing International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479. "But there is no precise test of the nature or extent of the business that must be done. All that is requisite is that enough be done to enable us to say that the corporation is here." As pointed out in International Harvester Co. v. Kentucky, supra, each case must depend upon its own facts.
Plaintiff has sued defendant for "goods sold and delivered, money had and received, and damages," in the total sum of $54,053.10 with interest. The complaint contains twenty-two counts, and attached to it as exhibits are six contracts, extended reference to one of which will suffice to show defendant's method of doing business. Exhibit "A" is an agreement relating to the sale of lubrication products known as Alemite. It was made between the parties on August 1, 1936, at Chicago, Illinois, and shows the following facts:
Defendant granted to plaintiff an exclusive franchise for fifteen counties in southern California and one in Nevada, reserving to itself the "exclusive right to sell its products in the territory" mentioned "to all railroads, manufacturers of motors, motor vehicles and motorboats, and to any other manufacturers who might use Alemite Products as factory equipment on their products." Defendant also reserved to itself "the right to grant, bargain, sell or give away its products in the territory hereby granted to plaintiff to any and all persons, firms, or corporations, including persons or corporations engaged in the selling of petroleum and its products or tires, directly or indirectly, through subsidiaries or associated companies doing business or having branches in two or more states or territories of the United States." Plaintiff agreed "to service and keep in good condition and repair" all products so sold by defendant direct, accepting in full payment such sum as defendant "may in its sole discretion, determine to be fair and reasonable compensation." Plaintiff agreed not to make repairs on any products other than those of defendant, and not to purchase, carry in stock, handle, or deal in any other products than defendant's; to buy defendant's products, advertising matter, and stationery at prices established by defendant. For plaintiff's failure to meet payments promptly, defendant could terminate the agreement by writing or telegram.
In January of each year defendant would notify plaintiff of the quota of products which plaintiff was expected to sell each month. If sales fell below 65% of the quota, defendant could terminate the *528 agreement. Plaintiff agreed to spend a certain amount annually for advertising, as directed by defendant. Plaintiff could not return any products without defendant's permission, and if permission were given, a handling charge of 10% would be made.
Plaintiff would use the trade name "Alemite" in connection with goods purchased from defendant, but this was a revocable license. Plaintiff would conduct its own business in its own name and upon its own responsibility "and has no authority whatsoever to bind" defendant, and plaintiff would not hold itself out as agent of defendant or use the name "Alemite" in any manner tending to give the impression that plaintiff represented Alemite in any way whatsoever. Plaintiff agreed to indemnify defendant from all claims for damages to property or for personal injuries sustained by any third party, growing out of the conduct of the business.
Plaintiff would, during the first ten days of each month, give defendant a complete statement of all sales made by plaintiff, and would at all times permit a duly authorized agent of defendant to examine plaintiff's books; would furnish defendant with a statement of its inventory of Alemite products whenever defendant so requested, and also an inventory of plaintiff's furniture, fixtures, equipment, and building improvements and betterments.
Defendant could cause the properties in such inventory to be insured against fire at their full value under a general policy protecting all distributors under contract with defendant against fire loss, plaintiff to pay for such insurance. In case of loss by fire, defendant could collect the insurance, and after deducting any sum due defendant from plaintiff, return the surplus, if any, to plaintiff.
This contract, if not sooner terminated by either party under the conditions provided, would expire on December 31, 1937. Upon cancellation or termination of the contract, the products enumerated which were left in plaintiff's hands would be sold and transferred to defendant at the prices named. All advertising signs bought by plaintiff from defendant would be repurchased by defendant under the conditions and at the prices named.
The cancellation or termination of this contract would be construed as a resale by plaintiff to defendant of all products which defendant was required or elected to repurchase. Any rights under this contract would not be transferable without defendant's consent.
Exhibit "C" is a contract similar to exhibit "A," but applies to forty-three counties in California and ten in Nevada.
Exhibit "D" is a similar agreement covering radios and parts, designated as radio products, covering fourteen counties in southern California, four in Nevada, and one in Arizona. In this contract plaintiff agreed: "To solicit and establish within its territory retail outlets herein referred to as `Dealers' to sell and service Stewart-Warner radio products"; to furnish defendant with a list showing names, addresses, activities, etc., of such dealers; "to maintain an adequate radio sales force and an adequate staff of technical experts trained in the selling and servicing of Stewart-Warner radio products"; that charges for repairing radios would not be in excess of prices established by defendant; to maintain such test equipment and tools as defendant may recommend.
Defendant reserved "the right to fill service orders and requests direct from the factory when in" defendant's "opinion conditions seem to warrant such action."
In case of cancellation of this contract defendant reserved the right to sell through other outlets. Upon cancellation or termination of the contract defendant agreed to repurchase at a certain price plaintiff's inventory of radios which were in good condition.
Exhibit "E" is similar to exhibit "D," but covers forty-seven counties in northern California and nine in Nevada.
Exhibit "F" is similar to exhibit "D", but is for "refrigerators and parts therefor," designated as refrigerator products, and covers eleven counties in southern California, four in Nevada, and one in Arizona. It also provides that defendant reserves to itself "any and all business with Governmental Agencies, and Educational and Charitable Institutions." Plaintiff agreed to cooperate with defendant in the installation and servicing of all refrigerator products so sold, defendant to pay plaintiff for such work "on a basis determined by" defendant.
Exhibit "G" is similar to exhibit "F," except that it covers forty-seven counties in northern California and nine in Nevada.
*529 All of the contracts between the parties were terminated by mutual consent. The Alemite contracts, exhibits "A" and "C," were terminated on or about September 25, 1937. F. B. Kirch, assistant secretary and treasurer of defendant, states in an affidavit that on or about September 27, 1937, defendant caused to be organized under the laws of California a corporation known as Alemite Company of Southern California. The entire capital stock was subscribed for by defendant, and the Company took over the inventory of plaintiff. On September 29, 1937, defendant caused to be organized Alemite Company of Northern California, and the same procedure was followed. Since October 1, 1937, these two corporations "have acted as distributors for" defendant "under the same terms and conditions as distributors are appointed and act in other states of the United States." The remaining four contracts, exhibits "D," "E," "F," "G," relating to radio products and refrigerator products, were taken over by defendant on or about December 15, 1937, and transferred to other "distributors."
Defendant is a nationally known corporation, and it is a matter of common knowledge that it markets its products in every state of the Union. In the instant case there were contracts between the parties for portions of three states. Mr. Kirch, assistant secretary and treasurer of defendant, in his affidavit speaks of doing business "in other states of the United States." In the affidavit of L. A. Ballard, employed in the sales department of defendant, mention is made of defendant's "nation-wide" business.
It is apparent that the contracts were drawn with a studied attempt to circumvent the laws of agency and state statutes relating to jurisdiction and the service of process. But calling the plaintiff a "distributor" rather than an agent, or using such phrases as are employed in paragraph 9 of the contract[2] does not obscure the real facts and purpose of defendant.
Defendant sent into California its agents, called factory men, who instructed plaintiff in sales policies and methods; held meetings of plaintiff's salesmen and instructed them in the sales methods they were to use; held meetings of salesmen, jobbers, and dealers; together with agents of plaintiff, called upon dealers and jobbers in an endeavor to aid plaintiff's agents in making sales; gave plaintiff advice regarding methods of advertising; assisted plaintiff in servicing Alemite products theretofore sold; actively stimulated and promoted sales of products. These facts are amply shown by the correspondence between the parties.
The business done by defendant in this state may be described, in the language of the cases, as "substantial," "permanent," and "continuous." Indisputably, the defendant is "here," doing business in a large way. The terms of the contracts created "a limited agency in the distributor, under which the latter discharged various obligations for the manufacturer in disposing of its products within the specified area. The distributor was not an independent merchant dealing with the manufacturer upon its own initiative, but conducted its business * * * in conformity with the stipulations contained in the contract." Carroll Electric Co. v. Freed-Eisemann Radio Corp., 60 App.D. C. 228, 50 F.2d 993, 994.
The persistent efforts of foreign corporations to evade service of jurisdictional process in the states has led some courts to suggest the application of a practical test, that where the defendant corporation's local activities justify it, the defendant be drawn from its home state. As in this case, upon the ground of fairness, instead of sending plaintiff to Virginia or Illinois to try its case, bring defendant here. Hutchinson v. Chase & Gilbert, supra; Hurley v. Wells-Newton Nat. Corp., D.C., 49 F.2d 914, 919.
Thirty-nine years ago Judge Hawley, writing the opinion for the 9th Circuit in Denver & R. G. Co. v. Roller, 100 F. 738, said, at page 743, 49 L.R.A. 77: "The general drift and tendency of judicial decisions, state and national, is in the direction of placing corporations upon the same plane as natural persons, in regard to the jurisdiction of suits by or against them. *530 The statutes of the different states and of the United States have, as a general rule, been liberally construed for the purpose of sustaining this view, although the decisions of the state courts upon the precise point under discussion are not entirely harmonious."
If, more than a generation ago, it were thought advisable to place "corporations upon the same plane as natural persons, in regard to the jurisdiction of suits," surely in this day of great corporations and their mass production and intensive universal salesmanship and distribution, there is every reason for the establishment of such a rule.
Under the facts here shown I am of the opinion that the defendant was doing business in the state of California, and service of summons was properly made. International Harvester Co. v. Kentucky, supra; Tauza v. Susquehanna Coal Co., supra; Carroll Electric Co. v. Freed-Eisemann Radio Corp., supra; Hurley v. Wells-Newton Nat. Corp., supra; La Porte Heinekamp Motor Co. v. Ford Motor Co., D.C., 24 F.2d 861; American Asphalt Roof Corp. v. Shankland, 205 Iowa 862, 219 N.W. 28, 60 A.L.R. 986.
California decisions are in line with the holdings of the cases just cited. See Milbank v. Standard Motor Const. Co., 132 Cal.App. 67, 70, 22 P.2d 271.
The motion to quash service will be denied.
NOTES
[1] § 405, C.C. provides: "The term `transact intrastate business' * * * means entering into repeated and successive transactions of its business in this State, other than interstate or foreign commerce."
[2] "The Distributor shall conduct his (or its) business in his (or its) own name and upon his (or its) own responsibility, and has no authority whatsoever to bind Alemite in any way, and the Distributor covenants that he (or it) will not hold himself (or itself) out as the agent of Alemite or use the name of `Alemite' in any manner tending to give the impression that he (or it) represents Alemite in any way whatsoever." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263290/ | 27 F.Supp. 341 (1939)
In re MUSGRAVE.
No. 3468-C.
District Court, N. D. West Virginia.
April 25, 1939.
*342 Louis D. Meisel, of Fairmont, W. Va., for trustee.
Harry Shaw, of Fairmont, W. Va., for claimant and petitioner C. M. Williamson.
HARRY E. WATKINS, District Judge.
Claimant, C. M. Williamson, filed a preferred claim for wages in the amount of $3,285.09. The trustee objected to the claim, whereupon the objections were tried before the referee who denied the claim because of insufficient evidence. The claimant filed a petition to review the referee's order, alleging error in general terms.
Chapter 39(c) of the Bankruptcy Act of 1938, 11 U.S.C.A. § 67(c), and former General Order XXVII, 11 U.S. C.A. following section 53, require that the petition for review set out the error complained of. Here the petition for review alleges error in general terms only, viz: that the claim was disallowed. This is not sufficient to satisfy the requirements. The court should not be compelled to search the record for error. Where the assignment of error is that a particular finding is not supported by evidence without showing how it fails to support the finding, the assignment is insufficient. Virginia Ry. Co. v. Chambers, 4 Cir., 46 F.2d 20; in the Matter of Florsheim, bankrupt, D.C., 24 F.Supp. 991. While the court may decline to pass upon points not specifically designated, it is apparent from this record that this assignment of error is based upon the insufficiency of the evidence, and in the interest of expeditious justice the sufficiency of the evidence will now be considered.
In May, 1933, bankrupt purchased an undertaking business from Springer Brothers. Claimant, then employed as an undertaker by the latter, continued to work for the bankrupt after the purchase. Whether or not the claim should be allowed depends on the terms of employment as to compensation. Claimant takes the position that he was employed by the bankrupt at the rate of $150 per month, and in addition thereto was to have free rent, water, light and gas in an apartment occupied by him and his family at the place of business. The trustee and the bankrupt contend that he was employed upon a case basis of $5 to $20, depending upon the type of body handled, plus free rent and utilities. Upon the former basis the bankrupt is indebted to him for the amount claimed. Upon the latter basis he has been overpaid to the extent of $1,064.03. The referee held that the evidence was insufficient to sustain the claim upon either an express contract or a quantum meruit basis.
Claimant continued in the employment of the bankrupt until the date of bankruptcy, a period of more than five years. During all this time he made no complaint or demand for the large amount of accumulated salary, or any part thereof. Bankrupt says that he had no knowledge of any claim for back salary until about the time of bankruptcy. Claimant attempts to explain this by saying that he understood that he was to become a partner, and was letting the salary due him accumulate to pay for a half interest in the business. It is significant, however, that the claimant, himself, does not contend that any price had ever been agreed upon. Bankrupt denies any partnership or any such agreement. At the time bankrupt purchased the business, and for a year prior thereto, claimant admits that he was employed by Springer Brothers upon the exact case basis of compensation claimed by the bankrupt, but contends that a new verbal agreement for salary at the rate of $150 per month was made by the bankrupt at the time of his purchase. Claimant and his wife, the only witnesses to the alleged verbal agreement, are not in accord in their testimony. Claimant testified that bankrupt at that time said that he figured on continuing the employment "on the same terms", to which, claimant says, he objected. The wife testified that nothing was said in that conversation by either her husband or the bankrupt about her husband continuing to work on the same *343 terms. The meager records kept by both parties are virtually in accord as to dates and amounts of payment. The evidence shows that after bankrupt took over the business, payments were made to claimant from time to time, generally in denominations of five, ten and twenty dollars, and other small amounts. At no one time did the bankrupt ever pay claimant the exact sum of $150. There were only two months during the five-year period when the payments totaled $150, the monthly salary claimed.
Under the agreement, as claimed by the trustee, the claimant has been overpaid $1,064.03. Bankrupt attempts to explain the overpayments by saying that the number of cases coming in were not numerous enough to make claimant a decent living, and that he made additional payments in the nature of gifts, as he was able to do so. According to the evidence the free rent and utilities were worth $50 per month. The referee has made certain specific findings of fact. He finds that no contract was made in any manner for the payment of $150 per month as claimed by the claimant. He further finds that the claimant has been paid at the rate of $147.50 per month and that in view of the relatively small volume of business done, this amount is a reasonable compensation for the services of the claimant on a quantum meruit basis. The referee says "after hearing and seeing the witnesses and considering the testimony offered, together with the exhibits filed with the testimony, and after considering the argument of counsel, the referee came to the definite conclusion that the claimant had not carried the burden of proof resting upon him in this instance". When the findings of a referee are based upon conflicting evidence involving questions of credibility, and the referee has heard the witnesses and observed their demeanor, great weight attaches to his conclusions, and the weight of authority is, that the district judge, while scutinizing with care his conclusions upon a review, should not disturb his findings unless they are manifestly unsupported by the evidence. In re Lawrence, 2 Cir., 134 F. 843. The findings of fact of a referee in bankruptcy upon questions of fact are not to be disturbed unless clearly erroneous. In re Braselton, D.C., 169 F. 960. The courts have so held from time immemorial in countless cases, and there is no case to the contrary. Remington on Bankruptcy, Sec. 3669.
Here there is a sharp conflict in the testimony. The court must believe either the claimant and his wife, or the bankrupt, and find the facts. This particular duty has been entrusted to the referee, who has had the inestimable advantage of hearing and seeing the witnesses, and observing of their manner and demeanor. After reading the entire record, I have found it impossible to conclude that the referee was clearly wrong in any of his findings of fact or conclusions of law. Believing that there is substantial evidence to sustain his findings, such findings are adopted as the findings of this court, the petition for review is denied, and the order of the referee is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263297/ | 27 F.Supp. 630 (1938)
R. B. SEMLER, Inc.,
v.
KIRK.
No. 9421.
District Court, E. D. Pennsylvania.
January 5, 1938.
Hirsh W. Stalberg, of Philadelphia, Pa., for plaintiff.
Kennard N. Ware, Howson & Howson, all of Philadelphia, Pa., for defendant.
MARIS, District Judge.
This is a suit in equity brought by the owner of a trade-mark seeking an injunction against alleged trade-mark infringement and unfair competition. From the evidence I make the following special findings of fact:
The plaintiff is a New York corporation and the defendant is a resident and citizen of the State of Pennsylvania doing business in Philadelphia under the trade name Franklin Sales Company.
The plaintiff has been engaged since 1930 in the business of manufacturing under a secret formula a hair tonic which it has sold under the trade-mark Kreml. Ernst Schaufler, the plaintiff's predecessor in the business, was engaged in it from 1911 to 1930. The hair tonic is sold and the trade-mark Kreml used by the plaintiff in interstate commerce.
The plaintiff is the present owner by assignment of the trade-mark Kreml which was registered in the United States Patent Office on November 13, 1928, and a certificate of registration No. 249,390 issued to plaintiff's predecessor, Ernst Schaufler. Plaintiff's product, which is widely advertised and sold, is composed of two immiscible liquids, a clear colorless liquid which comprises about 90% of the total volume and a yellow oily liquid which floats on the top of the other. The product is marketed by the plaintiff in sixteen ounce bottles only.
For some years the defendant has purchased sixteen ounce bottles of plaintiff's *631 product in the original packages as put out by the plaintiff and has rebottled the Kreml hair tonic by transferring the contents of the purchased bottles to other bottles. In some cases the product has been rebottled by the defendant in sixteen ounce bottles and in other cases in eight ounce bottles. Where the defendant has used sixteen ounce bottles he has merely transferred all of the contents of one of plaintiff's sixteen ounce bottles into another bottle of the same size. Where he has rebottled into eight ounce bottles he has attempted to divide the contents of one of plaintiff's sixteen ounce bottles into two eight ounce bottles, but in doing so it appears that in many cases he has not been able to maintain in each eight ounce bottle the original proportions of the two liquids of which the product is composed.
Prior to the institution of this suit the defendant, in rebottling plaintiff's product, used labels upon his bottles which simulated and were deceptively and confusingly similar to the labels used by the plaintiff on its bottles. Since the granting of the preliminary injunction in this case, however, the defendant has discarded those labels and has used labels which comply entirely with the terms of the preliminary injunction.
In this suit the plaintiff complains that the defendant has competed unfairly with it and infringed its rights in the trademark Kreml. The complaints which it pressed at the trial may be classified as, first, the use by the defendant upon its bottles of labels similar in appearance to those of the plaintiff, including the open and prominent use of the word Kreml; second, the rebottling by the defendant of plaintiff's product in any manner, and, third, the rebottling by the defendant of plaintiff's product in such a way as to cause changes in the composition of the product. These complaints we will consider in order:
First. Prior to the filing of the bill the defendant had been using on his bottles a label on which the word Kreml appeared in large letters of a type quite similar to that used by the plaintiff on its bottles. This court on May 26, 1936, upon the plaintiff's motion, granted a preliminary injunction restraining the defendant from continuing that use of plaintiff's trademark. The injunction expressly provided, however, that it should not prevent the defendant from rebottling and reselling the plaintiff's product purchased by him and from stating that fact upon his labels in substantially these words: "Genuine Kreml, rebottled by Franklin Sales Company, not connected with makers of Kreml." The injunction required every word in this statement to be in letters of the same size, color, type and general distinctiveness and lettering, and directed the defendant to make no use of the word Kreml except as part of this statement. Following the issuance of the preliminary injunction the defendant changed his labels to conform thereto and has not used any of the former labels since that time. He conceded at the trial that the preliminary injunction was properly granted and agreed that it might be made permanent. It is, therefore, clear that plaintiff is entitled to this much relief.
Second. The plaintiff urges that it is also entitled to have the defendant restrained altogether from rebottling its product without its consent. It is a sufficient answer to this contention, however, to say that the Supreme Court in Prestonettes, Inc., v. Coty, 264 U.S. 359, 44 S. Ct. 350, 351, 68 L.Ed. 731, definitely held that the purchaser of a trade-marked product has the right by virtue of his ownership to compound or change what he bought, to divide either the original or the modified product, to sell it so divided, and in so doing to use the trade-mark as a part of an inscription to describe the origin of the product, provided it is not used in different letters from the rest of the inscription. In that case Mr. Justice Holmes said:
"But when it in no way stands out from the statements of facts that unquestionably the defendant has a right to communicate in some form, we see no reason why it should not be used collaterally, not to indicate the goods, but to say that the trade-marked product is a constituent in the article now offered as new and changed. As a general proposition there can be no doubt that the word might be so used. If a man bought a barrel of a certain flour, or a demijohn of Old Crow whisky, he certainly could sell the flour in smaller packages or in former days could have sold the whisky in bottles, and tell what it was, if he stated that he did the dividing up or the bottling. And this would not be because of a license implied from the special facts but on the general ground that we have stated. It seems to us that no new *632 right can be evoked from the fact that the perfume or powder is delicate and likely to be spoiled, or from the omnipresent possibility of fraud. If the defendant's rebottling the plaintiff's perfume deteriorates it and the public is adequately informed who does the rebottling, the public, with or without the plaintiff's assistance, is likely to find it out. And so of the powder in its new form."
Conceding that Prestonettes, Inc. v. Coty, supra, supports the defendant's position, the plaintiff argues that it has been overruled by Old Dearborn Distributing Co. v. Seagram Corp., 299 U.S. 183, 57 S. Ct. 139, 81 L.Ed. 109, 106 A.L.R. 1476. That case, however, related only to the constitutional validity of the Fair Trade Act of Illinois, Smith-Hurd Stats. c. 121½ § 188 et seq., which permitted the vendor of a trade-marked article to contract with the buyer against the resale of the article except at the price stipulated. What the court decided was that a State might by statute confer such a right upon the vendor of a trade-marked article. The court, however, did not suggest that such a right existed under the common law. In fact it pointed out that in Dr. Miles Medical Co. v. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502, it had expressly held to the contrary. That the court did not intend to overrule the Prestonettes case was clearly indicated by Mr. Justice Sutherland, when he said (299 U.S. page 195, 57 S.Ct. page 145, 81 L.Ed. 109, 106 A.L.R. 1476): "There is nothing in the act to preclude the purchaser from removing the mark or brand from the commodity thus separating the physical property, which he owns, from the good will, which is the property of another and then selling the commodity at his own price, provided he can do so without utilizing the good will of the latter as an aid to that end."
The court thus indicated that even the act there under consideration did not affect the right of a purchaser to do what the defendant has done in this case provided he does so without utilizing the good will of the manufacturer. The Prestonettes case is authority for the proposition that in the absence of a statutory prohibition the use of the trade-mark to the extent authorized in the preliminary injunction granted in this case is not an improper utilization of the good will of the trade-mark proprietor. No statute is relied on in this case and it, therefore, follows that the rebottling operations of the defendant may not be totally restrained at the instance of the plaintiff provided the defendant's labels conform to the rule laid down in the Prestonettes case and reflected in the preliminary injunction which was granted in this case.
Third. The plaintiff argues, however, that with respect to the rebottling of Kreml from its sixteen ounce bottles into the defendant's eight ounce bottles the product is so changed in composition as no longer to be in fact plaintiff's Kreml. It is doubtless true, as plaintiff contends, that the value of its product Kreml lies not only in its ingredients but also in the proportions in which they are introduced into the product. In view of the rather substantial variation in the proportions of the two immiscible liquids of plaintiff's product found in defendant's eight ounce bottles I have concluded that there is merit in this contention of the plaintiff. In view of the immiscible character of the two liquids it is obviously quite difficult for the defendant by the process he uses to transfer the contents of one of plaintiff's sixteen ounce bottles into two eight ounce bottles in such a way as accurately to preserve the proportions of the two liquids as they appear in plaintiff's product. Unless this is done, however, it is obvious that the resulting product is not Kreml but at best but a distortion of it. I accordingly conclude that plaintiff is entitled to have the defendant restrained from using the word Kreml even to describe the origin of the rebottled product contained in such of his bottles as are of smaller capacity than those in which the product was contained when it was purchased by the defendant.
The defendant is entitled to rebottle and sell plaintiff's Kreml hair tonic purchased by him.
The defendant is not entitled to use the trade-mark Kreml upon his labels except as a part of the following inscription: "Genuine Kreml, rebottled by Franklin Sales Company, not connected with the makers of Kreml," and then only in letters of the same size, color, type and general distinctiveness and lettering as the other words of the inscription.
The defendant is not entitled to use the trade-mark Kreml in any form upon bottles containing plaintiff's product in which in the course of rebottling the plaintiff's proportion of ingredients has not been preserved.
*633 The defendant is not entitled to use the word Kreml even to describe the origin of the rebottled product contained in such of his bottles as are of smaller capacity than those in which the product was contained when it was purchased by the defendant.
The plaintiff is entitled to a decree granting a perpetual injunction restraining the defendant from the use of the trade-mark Kreml except to the extent hereinabove indicated, with costs.
A decree may be entered accordingly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263313/ | 142 F.Supp. 688 (1956)
JULIAN B. SLEVIN COMPANY, Inc., a corporation,
and
Julian B. Slevin, Jr.,
v.
The BARTGIS BROTHERS COMPANY, a corporation.
Civ. No. 8040.
United States District Court D. Maryland, Civil Division.
June 28, 1956.
John W. Avirett, 2d, Baltimore, Md., Henry N. Paul, Jr., John F. A. Earley, Jr., Paul & Paul, A. Arthur Miller and Fox, Rothschild, O'Brien & Frankel, Philadelphia, Pa., for plaintiffs.
*689 Daniel B. Leonard and Bowie, Burke & Leonard, Baltimore, Md., Leslie B. Young, Stanton T. Lawrence, Jr., and Pennie, Edmonds, Morton, Barrows & Taylor, New York City, for defendant.
THOMSEN, Chief Judge.
This is a typical patent suit in which plaintiffs claim that defendant is infringing plaintiffs' patent by making, using and selling bottle carriers embodying the patented invention, and defendant raises the issues of validity and infringement. More than a year after answering, defendant now moves for leave to amend its answer by adding thereto a counterclaim. The proposed counterclaim is an informer action under 35 U.S.C.A. § 292; it charges plaintiffs with false marking, and asks the court (1) to assess against plaintiffs the statutory fine for each offense found to have been committed, (2) to enjoin further false marking by plaintiffs, (3) to enter judgment in favor of defendant for half the total fine assessed and in favor of the United States for the other half, and (4, 5) to award defendant costs, attorneys' fees, and other and further relief.
At the hearing on the motion the parties agreed that if leave to amend the answer and file the counterclaim were granted, plaintiffs would file a motion to dismiss, and argument was heard on both the pending and the proposed motions.
Subdivisions (e) and (f) of Rule 13, Fed.Rules Civ.Proc., 28 U.S.C., provide:
"(e) Counterclaim Maturing or Acquired After Pleading. A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading."
"(f) Omitted Counterclaim. When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment."
It is not alleged that the counterclaim matured or was acquired after the answer was served. Counsel for defendant states that his client did not know of the alleged false marking at the time the answer was served, but that counsel learned of it while preparing to take some depositions four months or more before the motion to set up the counterclaim was filed. The question, therefore, is whether the court in its discretion should grant leave to set up the counterclaim at this time.
There is some doubt whether a corporation qualifies as an informer under 35 U.S.C.A. § 292. In Forest R. Etling, Inc., v. Weather-Seal, Inc., D.C.N.D. Ohio, 58 F.Supp. 269, which arose under an earlier act, Judge Jones said:
"* * * The act of obtaining information and informing by reason of its nature is one which can only be performed by a natural person. The reward provided by the statute arises from this personal act. If a corporation could bring the suit and claim a share of the penalty, the reward would go to the stockholders who performed no services and had no personal part in securing the information or filing the suit. Such, in my opinion, is not the intent of the statute."
In Hat-Sweat Manufacturing Co. v. Davis Sewing Machine Co., D.C.S.D. N.Y., 31 F. 294, the plaintiff apparently was a corporation, but it does not appear that the capacity of a corporation to bring the action was questioned.
When those decisions were rendered, 1 U.S.C.A. § 1 read: "In determining the meaning of any Act or resolution of Congress * * * the word `person' may extend and be applied to partnerships and corporations * * *." Later, in 1948, 1 U.S.C.A. § 1 was amended to read: "In determining the meaning of any Act of Congress, unless the context indicates otherwise * * * the words `person' and `whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals; *690 * * *" In 1952 the new patent law was adopted, including the false marking section, 35 U.S.C.A. § 292, which now provides: "(b) Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States."
But it is not necessary to decide in this case whether the context requires that the word "person", as used in 35 U.S.C.A. § 292(b), be construed not to include a corporation. Nor is it necessary to decide whether that section now permits such a suit to be filed under 28 U.S.C.A. § 1395, wherever the defendant may be found. Cf. 35 U.S.C.A.Appendix, § 50, the old statute, which required that the suit be filed in a district court within whose jurisdiction the offense had been committed. See Pentlarge v. Kirby, D.C.E.D.N.Y., 19 F. 501.
Although some of the issues involved in the original suit and in the proposed counterclaim are the same, the counterclaim does not arise out of the transaction or occurrence that is the subject matter of the plaintiffs' claim. It is, therefore, a permissive rather than a compulsory counterclaim. Rule 13(a). There does not appear to be any dispute about that point.
A fraudulent purpose or intention to deceive the public is an essential element of the offense charged in the counterclaim. London v. Everett H. Dunbar Corp., 1 Cir., 179 F. 506; Zuckerman v. Pilot, D.C.S.D.N.Y., 71 F.Supp. 478; Calderwood v. Mansfield, D.C.N.D. Cal., 71 F.Supp. 480. The decision of this question would probably require a considerable amount of evidence not necessary to decide the issues now involved in the case. On the other hand, the decision of the existing issues may end the controversy.
At the hearing on the pending motion plaintiffs offered in evidence, without objection, excerpts from the testimony of Walter F. Daley, taken in New York City on May 23, 1956, in which he stated that he is the person in defendant's organization in charge of the defense of this case, that he is as familiar with the counterclaim as anyone, and that it was filed under advice of counsel and not at the instance of anyone in defendant's organization. Counsel for defendant stated that he himself learned about the alleged false marking while preparing the defense of the pending suit, and told his client about it. In Zuckerman v. Pilot, supra, Judge Leibell questioned the propriety of an attorney bringing an informer action in his own name where the circumstances indicate that the action is in reality an attempt by one competitor to retaliate against another as a counter measure to an action for patent infringement. See also Calderwood v. Mansfield, supra.
The proposed counterclaim is in the name of the corporation, not the lawyer, but if it were finally held that the corporation had no right to file the counterclaim, the decision would not be a bar to a similar action against plaintiffs by any individual. Under all the circumstances, I conclude that the motion to amend the answer should be denied. It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263377/ | 142 F.Supp. 263 (1956)
Albert P. DENIS and Denis Manufacturing Co., Inc.,
v.
PERFECT PARTS, Inc., City Auto Parts, Incorporated and David H. Kawadler.
Civ. A. No. 55-911.
United States District Court D. Massachusetts.
May 23, 1956.
W. R. Hulbert, William W. Rymer, Jr., Fish Richardson & Neave, Boston, Mass., for plaintiff.
Harry Price, New York City, for defendant.
ALDRICH, District Judge.
In this action for patent infringement defendant has filed an affidavit of bias or prejudice seeking to disqualify me. The affidavit does not proceed on the basis that I am personally prejudiced, or have any general prejudice, either against the defendant, or in favor of the plaintiff, but is on the special ground that I have predetermined the question of the validity of the patent in a previous action by the same plaintiff against a different defendant, and have been affirmed by the Court of Appeals.
I requested counsel to brief his view that this constituted prejudice within the meaning of the disqualification statute, 28 U.S.C. § 144. He has not seen fit to oblige, and now states he is unable to do so. This is not surprising. The law has been settled the other way for many years. See, e. g., Parker v. New England Oil Corp., D.C.D.Mass., 13 F.2d 497; Craven v. United States, 1 Cir., 22 F.2d 605, certiorari denied 276 U.S. 627, 48 S.Ct. 321, 72 L.Ed. 739; Morse v. Lewis, 4 Cir., 54 F.2d 1027, certiorari denied 286 U.S. 557, 52 S.Ct. 640, 76 L.Ed. 1291; Ferrari v. United States, 9 Cir., 169 F.2d 353. The statute is directed to personal bias, not to previous judicial exposure to the same or similar questions. On defendant's theory a judge's growth in wisdom and experience would serve only to limit his activities to fields in which he had none. The affidavit of prejudice is stricken.
This brings me to counsel's certificate of good faith which accompanied the motion. A motion to disqualify the court for bias and prejudice is a serious undertaking, as evidenced by the fact that it must be in affidavit form, with a certificate of counsel. I gather, from counsel's statement in open court when *264 I called upon him to account, that he examined no law before filing. He conceded that prior to the hearing he investigated the cases and concluded the affidavit was improvident, and that the motion ought to be waived. In spite of this conclusion he did not, even at the time of hearing, seek to withdraw the motion, but argued at some length in its support. The fact that this argument was not persuasive, either in character or effect, scarcely, as now suggested, militates in his favor.
A certificate of good faith must mean, at the least, that counsel has some belief that the motion is arguably proper. The certificate is a continuing representation. Cf. Stipcich v. Metropolitan Life Insurance Co., 277 U.S. 311, 48 S.Ct. 512, 72 L.Ed. 895. At an appropriate time I will consider what, if any, disciplinary action is appropriate. Cf. Rule 11, Fed.Rules Civ.Proc., 28 U.S.C.A. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334989/ | 659 S.E.2d 692 (2008)
STANTON
v.
FISHER.
No. A07A1916.
Court of Appeals of Georgia.
March 13, 2008.
*693 Lane & Jarriel, Thomas F. Jarriel, Macon, for appellants.
Jones, Cork & Miller, Hubert C. Lovein, Jr., Elizabeth B. Baum, Macon, for appellee.
BERNES, Judge.
This action involves the right to proceeds of an accidental death insurance policy paid into the registry of the court by the insurer. The deceased, Charles R. Evans, Sr., is the insured. Evans's estate and children, the appellants,[1] and Evans's ex-wife, the appellee,[2] all claim to be the beneficiaries entitled to the policy proceeds. The parties filed cross-motions for summary judgment. Granting summary judgment in appellee's favor, the trial court determined that there were no genuine issues of material fact and that appellee was the sole beneficiary under the policy as a matter of law. For the reasons discussed below, we affirm.
On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo. "To prevail on summary judgment, the moving party must show that there is no genuine issue of material fact and that the evidence, viewed in a light most favorable to the nonmoving party, warrants judgment as a matter of law." (Footnote omitted.) Cantera v. American Heritage Life Ins. Co., 274 Ga.App. 307, 308, 617 S.E.2d 259 (2005).
So viewed, the record shows that Charles R. Evans, Sr. was married to Eva Marie Evans, but they divorced in 1998. During their marriage, they had three children: appellants Charles R. Evans, Jr., Eva Elizabeth Stanton, and Ana Marie Evans.
In 2003, Evans married appellee Barbara Connie Fisher. Evans thereafter applied for and obtained an accidental death and dismemberment insurance policy from the insurer Combined Insurance Company of America. Evans designated appellee as the beneficiary for the policy. Evans and appellee subsequently divorced in 2004.
On June 11, 2006, Evans died as a result of multiple traumatic injuries sustained in a motorcycle accident. Following Evans's death, appellants, through their counsel, wrote a letter to Combined seeking payment of the policy proceeds. Combined responded by noting that the policy's designated beneficiary was appellee and thus declined to issue payment to appellants. Appellants contended that after his divorce from appellee, Evans filled out and mailed to Combined change of beneficiary forms naming them as beneficiaries.
Faced with the conflicting claims, Combined filed the instant interpleader action seeking to deposit the policy proceeds into the court's registry for the court's determination of which party was entitled to the proceeds. Combined's request to deposit the funds into the court registry was granted, and Combined was discharged and released from liability.
*694 The parties filed cross-motions for summary judgment in support of their respective claims of entitlement to the proceeds. Appellee relied upon the written beneficiary designation in the policy in support of her claim. Appellants submitted the affidavits of their mother and Evans's ex-wife, Eva Marie Bruce, and her husband, Michael Bruce, in support of their claim. Mrs. Bruce averred that prior to his death, Evans
showed [her] a letter that he was sending to Combined . . . that . . . said that he was divorced and that he wanted to change the beneficiary to [their] three children. The children were named in the letter. [Evans] was quite angry at his ex-wife, [appellee], because she had filed a contempt action against him. He stated that he wanted to make sure that she did not receive anything as beneficiary of any insurance policy.
Mrs. Bruce further averred that Evans told her that he mailed the beneficiary change notice a week or two after their initial conversation regarding the subject. Appellants did not produce a copy of the letter referred to in Mrs. Bruce's affidavit. In his affidavit, Michael Bruce averred that Evans was upset that appellee had filed a contempt action against him. He stated that he saw Evans show Mrs. Bruce some documents and heard him state that he wanted to change the beneficiaries to his children. In light of these submissions, the trial court granted summary judgment to appellee.
Georgia precedent establishes that
when an insured is authorized by the insurance policy to change the beneficiary during his life, and the insured dies without having exercised the authority, the named beneficiary has a vested interest in the proceeds of the policy. If, however, the insured has done substantially all that is required of him, or all that he is able to do, to effect a change of beneficiary, and all that remains to be done is ministerial action of the insurer, the change will take effect though the details are not completed before the death of the insured. Some affirmative act, however, on the part of the member to change the beneficiary is required; his mere intention will not suffice to work a change of beneficiary. . . . Maxwell v. Britt, 171 Ga.App. 230, 231(2), 319 S.E.2d 88 (1984); see also Mitchell v. Mitchell, 126 Ga.App. 664, 191 S.E.2d 587 (1972) (full concurrence as to this issue).
Hinkle v. Woolever, 249 Ga.App. 249, 251-252, 547 S.E.2d 782 (2001). See also Faircloth v. Coleman, 211 Ga. 356, 359-361, 86 S.E.2d 107 (1955); Lake v. Young Harris Alumni Foundation, 283 Ga.App. 409, 410(1), 641 S.E.2d 628 (2007).[3]
We conclude that appellants failed to present competent evidence showing that Evans substantially complied with the terms of the Combined policy concerning a change in beneficiary. Hearsay cannot be considered in support of a motion for summary judgment. Harris-Jackson v. City of Cochran, 287 Ga.App. 722, 724, 652 S.E.2d 607 (2007). We review a trial court's conclusion that certain evidence is hearsay and that no exception to the hearsay rule applies for an abuse of discretion. Crawford v. Dammann, 277 Ga.App. 442, 448(2), 626 S.E.2d 632 (2006).
Here, the Combined policy authorized Evans to change the beneficiary during his lifetime "by giving Combined written notice satisfactory to Combined which is received by Combined at its home office during the [i]nsured's lifetime." Combined claimed that it had not received any notice from Evans to change the beneficiary. In an effort to show substantial compliance by Evans, Mrs. Bruce's affidavit attested that Evans showed her a letter he had written requesting a beneficiary change for the Combined policy and told her that he mailed it before he died.
Mrs. Bruce's statement in her affidavit that Evans told her that he mailed the letter is clearly hearsay and thus was inadmissible unless an exception to the hearsay rule applied. See OCGA § 24-3-1(a); Hardee's Food Systems v. Green, 232 Ga.App. 864, *695 866(1), 502 S.E.2d 738 (1998). Appellants have failed to point to any exception that would apply in this context, and we have found none. It follows that appellants failed to create a genuine issue of material fact over whether Evans did substantially all that he could do to effect a change of beneficiary. See Lake, 283 Ga.App. at 410-412(1), 641 S.E.2d 628. The trial court therefore did not err in granting summary judgment in favor of appellee.
Judgment affirmed.
BLACKBURN, P.J., and RUFFIN, J., concur.
NOTES
[1] Appellants are Jeffery T. Stanton, Jr., temporary administrator of the estate of Charles R. Evans, Sr., Charles R. Evans, Jr., Eva Elizabeth Stanton, and Ana Marie Evans.
[2] Appellee is Barbara Connie Fisher, formerly Connie Evans as named in the beneficiary designation.
[3] Appellants contend that the Lake decision is not controlling authority since it was not an interpleader action as in the instant case. Notwithstanding appellants' argument, Lake sets forth and applies the same established rule of law, but reaches a different outcome based upon the facts presented in that case. See Lake, 283 Ga.App. at 410-412(1), 641 S.E.2d 628. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335006/ | 659 S.E.2d 775 (2008)
GARIBAY
v.
The STATE.
No. A08A0131.
Court of Appeals of Georgia.
March 19, 2008.
*777 Jesus Garibay, pro se.
David McDade, District Attorney, Hilary S. Leland, Assistant District Attorney, for appellee.
ELLINGTON, Judge.
A Douglas County jury found Jesus Garibay guilty of armed robbery, OCGA § 16-8-41; aggravated assault, OCGA § 16-5-21; theft by receiving (motor vehicle), OCGA § 16-8-7; two counts of possession of a firearm during the commission of a crime, OCGA § 16-11-106; reckless driving, OCGA § 40-6-390; and fleeing or attempting to elude a police officer, OCGA § 40-6-395. We affirmed his convictions and sentence on direct appeal in Garibay v. State, 275 Ga. App. 170, 620 S.E.2d 424 (2005). Two years later, Garibay filed in the trial court a "Motion to Correct Illegal and Void Sentence," arguing that certain offenses of which he was convicted were included as a matter of fact in other offenses and, therefore, that his sentences as to the included offenses are void. The trial court denied the motion, and Garibay appeals.
1. It is the duty of this Court in all instances to inquire into our jurisdiction. Segura v. State, 280 Ga.App. 685, 686(1), 634 S.E.2d 858 (2006). Ordinarily, our determination on direct appeal of a criminal judgment is res judicata, and a criminal defendant is not entitled to another bite at the apple by way of a second appeal. Jackson v. State, 273 Ga. 320, 540 S.E.2d 612 (2001); Stirling v. State, 199 Ga.App. 877, 406 S.E.2d 282 (1991). A sentence that is void for any reason, however, is a "mere nullity" and may be vacated at any time in any court "where it becomes material to the interest of the parties to consider it." (Citation and punctuation omitted.) Curtis v. State, 275 Ga. 576, 578(1), 571 S.E.2d 376 (2002). "[A] sentence is void if the court imposes punishment that the law does not allow." (Citation and punctuation omitted.) Id. Specifically, "[t]he judgment of conviction and the sentence imposed for offenses included as a matter of fact or law in another offense arising out of the same facts for which the defendant has been found guilty and been sentenced" are void. Id. at 577(1), 571 S.E.2d 376. This is because under Georgia law the issue of included offenses is "a matter of statutory double jeopardy." Id. See OCGA § 16-1-7 (barring successive prosecutions and multiple convictions for the same conduct). Finally, the denial of a motion to correct a void sentence is directly appealable. Williams v. State, 271 Ga. 686, 689(1), 523 S.E.2d 857 (1999). For these reasons, we have jurisdiction over Garibay's appeal.
2. Garibay contends that the offense of armed robbery included the offense of aggravated assault as a matter of fact. As a result, Garibay contends, the trial court should have merged the aggravated assault, and the sentence thereon must be vacated.
"The important question" in determining whether closely related offenses may be prosecuted and punished separately
is not the number of acts involved, or whether the crimes have overlapping elements, but whether, looking at the evidence required to prove each crime, one of the crimes was established by proof of the same or less than all the facts required to establish the commission of the other crime charged. If one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge.
(Citations and punctuation omitted.) Garza v. State, 285 Ga.App. 902, 906(5), 648 S.E.2d 84 (2007). "Aggravated assault is not a lesser included offense of armed robbery as a matter of law, and the two offenses rarely merge as a matter of fact." (Citation and punctuation omitted.) Bunkley v. State, 278 Ga.App. 450, 455(2), 629 S.E.2d 112 (2006).
Count 1 of the indictment charged that Garibay and his co-defendants committed armed robbery "by use of an offensive weapon, *778 to-wit: a handgun" with the intent to commit a theft. Count 2 charged him and his co-defendants with unlawfully making an assault upon the person of the victim "with a deadly weapon, to-wit: a handgun." The evidence at trial showed that the offense of armed robbery was complete after Garibay laid a handgun on the counter in the convenience store and demanded that the victim open the register and Garibay's co-defendant took money from the first register. Garibay v. State, 275 Ga.App. at 171, 620 S.E.2d 424. Garibay committed a separate aggravated assault when he struck the victim in the head with the gun. Id. As separate facts were used to prove each crime, the trial court did not err by failing to merge the offenses. Bunkley v. State, 278 Ga.App. at 456(2), 629 S.E.2d 112; Lucas v. State, 197 Ga.App. 347, 348(2), 398 S.E.2d 417 (1990).
3. Garibay contends that the trial court erred in not merging the offenses of armed robbery and two counts of possession of a firearm during the commission of a crime because the same evidence was used to prove both offenses. The two crimes, however, do not merge as a matter of law.
There is express legislative intent to impose double punishment for conduct which violates both OCGA § 16-11-106 and other felony statutes. OCGA § 16-11-106(e) states that "Any crime committed in violation of subsections (b) and (c) of this Code section shall be considered a separate offense" from the offense of possession of a firearm during the commission of any of said crimes. The crimes encompassed by the broad language of OCGA § 16-11-106(b) include offenses such as aggravated assault, armed robbery, kidnapping, and burglary. See generally OCGA § 16-11-106(b)(1)-(3).
(Citations and punctuation omitted.) Golden v. State, 233 Ga.App. 703, 705(2)(c), 505 S.E.2d 242 (1998). Therefore, Garibay's contention that the two counts of possession of a firearm during the commission of a crime were lesser included offenses of armed robbery is without merit.
4. Garibay contends that the trial court erred in not merging the offenses of armed robbery, theft by receiving (automobile), fleeing or attempting to elude a police officer, and reckless driving. Although the offenses related to the getaway car were part of the same criminal episode,[1] the essential elements of each offense are completely separate and distinct.[2] The State relied on different sets of facts to prove each crime. The trial court did not err by failing to merge these offenses.
Appeal affirmed.
BLACKBURN, P.J., and MILLER, J., concur.
NOTES
[1] See Garibay v. State, 275 Ga.App. at 171-172, 620 S.E.2d 424.
[2] OCGA §§ 16-8-41(a) ("A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon[.]"); 16-8-7(a) ("A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner."); 40-6-390(a) ("Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving."); 40-6-395(a) ("It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335007/ | 377 S.C. 124 (2008)
659 S.E.2d 167
BRENCO, a General Partnership, Respondent,
v.
SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION, Petitioner.
No. 26461.
Supreme Court of South Carolina.
Heard February 5, 2008.
Decided March 24, 2008.
*125 John B. McCutcheon, Jr., Mary Ruth M. Baxter, and Arrigo P. Carotti, all of McCutcheon, McCutcheon & Baxter, of Conway, for Petitioner.
Howell V. Bellamy, Jr., and Douglas M. Zayicek, both of Bellamy, Rutenberg, Copeland, Epps, Gravely & Bowers, PA, of Myrtle Beach, for Respondent.
*126 PER CURIAM:
Brenco (respondent) brought suit against the Department of Transportation (petitioner) relating to a deed for the sale of a portion of its property along Highway 501 in Horry County, as well as for inverse condemnation. The master-in-equity found in favor of petitioner with respect to respondent's causes of action for rescission of the deed due to mutual mistake, rescission due to unilateral mistake, negligent misrepresentation, and declaratory judgment. The master took respondent's inverse condemnation claim under advisement but later ruled in favor of petitioner.
The Court of Appeals affirmed the master's ruling on the causes of action related to the deed but reversed the master's decision not to reopen the case and remanded for additional testimony as to damages stemming from inverse condemnation. Brenco v. S.C. Dept. of Transp., 363 S.C. 136, 609 S.E.2d 531 (Ct.App.2005). We granted petitioner's request for certiorari review and now reverse.
FACTS
Respondent owns property located along Highway 501 in Horry County. The property formerly served as the location of a Brendle's store. In 1998, respondent sold to petitioner, in lieu of condemnation, a small portion of respondent's parking lot in order to build a frontage road as part of an ongoing plan to renovate and widen Highway 501. The negotiations before execution of the deed and the deed itself referenced aspects of petitioner's 1993 plans for the Highway 501 project. As a result of this conveyance, respondent lost direct access to Highway 501 but retained ingress and egress to the frontage road.
The final project was completed pursuant to updated plans drafted by petitioner in 2000not the 1993 plans referenced in the deed. As part of the change in plans, petitioner also elevated Highway 501 twenty-five feet[1] and reconfigured exit ramps in close proximity to respondent's property in both the eastbound and westbound directions on Highway 501.
*127 At trial, the main thrust of respondent's case centered on its cause of action for rescission of the deed. Specifically, respondent alleged petitioner had not been forthcoming during negotiations, and respondent claimed it did not know it would lose direct access to Highway 501. Respondent also argued that petitioner knew the grade of Highway 501 would eventually be elevated but did not disclose that information to respondent before delivery of the deed. Respondent's witnesses who testified as to damages focused on a comparison of the values of the entire property before the 1998 conveyance and the property after Highway 501 was completed pursuant to the 2000 plans.
After ruling on the deed issues, the master advised the parties he was struggling with the issue of damages relating to the inverse condemnation claim. Respondent thereafter moved to reopen the case for the taking of additional testimony as to potential damages stemming from inverse condemnation. The master denied respondent's motion to reopen the case and found in favor of petitioner on the inverse condemnation cause of action.
ISSUE
Did the Court of Appeals err in finding the master-in-equity abused his discretion by refusing to reopen the case for additional evidence regarding respondent's purported damages due to inverse condemnation?
ANALYSIS
The decision whether to reopen a record for additional evidence is within the trial court's sound discretion and will not be disturbed on appeal absent an abuse of that discretion. Wright v. Strickland, 306 S.C. 187, 188, 410 S.E.2d 596, 597 (Ct.App.1991). The trial judge is endowed with considerable latitude and discretion in allowing a party to reopen a case. Spinx Oil Co., Inc. v. Fed. Mut. Ins. Co., 310 S.C. 477, 482, 427 S.E.2d 649, 651 (1993), overruled on other grounds, Joe Harden Builders, Inc. v. Aetna Cas. and Sur. Co., 326 S.C. 231, 486 S.E.2d 89 (1997).
*128 The Court of Appeals relied on Wright in reversing the master. In Wright, the Court of Appeals affirmed a trial judge's refusal to reopen the record where the moving party did not proffer any testimony or show that the evidence could make any difference to the outcome of the case. Wright, 306 S.C. at 188, 410 S.E.2d at 597. The Court of Appeals distinguished Wright from the instant case by noting that respondent attempted to proffer testimony[2] and that the additional testimony would have helped the master. The Court of Appeals also considered that respondent did not learn it needed to establish damages in a different fashion, i.e. apart from damages calculated for the deed claims, until after the master's ruling on the deed issues.
We disagree with the Court of Appeals' reasoning. First, respondent was well aware before trial that petitioner took the position that respondent could not prove damages stemming from the elevation of Highway 501 and the road reconfiguration. Petitioner maintained this view throughout trial and provided expert testimony on the precise issue. Respondent had ample opportunity to present testimony and evidence regarding inverse condemnation damages at trial, but it instead decided to present evidence of damages as if the deed would be rescinded and the property would be valued as it existed prior to any condemnation proceeding. The master did not abuse his discretion by refusing to allow respondent a second opportunity to present its inverse condemnation case after it failed on its other claims. See Owens v. S.C. State Hwy. Dept., 239 S.C. 44, 54, 121 S.E.2d 240, 245 (1961) (landowner has the burden of proving its damages for a taking of its property, whether through condemnation proceedings or inverse condemnation).
The Court of Appeals' citation of Wright in its reversal of the master may be read to imply that a trial judge may abuse his discretion by refusing to reopen the record simply because additional testimony is proffered and would make any difference to the outcome of the case. This is not the proper standard for reviewing a potential abuse of discretion in *129 regard to post-trial motions to reopen a record. See Spinx, supra (no abuse of discretion in declining to reopen the record when party could have provided same evidence at trial). Accordingly, the Court of Appeals erred in remanding the case to the master for the taking of additional testimony.[3]
CONCLUSION
Notwithstanding that after Hardin no inverse condemnation taking has occurred, we hold that the master did not abuse his discretion in refusing to reopen the case. The Court of Appeals opinion is
REVERSED.
TOAL, C.J., MOORE, WALLER, PLEICONES, JJ., and Acting Justice J. MICHELLE CHILDS, concur.
NOTES
[1] Previously, Highway 501 was twenty-two feet above sea level. The grade elevation brought the highway to a total height of forty-seven feet above sea level.
[2] Respondent offered to proffer testimony at the hearing that addressed respondent's motion for reconsideration of the order disposing of the inverse condemnation claim.
[3] Furthermore, in light of our decision in Hardin v. S.C. Dept. of Transp., 371 S.C. 598, 641 S.E.2d 437 (2007), petitioner's actions in this case were not a taking by inverse condemnation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335012/ | 659 S.E.2d 398 (2008)
BUCKLER et al.
v.
DeKALB COUNTY.
Druid Hills Civic Association, Inc. et al.
v.
DeKalb County.
Nos. A07A2454, A07A2455.
Court of Appeals of Georgia.
March 7, 2008.
*399 Linda I. Dunlavy, for appellants (case no. A07A2454).
Robert H. Benfield Jr., Atlanta, for appellants (case no. A07A2455).
Morriss, Lober & Dobson, Michael J. Lober, Roswell, Melanie F. Wilson, Duane D. Pritchett, for appellee.
ANDREWS, Presiding Judge.
H. Robert Buckler and Tony McCullar (the Petitioners) petitioned the DeKalb County Superior Court pursuant to OCGA § 5-4-1 et seq. for writ of certiorari to review the decision of the DeKalb County Zoning Board of Appeals denying their application for zoning variances for a residential development located in the Druid Hills area in DeKalb County. In Case No. A07A2454, the Petitioners appeal from the superior court's order dismissing their petition. In Case No. A07A2455, the Druid Hills Civic Association, Inc., along with Chris Wagner and Christine Mitchell as neighboring property owners in Druid Hills, cross-appeal from the superior court's orders denying their motions brought pursuant to OCGA § 9-11-24 to intervene in the proceedings as a matter of right or permissively. For the reasons stated below, we reverse the dismissal of the petition in Case No. A07A2454. In Case No. A07A2455, we affirm the superior's court's denial of the motions to intervene as a matter of right pursuant to OCGA § 9-11-24(a), vacate the court's denial of applications for permissive intervention pursuant to OCGA § 9-11-24(b), and remand the case for the court to address the claims for permissive intervention.
1. At issue in the Petitioners's appeal in Case No. A07A2454 is whether the renewal provisions of OCGA § 9-2-61 (a) entitled them to dismiss their timely filed petition for writ of certiorari, then renew the petition after the expiration of the applicable limitation period. Pursuant to OCGA § 9-2-61(a), a case commenced within the applicable limitation period may be dismissed and recommenced within six months even if the limitation period has expired. The privilege of dismissal and renewal under OCGA § 9-2-61 does not apply to a case dismissed on the merits or to a case which was void when dismissed, but it does apply if the dismissed case was merely voidable. Hobbs v. Arthur, 264 Ga. 359, 360, 444 S.E.2d 322 (1994). "A suit is also void and incapable of renewal under OCGA § 9-2-61(a) if there has been a judicial determination that dismissal is authorized . . . [but] unless and until the trial court enters an order dismissing a valid action, it is merely voidable and not void." Id. It is settled that the renewal provisions of OCGA § 9-2-61 apply to certiorari cases brought pursuant to OCGA § 5-4-1 et seq. Bass v. City of Milledgeville, 121 Ga. 151, 152, 48 S.E. 919 (1904); Schaffer v. City of Atlanta, 151 Ga.App. 1, 2-3, 258 S.E.2d 674 (1979), rev'd on other grounds, City of Atlanta v. Schaffer, 245 Ga. 164, 264 S.E.2d 6 (1980). Certiorari proceedings are considered *400 "special statutory proceedings" subject to the provisions of the 1966 Civil Practice Act, except to the extent that specific rules of practice and procedure conflict with the Act. Hudson v. Watkins, 225 Ga.App. 455, 456, 484 S.E.2d 24 (1997).
The Petitioners filed their first petition for writ of certiorari on June 8, 2005, within the 30-day limitation period of OCGA § 5-4-6(a). Pursuant to OCGA § 5-4-5, the petition was required to be filed with a bond approved by the judicial officer who heard the case, unless the petition was filed with an affidavit from the Petitioners stating that they were indigent and unable to pay costs or give security. Dykes v. Twiggs County, 115 Ga. 698, 42 S.E. 36 (1902); Duty Free Air & Ship Supply v. Atlanta Duty Free, 275 Ga.App. 381, 620 S.E.2d 616 (2005). The Petitioners did not file an affidavit of indigency with the petition, so the petition was required to be filed with a bond approved by a Zoning Board officer who heard the variance application case in the exercise of the Board's judicial powers. OCGA § 5-4-5; Dykes, 115 Ga. at 699-701, 42 S.E. 36; Jackson v. Spalding County, 265 Ga. 792, 462 S.E.2d 361 (1995) (board of appeals exercises judicial powers when deciding a variance request).
Although the Petitioners filed with the petition a document purporting to be the bond required by OCGA § 5-4-5, it was not approved by an officer who heard the variance request, so it was not a valid bond and did not satisfy the requirement for a bond accompanying the petition. Dykes, 115 Ga. at 699-701, 42 S.E. 36; Duty Free, 275 Ga.App. at 383, 620 S.E.2d 616. Prior to the 1961 enactment of OCGA § 5-4-10, "certiorari proceedings were not amendable and the failure to file a proper bond resulted in the dismissal of the case because the petition was in such circumstances absolutely void." (Citation omitted.) Scott v. Oxford, 105 Ga.App. 301, 303, 124 S.E.2d 420 (1962). Under OCGA § 5-4-10, the Petitioners had the right to amend the certiorari proceedings as to form or substance at any stage, including the right to amend by substituting a valid bond for a void bond or no bond at all. Nevertheless, without amending the petition to substitute or give a valid bond, the Petitioners voluntarily dismissed their first petition on August 17, 2005. On August 22, 2005, after the 30-day limitation period in OCGA § 5-4-6(a) had expired, the Petitioners filed a second petition in the DeKalb County Superior Court for writ of certiorari seeking review of the same decision of the Zoning Board denying the same zoning variances. The Petitioners alleged that the second petition was timely filed after the expiration of the limitation period because it was filed as a renewal of the second petition under the renewal provisions of OCGA § 9-2-61(a). The second petition was also filed without a valid bond, but the Petitioners amended the petition pursuant to OCGA § 5-4-10 to substitute a valid bond.
DeKalb County, the "opposite party" in the certiorari petition under OCGA § 5-4-6(b), moved for dismissal of the second petition on the basis that it was not timely filed within the 30-day limitation period in OCGA § 5-4-6(a), and that the second petition was not a renewal of the first petition under OCGA § 9-2-61 because the first petition was void when it was dismissed. The superior court erred by granting this motion and dismissing the second petition. Because the lack of an approved bond with the first petition was a defect correctable by amendment, for purposes of the renewal provisions of OCGA § 9-2-61(a), the first petition was a valid action which was merely voidable and not void. OCGA § 5-4-10; Hobbs, 264 Ga. at 360, 444 S.E.2d 322; Motorcycle Stuff v. Bryant, 182 Ga.App. 554, 555, 356 S.E.2d 521 (1987).[1] There being no judicial determination that dismissal was required for lack of an approved bond, the Petitioners were entitled to voluntarily dismiss the first petition and rely on OCGA § 9-2-61 (a) as authority to file the second petition after expiration of *401 the 30-day limitation period. Hobbs, 264 Ga. at 360, 444 S.E.2d 322.
2. In Case No. A07A2455, the Druid Hills Civic Association, Inc. and Druid Hills property owners, Chris Wagner and Christine Mitchell (collectively referred to as the Applicants), claim the superior court erred by denying their applications to intervene in the certiorari proceedings as a matter of right pursuant to OCGA § 9-11-24(a)(2), or permissively pursuant to OCGA § 9-11-24(b)(2).[2]
Upon timely application, anyone shall be permitted to intervene in an action as a matter of right pursuant to OCGA § 9-11-24(a)(2)
[w]hen the applicant claims an interest relating to the property or transaction which is the subject matter 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.
Thus, "[t]his section requires a three-fold showing of (1) interest, (2) potential impairment, and (3) inadequate representation." DeKalb County v. Post Properties, 245 Ga. 214, 219, 263 S.E.2d 905 (1980). Under the permissive intervention provisions of OCGA § 9-11-24(b)(2), anyone upon timely application may be permitted to intervene in an action "[w]hen an applicant's claim or defense and the main action have a question of law or fact in common." When the court exercises its discretion as to permissive intervention, section 9-11-24(b) further provides that "the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."
The Applicants filed applications for intervention in November 2005 and March 2007, both of which sought to intervene as a matter of right pursuant to OCGA § 9-11-24(a)(2), or permissively pursuant to OCGA § 9-11-24(b)(2). In denying the first application, the superior court held in effect that, even assuming the Applicants satisfied the first two requirements for intervention as a matter of right under OCGA § 9-11-24(a)(2) interest and potential impairment they failed to satisfy the third requirement by showing that their interests were inadequately represented by existing parties. The court's order denying the first application did not address the Applicants's claim for permissive intervention under OCGA § 9-11-24(b)(2). The court's subsequent order denying the second application for intervention simply noted that it had already ruled and reaffirmed the prior order.
In support of the intervention applications, the Applicants asserted that they have a strong interest in upholding the Zoning Board's denial of the application for zoning variances for the subject property, because said variances, if granted, would be contrary to applicable zoning ordinances, and would adversely affect the character of the neighborhood. They claimed that intervention is necessary to ensure that the certiorari proceedings are vigorously defended, because DeKalb County is not sufficiently concerned with upholding the decisions of its Zoning Board; has failed to assert numerous defenses that they believe are available and meritorious, and has stipulated to a record in the certiorari proceedings that fails to include important evidence submitted by the Applicants to the Zoning Board.
There is no basis for concluding that DeKalb County has abandoned any defenses in the certiorari proceedings, or that the County lacks the motivation to represent its own interests and the Applicants's interests in upholding the decision of the Zoning Board. In fact, the County filed a motion to dismiss the certiorari proceedings, which was granted by the superior court and reversed by this Court in Case No. A07A2454, supra. Even if the County did not assert other defenses before it obtained the dismissal, nothing prevents it from doing so when the case is returned to the superior court. As to important evidence the Applicants claim was omitted by stipulation from the record, the *402 "evidence" consists primarily of argument made by the Applicants to the Zoning Board that the application for variances violated the zoning ordinances and should be denied. There is no evidence that DeKalb County has stipulated to omission of evidence from the record necessary to address the issues presented in the certiorari proceedings.
The issue of inadequacy of representation presents a question of fact for the court, and we find no error in the superior court's finding that the Applicants failed to show that their interests were inadequately represented. Southwest Ga. Production Credit Assn. v. Wainwright, 241 Ga. 355, 356, 245 S.E.2d 306 (1978). For members of the public to intervene in an action where a governmental entity represents the public interest, there must be "a very strong showing of inadequate representation." (Citation and punctuation omitted.) Post Properties, 245 Ga. at 219, 263 S.E.2d 905. Moreover, "where the interest of the intervenor is identical to that of a governmental body or officer who is a named party, it will be assumed that the intervenor's interests are adequately represented, absent a concrete showing of circumstances in the particular case that make the representation inadequate." (Citation, punctuation and footnote omitted). Id. Here, the Applicants's interests in seeing that the Zoning Board's denial of the application for zoning variances is upheld does not differ from the County's interest in the certiorari proceedings to seek affirmance of the Zoning Board's decision. Because the Applicants failed to make the necessary showing that their interests are inadequately represented in the certiorari proceedings, the superior court did not err by denying their applications to intervene in the proceedings as a matter of right pursuant to OCGA § 9-11-24(a)(2).
As to the claim that the superior court erred by denying the applications to permissively intervene in the certiorari proceedings pursuant to OCGA § 9-11-24(b)(2), a claim for permissive intervention addresses itself to the sound discretion of the court, and we will not reverse the court's decision absent abuse of discretion. Shoemake v. Woodland Equities, 252 Ga. 389, 394, 313 S.E.2d 689 (1984). Because the court's orders denying the applications for intervention did not address this claim, we are unable to determine whether the court properly exercised its discretion. Accordingly, to the extent the court's orders denied applications for permissive intervention, the orders are vacated, and the case is remanded for the court to address these claims under OCGA § 9-11-24(b)(2) in accordance with this opinion.
Judgment reversed in Case No. A07A2454. Judgment affirmed in part, vacated in part, and case remanded in Case No. A07A2455.
ELLINGTON and ADAMS, JJ., concur.
NOTES
[1] Duty Free, 275 Ga.App. at 383, 620 S.E.2d 616, which refers to a petition for certiorari without a valid bond as void, does not hold to the contrary. That case did not deal with the renewal provisions of OCGA § 9-2-61(a). We held that the superior court should have granted a motion to dismiss a petition for certiorari as void because no valid bond was filed with the petition or supplied by amendment. Id. at 383-384, 620 S.E.2d 616.
[2] We do not deal here with intervention as a matter of right under a statute which confers an unconditional right to intervene (OCGA § 9-11-24(a)(1)), or permissive intervention under a statute which confers a conditional right to intervene. OCGA § 9-11-24(b)(1). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335031/ | 659 S.E.2d 870 (2008)
HARRIS et al.
v.
The STATE.
No. A07A2458.
Court of Appeals of Georgia.
March 24, 2008.
William D. Hall, Robert R. McLendon IV, Blakely, for appellants.
Joseph K. Mulholland, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.
ELLINGTON, Judge.
We granted the interlocutory application of Ashley Harris and Caroline Jenkins to consider whether the trial court erred when it overruled their demurrer to their indictment in Decatur County for harboring an unregistered sex offender. We conclude that the indictment was indeed defective, and we therefore reverse.
OCGA § 16-6-25(b) provides that
Any person who knows or reasonably believes that a sexual offender, as defined in Code Section 42-1-12 [concerning the sexual offender registry], is not complying, or has not complied, with the requirements of Code Section 42-1-12 and who, with the *871 intent to assist such sexual offender in eluding a law enforcement unit that is seeking such sexual offender to question him or her about, or to arrest him or her for, his or her noncompliance with the requirements of Code Section 42-1-12:
(1) Harbors, attempts to harbor, or assists another person in harboring or attempting to harbor such sexual offender;
(2) Conceals, attempts to conceal, or assists another person in concealing or attempting to conceal such sexual offender; or
(3) Provides information to the law enforcement unit regarding such sexual offender which the person knows to be false information
commits a felony and shall be punished by imprisonment for not less than five nor more than 20 years.
(Emphasis supplied.)
The indictment at issue here charged Harris and Jenkins with
the offense of HARBORING AND CONCEALING SEXUAL OFFENDER for that the said accused . . . on the 4th day of November, 2006, unlawfully, did then and there, harbor and conceal Anthony Dewayne Harris, a known sex offender, by providing information to Deputy Robert Griffin, a law enforcement officer, regarding said sexual offender which they knew to be false[.]
Harris and Jenkins contend that the indictment fails to allege that they knew or reasonably believed that Anthony Harris was an unregistered sexual offender; that they intended to assist Anthony Harris in eluding police; and that police were seeking Anthony Harris in connection with his noncompliance. We agree with the first of these contentions.
Unless every essential element of a crime is stated in an indictment, it is impossible to ensure that the grand jury found probable cause to indict. Consequently, there can be no conviction for the commission of a crime an essential element of which is not charged in the indictment. If an accused individual can admit to all of the allegations in an indictment and still be not guilty of a crime, then the indictment generally is insufficient and must be declared void.
(Citations and punctuation omitted.) Smith v. Hardrick, 266 Ga. 54, 55(1), 464 S.E.2d 198 (1995); see also State v. Eubanks, 239 Ga. 483, 485, 238 S.E.2d 38 (1977).
Though Harris and Jenkins could well have been charged with hindering the apprehension of "a person whom [they know] or [have] reasonable grounds to believe has committed a felony" under OCGA § 16-10-50, the State chose instead to charge them with providing false information concerning an unregistered sexual offender under OCGA § 16-6-25. The indictment itself, however, alleges only that Anthony Harris was a "known" sex offender, not that he was an unregistered one.
The preamble to the Act passing OCGA § 16-6-25 into law lays out the General Assembly's findings and intentions concerning that statute as follows:
[T]he high level of threat that a sexual predator presents to the public safety, and the long-term effects suffered by victims of sex offenses, provide the state with sufficient justification to implement a strategy that includes:
(1) Incarcerating sexual offenders and maintaining adequate facilities to ensure that decisions to release sexual predators into the community are not made on the basis of inadequate space;
(2) Requiring the registration of sexual offenders, with a requirement that complete and accurate information be maintained and accessible for use by law enforcement authorities, communities, and the public;
(3) Providing for community and public notification concerning the presence of sexual offenders. . . .
The General Assembly further finds that the state has a compelling interest in protecting the public from sexual offenders and in protecting children from predatory sexual activity, and there is sufficient justification for requiring sexual offenders to register and for requiring community and public notification of the presence of sexual offenders. The General Assembly declares *872 that in order to protect the public, it is necessary that the sexual offenders be registered and that members of the community and the public be notified of a sexual offender's presence. . . .
(Emphasis supplied.) Ga. L. 2006, p. 379, § 1. Just as registration is a central component of the General Assembly's "strategy" concerning sexual offenders, a person's knowledge or reasonable belief that a sexual offender "is not complying, or has not complied, with the requirements of [the sexual offender registry Code section]" is an essential element of the new crime of harboring, concealing, or withholding information concerning that sexual offender.
We have long voided indictments on such grounds. In Roberts v. State, 18 Ga.App. 529, 89 S.E. 1055 (1916), an indictment for harboring a felon failed to charge the defendant's knowledge that the person harbored had actually been found guilty of a felony. Id. at 531-532, 89 S.E. 1055; compare Harris v. State, 191 Ga. 243, 251-254(6), 12 S.E.2d 64 (1940) (indictment alleging crime of accessory before the fact need not allege conviction of principal). Today, we void the indictment of Harris and Jenkins because it likewise failed to charge them with an essential element of the offense: the knowledge or reasonable belief that Anthony Harris was an unregistered sexual offender.
We also note that the indictment fails to distinguish between the acts of harboring, concealing, and providing false information concerning an unregistered sexual offender. When a statute designates more than one independent basis for a charge under it, as OCGA § 16-6-25(b) does, an indictment brought under it must specify the basis on which a particular defendant is charged. See, e.g., Smith, 266 Ga. at 55-56(3), 464 S.E.2d 198 (vacating conviction for aggravated assault where indictment failed to allege that defendant used his hands as a deadly weapon or in an attempt to rape, rob, or murder the victim, or that he placed the victim in reasonable fear of violent injury).
Because Harris and Jenkins could admit every allegation of this indictment and still be innocent of violating OCGA § 16-6-25(b), we reverse the trial court's denial of Harris's and Jenkins's demurrer.
Judgment reversed.
ANDREWS, P.J., and ADAMS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335039/ | IN RE: A.B.K.
No. COA07-1082
Court of Appeals of North Carolina.
Filed April 1, 2008
This case not for publication
No brief filed for petitioner-appellee, Wilkes County Department of Social Services.
Tracie M. Jordan for Guardian ad Litem.
Janet K. Ledbetter for respondent-appellant.
TYSON, Judge.
W.K. ("respondent") appeals from an order, which terminated her parental rights to her son, A.B.K. We affirm.
I. Background
The Wilkes County Department of Social Services ("DSS") filed a petition and asserted A.B.K. and his older sister, T.N.B. (collectively, "the children") were neglected juveniles. DSS's petition alleged respondent had left the children alone and failed to make arrangements for their care. DSS took non-secure custody of the children on 9 August 2004. The trial court appointed Kathy Lusk ("Lusk") as the children's guardian ad litem ("GAL") on 10 August 2004. The trial court held subsequent review hearings and the GAL submitted reports to the trial court dated 12 September, 11 October, 17 October, and 28 November 2004. Each GAL report was signed by Geoffrey B. Farmer ("Farmer") as "District Administrator." Lusk also signed the 12 September and 28 November 2004 reports as "GAL Volunteer."
On 22 December 2004, the trial court found that "[r]eturn of the children to the home of a parent is contrary to the welfare of the children given the [respondent's] continued drug problems, the absence of one of the fathers, and the present desires of the other father and his lack of contact with his son." The trial court adjudicated the children to be neglected.
Temporary legal and physical custody of the children was placed with DSS. The GAL program submitted a report dated 21 February 2005 to the trial court on which Farmer printed Lusk's name on the signature line on her behalf and signed his own name as "District Administrator." Another GAL report dated 23 March 2006 was submitted to the trial court by Farmer. The report noted that "[t]here is not a GAL volunteer assigned to this case due to a lack of available volunteers."
After more than two years had elasped, DSS petitioned to terminate respondent's parental rights to A.B.K. on 25 September 2006, based upon the grounds of: (1) neglect; (2) willfully leaving the child in foster care for more than twelve months without showing reasonable progress to alleviate the conditions that led to the child's removal; (3) willful failure to pay a reasonable portion of the child's cost of care; and (4) abandonment. The trial court terminated respondent's parental rights to A.B.K. based upon her neglect and willfully leaving the child in foster care for more than twelve months without showing reasonable progress to allevate the conditions which led to the children's removal. Respondent appeals.
II. Issue
Respondent argues the trial court erred when it failed to appoint a new GAL after Lusk's resignation.
III. Standard of Review
"On appeal, our standard of review for the termination of parental rights is whether the trial court's findings of fact are based upon clear, cogent and convincing evidence and whether the findings support the conclusions of law. The trial court's conclusions of law are reviewable de novo on appeal." In re J.N.S., 180 N.C. App. 573, 575, 637 S.E.2d 914, 915 (2006) (internal quotations omitted).
IV. Appointment of GAL
Respondent contends the trial court failed to comply with N.C. Gen. Stat. §§ 7B-601, -1108 when it failed to appoint a new GAL for A.B.K. after Lusk's resignation. We agree.
N.C. Gen. Stat. § 7B-601(a) (2003) states that when, as in the instant case, "a juvenile is alleged to be . . . neglected, the court shall appoint a [GAL] to represent the juvenile." (Emphasis supplied). This appointment, in turn, "shall terminate when the permanent plan has been achieved for the juvenile and approved by the court," although "[t]he court may reappoint the [GAL] pursuant to a showing of good cause upon motion of any party, including the[GAL], or of the court." N.C. Gen. Stat. § 7B-601(a) (emphasis supplied).
N.C. Gen. Stat. § 7B-601(a) requires that an individual be appointed as GAL and does not provide for an ad hoc substitute GAL supplied by the GAL program. The plain language of N.C. Gen. Stat. § 7B-601(a) distinguishes between a GAL and the GAL program. See N.C. Gen. Stat. § 7B-601(a) (2003). The General Assembly did not define GAL as being synonymous with the GAL "program." See generally N.C. Gen. Stat. § 7B-101 (2003) (providing definitions for abuse, neglect, and dependency proceedings). This distinction is further evidenced by N.C. Gen. Stat. § 7B-601(c) (2003), which authorizes the GAL "to obtain any information or reports, whether or not confidential, that may in the [GAL]'s opinion be relevant to the case." Only the appointed GAL, however, shall have access to such information or reports, because "[t]he confidentiality of the information or reports shall be respected by the [GAL], and no disclosure of any information or reports shall be made to anyone except by order of the court or unless otherwise provided by law." N.C. Gen. Stat. § 7B-601(c) (emphasis supplied).
With the appointment of an individual to serve as a juvenile's GAL, a trial court determines the identity of the person tasked with promoting the juvenile's best interests. Because of such an appointment, a juvenile has not only the GAL seeking to protect his or her best interests, but also the GAL program, which includes: the volunteer GAL, the program's staff, and the program's resources. N.C. Gen. Stat. § 7B-1200 (2005). The GAL and GAL program, however, cannot be one and the same for purposes of N.C. Gen. Stat. § 7B-601(a) and the mandatory appointment of a GAL pursuant to N.C. Gen. Stat. § 7B-601(a) is not satisfied by staff members and administrators of a GAL program acting as substitute or "de facto" guardians. Cf. Cepek v. Cepek, 684 N.W.2d 521, 525 (Minn. Ct. App. 2004) ("Because a [GAL] for the children must be expressly appointed by court order, . . . a court-appointed custody evaluator who is not designated as a [GAL] cannot be a `de facto' [GAL]."); see also In re R.A.H., 171 N.C. App. 427, 430, 614 S.E.2d 382, 384 (2005) ("Pursuant to N.C. Gen. Stat. § 7B-1108(d) and § 7B-601, there should have been a [GAL] investigating and determining the best interests of the child from the first petition alleging neglect . . . through the final determination.").
Here, Lusk was appointed as A.B.K.'s GAL. After a year and a half, Lusk was unable to continue her work and resigned as a volunteer with the program. At that point the trial court should have appointed a new GAL to ensure compliance with the statute. The trial court's failure to appoint a new GAL after Lusk's resignation was error.
V. Failure to Assign Error
In its order, which terminated respondent's parental rights, the trial court found as fact that "Farmer[] is the [GAL] for the child." Respondent failed to object to or assign error to the trial court's finding of fact. The trial court's unchallenged finding that Farmer was A.B.K.'s GAL for the termination hearing is binding upon this Court. See In re A.R.H.B. and C.C.H.L, ___ N.C.App. ___, ___, 651 S.E.2d 247, 251 (2007) ("If unchallenged on appeal, findings of fact are deemed supported by competent evidence and are binding upon this Court." (Quotation omitted)).
The trial court's unchallenged findings of fact are conclusive and binding upon appeal that the trial court complied with N.C. Gen. Stat. § 7B-1108(b). Id. The trial court's order which terminated respondent's parental rights is the only order before us on appeal. Any alleged N.C. Gen. Stat. § 7B-601(a) violation with respect to prior court orders or actions not appealed from may not be used to challenge an otherwise valid termination of parental rights order. See In re J.E., 362 N.C. 168, 655 S.E.2d 831 (2008) (holding an order terminating parental rights should be affirmed when the children were represented by a GAL at the termination hearing but were unrepresented during prior hearings not on direct appeal). Respondent's assignment of error is overruled.
VI. Conclusion
The trial court's failure to appoint a new GAL after Lusk's resignation was error. Respondent failed to assign error to the trial court's finding of fact that Farmer was the GAL for A.B.K. The order terminating respondent's parental rights to A.B.K. is affirmed.
Affirmed.
Judge JACKSON concurs.
Judge GEER concurs by separate opinion.
Report per Rule 30(e).
GEER, Judge, concurring.
I agree with the majority that the trial court erred in failing to formally appoint a new guardian ad litem when Ms. Lusk resigned. I stress, however, that nothing in the majority opinion or any of the authority cited in that opinion precludes a court from appointing an employee of the Guardian ad Litem Program to serve individually as a child's guardian ad litem. Because of the overwhelming number of these cases pending in our district courts, it is likely that volunteers may not always be available, as happened in this case. In those instances, the court may have no choice but to appoint a member of the Guardian ad Litem Program. The problem in this case is that the record does not include any formal appointment of Geoffrey Farmer as the guardian ad litem for A.B.K.
As the majority opinion notes, however, the trial court specifically found in its order terminating respondent's parental rights that "Geoffrey Farmer[] is the Guardian Ad Litem for the child." Thus, based on this unchallenged finding of fact, A.B.K. had a guardian ad litem for the termination of parental rights proceeding. To the extent that respondent is contending that the trial court erred in failing to have a guardian ad litem in place for prior proceedings, that argument is foreclosed by In re J.E., ___ N.C. App. ___, ___, 644 S.E.2d 28, 35 (2007), in which Judge Hunter wrote, in a dissent adopted per curiam by the Supreme Court, 362 N.C. 168, 655 S.E.2d 831 (2008): "[W]hen the trial court fails to appoint a GAL in a prior proceeding not on direct appeal, we will not reverse." For these reasons, I concur in the majority opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263357/ | 142 F.Supp. 845 (1956)
In the Matter of MORRISON-BARNHART MOTORS, Inc., Bankrupt.
No. 70936.
United States District Court N. D. Ohio, Eastern Division.
June 19, 1956.
*846 Donald D. Wick, Archie M. Marks, Cleveland, Ohio, for the Trustee.
Morris R. Blane, Cleveland, Ohio, for the landlords.
Francis J. Talty, Cleveland, Ohio, for the bankrupt.
WEICK, District Judge.
This case comes before the Court on petitions by the bankrupt's landlord and the Trustee in bankruptcy to review the judgment of the Referee in bankruptcy.
The landlord filed with the Trustee in bankruptcy a claim for $480 for use and occupancy of premises by the Receiver and Trustee during the pendency of the bankruptcy proceedings. The premises had, theretofore, been leased by the landlord to the bankrupt by written instrument of lease.
The Trustee in bankruptcy filed with the Referee written objections to the allowance of such claim and a counterclaim in which he sought to recover from the landlord $3,600 previously deposited by the bankrupt with him as security for the performance of the lease, and $700 profit claimed to have been made by the landlord in selling the leased premises for an amount in excess of the option price stipulated in the lease.
The landlord had re-entered the leased premises on or about January 12, 1954 during the pendency of the bankruptcy proceeding and before the expiration of 60 days from the adjudication, during which time the Trustee in bankruptcy had the right under § 70, sub. b, of the Bankruptcy Act, 11 U.S.C.A. § 110, sub. b, to elect to assume or reject the lease. Also during said 60 day period and without the knowledge or consent of the Trustee in bankruptcy or the Referee, the landlord entered into a contract to sell the leased premises.
The Referee in bankruptcy held that he had jurisdiction and proceeded to enter judgment against the landlord for the return of the deposit plus the profit on the sale less deductions for past due rent and sums due from the Trustee for use and occupancy.
In holding that the Bankruptcy Court had summary jurisdiction to determine the conflicting claims to the deposit, the Referee was clearly right.
The money deposited by the bankrupt with the landlord was property belonging to the bankrupt and subject to administration in the bankruptcy proceeding. The landlord held the bankrupt's money as trustee or pledgee to secure the performance of the provisions of the lease. Glidden v. Mechanics' National Bank, 53 Ohio St. 588, 589, 42 N.E. 995, 43 L.R.A. 737. When the bankrupt's obligations under the lease had been fulfilled, the landlord had a clear duty to return the deposit to the bankrupt.
That the Bankruptcy Court has summary jurisdiction to determine the conflicting claims to money deposited by the bankrupt with his lessor to secure performance of the lease was held in the recent decision of In re Muntz T. V. Inc., 7 Cir., 229 F.2d 228.
The case at bar is strengthened by the fact that the landlord had filed a claim for $408 with the Trustee in bankruptcy. He thereby voluntarily submitted to the jurisdiction of the Bankruptcy Court to determine the validity and amount of his claim which necessarily included any set offs or counterclaims existing in favor of the Trustee in bankruptcy. Floro Realty & Investment Co. v. Steem Electric Corp., 8 Cir., 128 F.2d 338; In re California Eastern Airways, D.C., 95 F. Supp. 348; Florance v. Kresge, 4 Cir., 93 F.2d 784; In re Gillespie Tire Co., D.C., 54 F.Supp. 336. Authorities on this point are collected in certificate filed by Referee Friebolin in the case of Park Electric Co., Bankrupt, No. 66897 this Court.
Coming now to the merits of the case, it is the claim of the landlord that the Trustee in bankruptcy has no interest in the lease because of his failure to assume or reject the lease within a period *847 of 60 days after the adjudication as provided by § 70, sub. b of the Bankruptcy Act, Title 11 U.S.C.A. § 110, sub. b.
Burns Trading Co. v. Welborn, 10 Cir., 81 F.2d 691, 106 A.L.R. 285, certiorari denied 298 U.S. 672, 56 S.Ct. 936, 80 L. Ed. 1394; In re Northern Indiana Oil Co., 7 Cir., 180 F.2d 669.
Our case is different because here during the 60 day period provided by § 70, sub. b of the Bankruptcy Act, the landlord without the knowledge or consent of the Bankruptcy Court re-entered the leased premises and contracted the sale thereof.
The Trustee was not given an opportunity to assume or reject the lease. In fact he had no knowledge either of the lease or of the sale.
In Suter v. Farmers' Fertilizer Co., 100 Ohio St. 403, at page 411, 126 N.E. 304, at page 306, the Supreme Court held: "Even where the liability depends upon a condition precedent, one cannot avoid his liability by making the performance of the condition precedent impossible, or by preventing it."
The re-entry by the landlord operated as a surrender of the lease and the bankrupt was relieved from liability for rent accruing thereafter.
This was held by the Court of Appeals in Lamson Consol. Store Service Co. v. Bowland, 6 Cir., 114 F. 639, where the Court said: "Resumption of possession by the lessor of the thing leased operates as a surrender of the lease, and puts an end to the lessee's liability for future installments of rent, unless otherwise plainly provided."
In the case at bar, the Referee ordered payment of the rental in arrears and for use and occupancy during the bankruptcy proceedings out of the deposit of $3,600.
The landlord has, therefore, been paid in full and made whole for all rentals accruing up to the date of re-entry of possession. He has no further claim. No rents could accrue to the landlord thereafter as he sold the premises and, in any event, the bankrupt would not be liable therefor. To permit the landlord to keep the deposit after all of his claims under the lease have been fully satisfied would be unconscionable.
The landlord is, therefore, in the position of holding $2,600 of the bankrupt's money and the Referee very properly entered judgment against him therefor including interest.
In 32 American Jurisprudence 452, § 547 the author states the rule governing deposits to secure performance of leases: "He (tenant) is entitled to the balance remaining after the claims of the landlord have been satisfied."
In re Barnet, 2 Cir., 12 F.2d 73; See: authorities in notes in 22 A.L.R. 1302; 45 A.L.R. 717; 106 A.L.R. 292-318; Nash v. Bailey, Fla., 58 So.2d 680, Kaplan v. Katz, Fla., 58 So.2d 853.
Since the lease was terminated on January 12, 1954 by the re-entry of possession of the landlord, the Trustee in bankruptcy would not be entitled to the profit of $700 claimed to have been made by the landlord in selling the property. The option was extinguished. Furthermore, there was no profit because included in the sale of the real estate was certain personal property which the landlord had acquired from the Trustee in bankruptcy at a cost of $840.
The Referee was also right in disallowing the claim of the landlord for $250, representing the cost of repairs to the outside of the building which the lease required the landlord to make.
The points raised by the petition for review of the Trustee in bankruptcy related to the allowance by the Referee of the claims for rent and use and occupation which the Court has found were properly allowed.
The judgment of the Referee will, therefore, be modified so as to exclude and disallow the claim of the Trustee in bankruptcy of $700 plus interest for profit in connection with the sale, and as modified will be affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1334979/ | 659 S.E.2d 646 (2008)
TAUL
v.
The STATE.
No. A07A2257.
Court of Appeals of Georgia.
February 29, 2008.
Reconsideration Denied March 14, 2008.
*647 Bernadette C. Crucilla, Macon, for appellant.
Howard Z. Simms, District Attorney, Dorothy V. Hull, Nancy S. Malcor, Assistant District Attorneys, for appellee.
BERNES, Judge.
A Bibb County jury convicted Donald Jeremy Taul of aggravated assault on a peace officer, fleeing or attempting to elude police, obstruction of an officer, and driving with a suspended or revoked license. Taul appeals, contending that the trial court erred in failing to dismiss the aggravated assault charge; in failing to grant a directed verdict of acquittal on the aggravated assault charge; and in failing to instruct the jury on the defenses of justification and the right to resist an unlawful detention. He also contends that his trial counsel rendered ineffective assistance. For the reasons that follow, we affirm.
Viewed in the light most favorable to the verdict,[1] the evidence at trial showed that Bibb County sheriff's deputies were conducting a roadblock when Taul drove his car containing three passengers toward the roadblock, traveling at an approximate speed of 40 miles per hour. According to two of Taul's passengers, the roadblock was clearly visible in the roadway, but as they approached, Taul "pretty much freaked out and said he wasn't stopping."[2] Taul accelerated his car as he approached the roadblock while the deputies yelled for him to stop. The *648 victim, a deputy who was assisting with the roadblock, stepped into the roadway, raised his arms, and joined the other deputies in ordering Taul to stop. Taul did not comply nor slow down, but instead drove straight through the roadblock. The deputy had to "jump[] back out of the lane" to avoid "[b]eing struck by [Taul's] vehicle and receiving serious injuries."
The deputies pursued Taul's vehicle in a high-speed chase. The chase ended when Taul loss control of his vehicle and the vehicle flipped over onto its top. Taul and his three passengers crawled out of the vehicle. Taul fled on foot, but was identified by the passengers as the driver of the vehicle. Taul was later arrested.
At trial, Taul stipulated that he was guilty of obstruction and driving with a suspended license. The jury also found Taul guilty of aggravated assault and fleeing or attempting to elude police.
1. Taul contends that the trial court erred by denying his pretrial motion to dismiss the aggravated assault charge. He argues that the roadblock was unconstitutional, and that he had a right to resist the unlawful detention. Notwithstanding Taul's claim to the contrary, he did not move to dismiss the aggravated assault prior to trial. Rather, he filed a motion to suppress evidence based on the alleged illegality of the roadblock. But since the undisputed evidence shows that Taul did not stop at the roadblock, he was not unlawfully detained and therefore, had no standing to challenge its constitutionality. See King v. State, 281 Ga.App. 325, 326, 635 S.E.2d 895 (2006).
Moreover, "[t]his Court will not find that the determination of whether there is a `legal' basis for a [roadblock or] stop belongs to the driver, thereby giving him the right to ignore blue lights and a siren if he determines he is being stopped illegally." Eichelberger v. State, 252 Ga.App. 801, 804(2), 557 S.E.2d 439 (2001). "Challenges to even unconstitutional police actions must be made in the courts, not on the street." (Punctuation and footnote omitted.) Strickland v. State, 265 Ga.App. 533, 539, 594 S.E.2d 711 (2004).
2. Taul next claims that the trial court erred in failing to grant his motion for directed verdict on the aggravated assault charge.
On appeal, the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction. The issue is whether, based on the evidence presented, a rational finder of fact could have found the accused guilty of the charged offenses beyond a reasonable doubt. Leaving the resolution of conflicting or contradictory testimony and the credibility of the witnesses to the jury, we construe the evidence in favor of the jury's verdicts.
(Punctuation and footnotes omitted.) Hash v. State, 248 Ga.App. 456, 457(1), 546 S.E.2d 833 (2001). A person commits aggravated assault when he "assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury." OCGA § 16-5-21(a)(2). A person commits aggravated assault upon a peace officer when he assaults "while the peace officer is engaged in, or on account of the performance of, his or her official duties." OCGA § 16-5-21(c). In turn, a person commits an assault when he "[a]ttempts to commit a violent injury to the person of another; or . . . [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury." OCGA § 16-5-20(a)(1), (2). "The question of whether an automobile has been intentionally used in such a manner so as to constitute a deadly or offensive weapon is one for the jury to resolve. Intent, of course, may be inferred from the circumstances." (Citations omitted.) Adams v. State, 280 Ga.App. 779, 781, 634 S.E.2d 868 (2006).
The evidence established that while the deputy stood visibly in the roadway, with his arms raised and yelling for Taul to stop his vehicle at the roadblock, Taul drove his vehicle at a speed of 40 miles per hour directly at the deputy. Rather than stopping, slowing down, or swerving to avoid possible contact, Taul continued to drive directly toward the *649 deputy, who had to quickly jump out of the roadway to avoid being struck by Taul's vehicle. The deputy feared "[b]eing struck by [Taul's] vehicle and receiving serious injuries." Based upon this evidence, the jury was authorized to determine that Taul had the requisite criminal intent to commit an aggravated assault against the deputy, who was placed in reasonable apprehension of immediately receiving a violent injury. See Turner v. State, 281 Ga. 487, 489(1)(b), 640 S.E.2d 25 (2007); Adams, 280 Ga.App. at 781, 634 S.E.2d 868; Young v. State, 273 Ga.App. 151, 152-153(1), 614 S.E.2d 257 (2005). Consequently, the trial court's denial of Taul's motion for directed verdict was proper.
3. Taul further contends that the trial court erred in failing to instruct the jury on justification and the right to resist an unlawful detention as applied to the aggravated assault charge. While Taul concedes that he did not request any instructions on these issues, he argues the trial court was nevertheless obligated to charge them sua sponte. We disagree.
It is true that "the failure to give a charge on a defendant's sole defense in a criminal case, even without a request, constitutes reversible error if there is some evidence to support the charge." (Citations omitted.) Parker v. State, 230 Ga.App. 578, 579(2), 497 S.E.2d 62 (1998). But, here there was no evidence warranting the suggested charges.
In resisting an unlawful arrest [or detention], one is justified in using force, but only such force as is reasonably necessary to prevent the arrest, i.e., force proportionate to the force being used in the unlawful detention. Thus, [a defendant] is never justified in assaulting an . . . officer unless the officer has assaulted him first.
(Citations and punctuation omitted.) Sosebee v. State, 169 Ga.App. 370(1), 312 S.E.2d 853 (1983). See also Brooks v. State, 144 Ga. App. 97, 100(4), 240 S.E.2d 593 (1977). Since there is no evidence that the deputy assaulted or used force against Taul, a charge on justification was not warranted.
And significantly, justification was not Taul's sole defense. Taul argued that the deputy deliberately stepped in front of his vehicle and therefore it was the deputy's own acts, not Taul's, that had placed the deputy in reasonable apprehension of immediately receiving a violent injury. "A trial court does not err in failing to charge without request on an affirmative defense unless it is the defendant's sole defense." (Punctuation and footnote omitted.) Strickland v. State, 267 Ga.App. 610, 611, 600 S.E.2d 693 (2004). It thus follows that the trial court was not obligated to charge the jury sua sponte on the alleged defenses. See Cromer v. State, 238 Ga. 425, 426(2), 233 S.E.2d 158 (1977); Strickland, 267 Ga.App. at 611-612, 600 S.E.2d 693; McCarr v. State, 197 Ga. App. 124, 124-125(2), 397 S.E.2d 711 (1990); Brooks, 144 Ga.App. at 99(4), 240 S.E.2d 593.
4. Lastly, Taul contends that he received ineffective assistance of trial counsel.
In order to establish that trial counsel's performance was so defective as to require a new trial, [Taul] must show that counsel's performance was deficient and that the deficient performance so prejudiced [Taul] that there is a reasonable likelihood that, absent counsel's errors, the outcome of the trial would have been different. There is a strong presumption that counsel's conduct fell within a broad range of reasonable professional conduct. The trial court's determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.
(Citations and punctuation omitted.) Huguley v. State, 242 Ga.App. 645, 647(1), 529 S.E.2d 915 (2000). Taul has not met his burden of establishing ineffective assistance of counsel in accordance with these standards.
(a) Taul first contends that his counsel was ineffective by failing to request a curative instruction and/or a mistrial when the supervising lieutenant testified that the officers pursued Taul's vehicle because "[h]e had just committed a crime, tried to run over one of my officers." Taul's trial counsel objected to this testimony when it was given and again when it was referenced during the prosecutor's *650 closing argument. Taul contends that the testimony was an improper statement as to the ultimate issue of the aggravated assault charge.
The trial court overruled trial counsel's objection based upon its reasoning that the lieutenant could testify as to his personal observations, and further stated on the record that the issue was for the jury's determination. The trial court also overruled trial counsel's objection to the prosecutor's closing argument, finding that trial counsel had misinterpreted the prosecutor's argument. The trial court reiterated in open court that "the jury decides whether or not there was an aggravated assault." The trial court also charged the jury that it was their duty to determine whether Taul was guilty of the offenses charged beyond a reasonable doubt.
Pretermitting whether the trial court properly overruled the trial counsel's objections[3] and whether trial counsel's failure to move for a mistrial or ask for a curative instruction constituted deficient performance, Taul has not established that there was a reasonable probability that the outcome of the trial would have been different. In pronouncing its rulings on the objections, the trial court reiterated in open court that the jury was to decide whether Taul was guilty of the aggravated assault offense, and Taul has not suggested a curative instruction that would have been more effective. Moreover, any error was harmless because the evidence against Taul was overwhelming. See Ludden v. State, 176 Ga.App. 109, 111(2), 335 S.E.2d 428 (1985). See also Johnson v. State, 281 Ga. 770, 772(2)(b), 642 S.E.2d 827 (2007); Fulton v. State, 278 Ga. 58, 63(8), 597 S.E.2d 396 (2004). As such, Taul's claim for ineffective assistance of counsel must fail.
(b) Taul further claims that his counsel was ineffective in failing to request a jury instruction on reckless conduct as a lesser included offense of aggravated assault. This claim also is without merit.
"An essential element of the [reckless conduct] crime is criminal negligence." (Citation omitted.) Head v. State, 233 Ga. App. 655, 659(4), 504 S.E.2d 499 (1998). There was no evidence that would support a finding that Taul's driving his vehicle directly at the deputy was criminally negligent rather than intentional. See id.; Huguley, 242 Ga. App. at 648-649(1)(a), (b), 529 S.E.2d 915. Compare Shaw v. State, 238 Ga.App. 757, 757-759(1), 519 S.E.2d 486 (1999) (finding that evidence that defendant fired a gun into the air, and not at the officers, during the police chase authorized a jury charge on reckless conduct as a lesser included offense of aggravated assault with a deadly weapon based on OCGA § 16-5-20(a)(1)). Here, the evidence established only the aggravated assault charge. Although the deputy standing in the roadway was clearly visible, Taul "pretty much freaked out and said he wasn't stopping." Taul drove his vehicle directly at the deputy, who had to quickly jump out of the roadway to avoid being struck by Taul's vehicle. The deputy testified that he feared "[b]eing struck by [Taul's] vehicle and receiving serious injuries." Since a jury charge on reckless conduct was not authorized by the evidence, trial counsel was not ineffective by failing to request such a charge. Moreover, as stated in Division 3, there was no evidence supporting Taul's claims of justification or right to resist an unlawful detention. Berry v. State, 282 Ga. 376, 381-382(5), 651 S.E.2d 1 (2007).
Moreover, at the motion for new trial hearing, trial counsel testified that his failure to request a jury charge on the lesser included offense was a matter of trial strategy to pursue an "all or nothing" defense for the aggravated assault charge, but that "in hindsight . . . it would have been a better idea to [request the reckless conduct charge]." Notwithstanding trial counsel's opinion given in hindsight,
[t]rial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of *651 action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant's original representation was inadequate.
(Citation and punctuation omitted.) Bashiri v. State, 217 Ga.App. 400, 401-402, 457 S.E.2d 825 (1995). Because the evidence did not establish reckless conduct as a lesser included charge, trial counsel's strategy was not unreasonable. Taul's claim thus affords no basis for relief.
Judgment affirmed.
BLACKBURN, P.J., and RUFFIN, J., concur.
NOTES
[1] Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
[2] Drivers were alerted to the roadblock by the deputies' marked vehicles which had their blue lights turned on as well as by the presence of the deputies themselves who were wearing uniforms and reflective vests.
[3] A witness is authorized to testify as to his personal observations of a defendant's actions. See Bridges v. State, 279 Ga. 351, 356(7), 613 S.E.2d 621 (2005); Ludden v. State, 176 Ga.App. 109, 110-111(2), 335 S.E.2d 428 (1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725012/ | 203 So. 2d 10 (1967)
Ernest E. WILLOUGHBY, Appellant,
v.
The STATE of Florida, Appellee.
David BRADLEY, Jr., Appellant,
v.
The STATE of Florida, Appellee.
Willie HOWARD, Appellant,
v.
The STATE of Florida, Appellee.
John St. ROBERTS, Appellant,
v.
The STATE of Florida, Appellee.
John JOHNSON, Appellant,
v.
The STATE of Florida, Appellee.
Nos. 66716, 66732, 6779, 67177, 67201.
District Court of Appeal of Florida. Third District.
October 10, 1967.
Robert L. Koeppel, Public Defender and Marvin J. Emory, Jr., Asst. Public Defender, for appellants.
Earl Faircloth, Atty. Gen., and Barry N. Semet, Asst. Atty. Gen., for appellee.
Before PEARSON, HENDRY and SWANN, JJ.
PER CURIAM.
These five appeals present a single question. In each instance the defendant-appellant was convicted of a felony in the Criminal Court of Record of Dade County, Florida. The issue presented in each appeal is whether the judgment is erroneous and must be reversed for a new trial because the record does not affirmatively show that the defendant was accorded and waived the opportunity to present argument at the close of the non-jury trial.
The appellants rely upon Floyd v. State, Fla. 1956, 90 So. 2d 105. See also Ruffin v. State, Fla.App. 1967, 195 So. 2d 26. It is urged that the language of the Supreme Court in the Floyd opinion requires the record to affirmatively show that the defendant was tendered the opportunity to present closing argument.
In each of the cases before us, the record does show that after resting his case, the defendant was adjudged guilty. In no instance was the question now presented to this appellate court presented to the trial court by a request for closing argument, an objection to the alleged denial of such, a motion for a mistrial or a motion for a new trial. We think that under these circumstances, the question may not be presented for the first time upon appeal.
See Dukes v. State, 148 Fla. 109, 3 So. 2d 754 (1941); § 924.11, Fla. Stat. (1965), F.S.A. Rule 6.7(g), Florida Appellate *11 Rules, 32 F.S.A. Cf., Hall v. State, 119 Fla. 38, 160 So. 511.
The judgment and sentence is affirmed in each of the above appeals.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725002/ | 203 So. 2d 202 (1967)
Charles HALL, Appellant,
v.
STATE of Florida, Appellee.
No. 1197.
District Court of Appeal of Florida. Fourth District.
October 10, 1967.
Rehearing Denied November 8, 1967.
*203 Thomas M. Coker, Jr., Public Defender, and Ross E. Mowry, Asst. Public Defender, Fort Lauderdale, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and James T. Carlisle, Asst. Atty. Gen., Vero Beach, for appellee.
BARNS, PAUL D., Associate Judge.
After verdict, Charles Hall was adjudged guilty of murder in the second degree, and upon motion for a new trial being denied, he entered this appeal through the Public Defender. We affirm.
The appellant's first four assignments of error are that (1) the verdict is contrary to the law; (2) the verdict is contrary to the evidence; (3) the verdict is contrary to the law and the evidence; and (4) the verdict is contrary to the weight of the evidence. The verdict of a jury is not a judicial act and is not assignable as error. Florida Appellate Rule 3.5(c), 32 F.S.A. To be of any force and effect assignments of error must be addressed to identified judicial acts.
Appellant's first point argued is that there is a "material variance between the name of the victim as alleged in the information and that of the person proved to have been attacked by the defendant." This point comes within the scope of the assignment that the "State failed to prove that the individual shot was the deceased."
The information charges that the defendant shot and killed Waldo Cokerwolge, Jr., a/k/a Waldo Cokerwolde, Jr., on March 26, 1966. At trial, it was stipulated that "Waldo Cokerwolge, Jr. died on May 11th, 1966 of a gunshot wound." The defendant testified that he and Mary and Dot and Coker went to the house of "Coker" and "Dot" on the morning of the shooting where "Coker Junior grabbed me" and on cross examination the defendant admitted he shot "Waldo". The several witnesses identified the man shot on March 26th as "Coker Junior Waldo", "Waldo", or "Coker Junior". The defendant used the name "Waldo" in reference to the man shot when he said, "Waldo, don't crowd me". There is nothing in the record to suggest that the defendant did not shoot Waldo Cokerwolge, Jr., and all the evidence shows that it was he that the defendant shot with a pistol and it is stipulated that he died of a gunshot wound. The point is without merit.
The defendant's second point argued is: "Were the comments of the prosecutor *204 in the closing argument prejudicial to appellant?" which is within the scope an assignment of error that "the Prosecutor used improper remarks in his closing argument to the jury". Appellant's brief fails to show that any objection was made at trial to such remarks or that any judicial ruling relative thereto was made at trial. We have examined the record in this respect and find the point without merit.
Affirmed.
CROSS and McCAIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335126/ | 659 S.E.2d 612 (2008)
LUCAS et al.
v.
CRANSHAW et al.
No. A07A2069.
Court of Appeals of Georgia.
February 6, 2008.
*613 Hall, Bloch, Garland & Meyer, Christina K. Brosche, Macon, for Appellant.
Schiff & Hardin, Walter H. Bush Jr., Atlanta, for Appellee.
PHIPPS, Judge.
John Lucas and Antebellum Builders, Inc. (ABI) brought this action against David Cranshaw and a newspaper he edits known as Buyers' Guide & News (Buyers' Guide), seeking damages on theories of libel and libel per se. Lucas and ABI appeal the trial court's grant of the Cranshaw defendants' motion for summary judgment on both issues. We find no error and affirm.
On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.[1]
The facts here are undisputed. ABI, a paving and grading company owned and operated by Lucas, was hired by The Boss King Group, LLC (Boss King) to perform grading and paving work on a tract of land *614 owned by Boss King adjacent to another 23-plus acre tract owned by the Houston County School District. The Houston County Board of Education (BOE) purchased the 23-plus acre tract with the intent of building an elementary school on it. Boss King agreed to build a road free of charge to provide access to the school. In doing the road work, ABI discovered that it would need extra dirt to fill the road. To obtain the fill dirt, ABI removed dirt and trees from BOE's tract under the mistaken belief that the dirt was being taken from the adjacent tract owned by Boss King.
Buyers' Guide is a free, weekly newspaper published in Houston County. In a March 2006 edition, Cranshaw wrote an article in Buyers' Guide concerning ABI's removal of dirt and trees from the BOE's land. The article was entitled, "A Rape of Public Land." It related that the elementary school was to have been built on the "forested hilltop" of the "23-plus acre site," but that "old-growth pine and hardwood trees" along with "in the neighborhood of 30,000-to-36,000 cubic yards of dirt" had all been removed from the hilltop, so that, in the words of a BOE member, "`The property as we knew it just wasn't here anymore. . . . It was gone.'" The article further related that BOE members had responded by unanimously voting to seek an injunction in superior court requiring several local developers, contractors, and companies to stay away from the school site and not alter the property in any way. Boss King and ABI along with various individuals were named as anticipated defendants in the suit. The article stated that the named individuals owned the adjacent property, had sold the 23-plus acre tract to the BOE, had admitted to removing the trees and dirts, and had "agreed in principle to `make things right.'" The article further related that "before the purchase, the school board had talked of building a model school, a `showpiece' which would take advantage of the topography and natural growth flora[,]" but "[t]hat opportunity would seem to be lost at this point." In concluding, the article stated that the BOE's chairperson was "fit to be tied over what has happened." Above the article was a photograph of the site where trees and soil had been removed.
In the next week's edition of the Buyers' Guide, Cranshaw wrote a follow-up article entitled "Can BOE Make Do with Less?" That article stated that at its monthly meeting to be held that week the BOE would consider the matter of "the piece of property owned by the board which has been stripped of forest and soil without its knowledge or permission, we are told." The article related that school officials had met with "those who the board says have admitted to removing dirt and trees in an effort to reach a settlement which would cover damage allegedly done to the property[,]" and that the meetings had "met with what one person close to the talks calls `limited success.'" The article further stated that the matter of damages at the upcoming meeting would be discussed in closed session "exempted from open meeting discussion since they involve pending or prospective litigation." The second article also referenced the first, described the property in somewhat greater detail, and identified ABI, Boss King, and the individual development owners as the parties who had been "meeting with school officials to discuss damages and related matters."
Letters from unnamed readers responding to the first article were published in the "Speak Out" column of that week's Buyers' Guide. One letter characterized the activity described in the article as a trespass to the land. Other letters expressed disappointment at the BOE's failure to do nothing more than seek an injunction and suggested that persons "who violated property rights . . . be prosecuted or something if they confess or are found guilty." Yet other letters referred to "the theft of the school board's dirt and trees from the land" and to "the dirt stolen from the school board when somebody went in and cut down trees and hauled off the dirt."
1. The trial court did not err in awarding summary judgment to the Cranshaw defendants on the Lucas plaintiffs' libel claim.
"A libel is a false and malicious defamation of another, expressed in print, writing, pictures, or signs, tending to injure the reputation of the person and exposing him to *615 public hatred, contempt, or ridicule."[2] "As to proof of malice, proof that the writing is false, and that it maligns the private character or mercantile standing of another, is itself evidence of legal malice."[3]
Because falsity is an essential element of both libel and slander, "truth is a `perfect defense' to a defamation action."[4] Accordingly, "[w]here a publication is substantially accurate, and if the article is published by the newspaper in good faith and the same is substantially accurate, the newspaper has a complete defense."[5] "As long as facts are not misstated, distorted or arranged so as to convey a false and defamatory meaning, there is no liability for a somewhat less than complete report of the truth, even if the newspaper . . . conveys . . . its own editorial opinions."[6]
Furthermore, "[i]n determining whether a newspaper article is libelous, it is necessary to consider the entire article in order to arrive at its true meaning."[7]
A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. So the whole item, including display lines, should be read and construed together, and its meaning and signification thus determined. When thus read, if its meaning is so unambiguous as to reasonably bear but one interpretation, it is for the judge to say whether that signification is defamatory or not. If, upon the other hand, it is capable of two meanings, one of which would be libelous and actionable and the other not, it is for the jury to say, under all the circumstances surrounding its publication, including extraneous facts admissible in evidence, which of the two meanings would be attributed to it by those to whom it is addressed or by whom it may be read.[8]
"In considering whether a writing is defamatory as a matter of law, we look at what construction would be placed upon it by the average reader."[9]
The plaintiffs' central argument is that the headline reference to a "rape" of public land with the body of the article failing to inform the reader that the land had been damaged under the mistaken belief that removal of the dirt and trees was authorized resulted in a distorted article that conveyed a false and defamatory meaning. We cannot agree.
There is no claim that any statement in the body of either article was untrue.[10] The articles accurately stated that "old-growth pine and hardwood trees" along with "in the neighborhood of 30,000-to-36,000 cubic yards of dirt" had been removed, so that "the piece of property" had been "stripped of forest and soil without [the BOE's] knowledge or permission." In relating that the BOE was seeking an injunction and attempting to resolve the matter of damages with the offending parties through discussions that involved "pending or prospective litigation," the clear implication of the articles was that a civil wrong had been committed. Viewing the first article in its entirety, we conclude that the average reader would have interpreted the headline's use of the term "rape" as an attempt to convey the severity of the damage to the land rather than to characterize the conduct that resulted *616 in the damage as criminal. Viewed in context, description of what had occurred as a "rape" of the land constituted "a mere statement of opinion or rhetorical hyperbole" that "cannot form the basis of a defamation claim."[11]
We have previously held that there is no wholesale defamation exemption for anything that might be labeled "opinion." To say otherwise would ignore the fact that expressions of "opinion" may often imply an assertion of objective fact. The pivotal questions are whether the challenged statements can reasonably be interpreted as stating or implying defamatory facts about plaintiff and, if so, whether the defamatory assertions are capable of being proved false.[12]
The requirement that, to be actionable, a statement of opinion must imply an assertion of objective facts about the plaintiff unquestionably excludes from defamation liability not only statements of rhetorical hyperbole but also statements clearly recognizable as pure opinion because their factual premises are revealed. . . . If an opinion is based upon facts already disclosed in the communication, the expression of the opinion implies nothing other than the speaker's subjective interpretation of the facts. Thus, the Restatement notes that "a statement of (opinion) is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion."[13]
Here, Cranshaw opined that there had been a rape of the land. The contents of the article accurately set forth the factual premise for Cranshaw's opinion that the damage to the land had been so severe as to justify a hyperbolic description of it as a "rape." In that circumstance, "[t]he failure to include more information or the omission of information from a published statement does not constitute libel, even though it is not the whole truth."[14] As such, the article did not constitute actionable libel.[15]
2. For reasons previously given, and for additional reasons set forth below, the article did not constitute libel per se.
Under OCGA § 51-5-4(a), slander per se
consists in: (1) Imputing to another a crime punishable by law; (2) Charging a person with having some contagious disorder or with being guilty of some debasing act which may exclude him from society; (3) Making charges against another in reference to his trade, office, or profession, calculated to injure him therein.[16]
Unlike other types of slander, statements that are slanderous per se support a defamation action without proof of special damages.[17] Although OCGA § 51-5-4 refers to slander and not libel, "[t]he definition of slander in Georgia has been incorporated into the definition of libel."[18] Therefore, that which is slander per se can also become libel per se under the aegis of OCGA § 51-5-4.[19]
In Bullock v. Jeon,[20] however, we held that "[a]bsent a sexual connotation, disparaging words allegedly imputing a sexual crime will not constitute slander per se." Unquestionably, Cranshaw did not intend, *617 and the readers of the Buyers' Guide did not interpret, the term "rape" as having any sexual connotation in the context used in the article. For that reason, libel per se under OCGA § 51-5-4(a)(1) has not been shown. Nor has libel per se under OCGA § 51-5-4(a)(3) been show, as
the statements at issue pertain only to a single instance. Language imputing to a business or professional man ignorance or mistake on a single occasion and not accusing him of general ignorance or lack of skill is not actionable per se. This is because a charge that plaintiff in a single instance was guilty of a mistake, impropriety or other unprofessional conduct does not imply that he is generally unfit.[21]
And the Lucas plaintiffs make no claim of libel per se under OCGA § 51-5-4(a)(2).
Judgment affirmed.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1] Cox Enterprises v. Nix, 274 Ga. 801, 804(2), 560 S.E.2d 650 (2002) (citation and punctuation omitted).
[2] OCGA § 51-5-1(a).
[3] John D. Robinson Corp. v. Southern Marine, etc. Co., 196 Ga.App. 402, 404(1), 395 S.E.2d 837 (1990) (citation, punctuation and emphasis omitted).
[4] Bird v. Weis Broadcasting Corp., 193 Ga.App. 657, 658(2), 388 S.E.2d 710 (1989).
[5] Blomberg v. Cox Enterprises, 228 Ga.App. 178, 180(1), 491 S.E.2d 430 (1997) (citation and punctuation omitted).
[6] Mathews v. Atlanta Newspapers, 116 Ga.App. 337, 340(4), 157 S.E.2d 300 (1967).
[7] Savannah News-Press v. Hartridge, 104 Ga.App. 22-23, 120 S.E.2d 918 (1961).
[8] Constitution Publishing Co. v. Andrews, 50 Ga. App. 116, 117, 177 S.E. 258 (1934) (citations and punctuation omitted); see Collins v. Creative Loafing Savannah, 264 Ga.App. 675, 679(1)(c), 592 S.E.2d 170 (2003).
[9] Cox Enterprises v. Nix, supra, 274 Ga. at 803(1), 560 S.E.2d 650 (citation and punctuation omitted).
[10] See Mathews v. Atlanta Newspapers, supra.
[11] Jaillett v. Ga. Television Co., 238 Ga.App. 885, 890, 520 S.E.2d 721 (1999).
[12] Id. (citations and punctuation omitted).
[13] Id. (citations and punctuation omitted; emphasis in original).
[14] McDonald v. Few, 270 Ga.App. 671, 672(1), 607 S.E.2d 265 (2004) (citations omitted); see Yandle v. Mitchell Motors, 199 Ga.App. 211-212, 404 S.E.2d 313 (1991) (having truthfully reported what occurred, defendant may have had a moral duty also to report extenuating circumstances, but failure to have done so was not breach of legal duty that exposed it to liability for defamation).
[15] See Webster v. Wilkins, 217 Ga.App. 194, 195(1), 456 S.E.2d 699 (1995).
[16] See id. at 196(2), 456 S.E.2d 699.
[17] See OCGA § 51-5-4(b); Strange v. Henderson, 223 Ga.App. 218, 219, 477 S.E.2d 330 (1996).
[18] Hayes v. Irwin, 541 F.Supp. 397, 431 n. 34 (N.D.Ga.1982) (citations omitted), aff'd without opinion, 729 F.2d 1466 (11th Cir.1984).
[19] See Mathis v. Cannon, 252 Ga.App. 282, 283(1), 556 S.E.2d 172 (2001).
[20] 226 Ga.App. 875, 877(2), 487 S.E.2d 692 (1997).
[21] Crown Andersen v. Ga. Gulf Corp., 251 Ga. App. 551, 554(2), 554 S.E.2d 518 (2001) (citations and punctuation omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1864883/ | 345 So.2d 806 (1977)
H.P. BONDURANT, Individually and D/B/a H.P. Bondurant Trucking Company, Appellant,
v.
BEARD EQUIPMENT COMPANY, Appellee.
No. BB-238.
District Court of Appeal of Florida, First District.
March 3, 1977.
*807 R. Brownlee Eggart, of Eggart & Hoffman, Pensacola, for appellant.
Charles C. Sherrill and Eric C. Eggen, of Sherrill & Moore, Pensacola, for appellee.
ERVIN, Judge.
This is an appeal by defendant Bondurant from a recovery of a deficiency judgment by plaintiff Beard for breach of a retail installment contract following trial by jury. Bondurant's sole point on appeal relates to the adequacy of notice following default, contending that prior to resale of the loader he should have received written notification from Beard of its intent to resell the machine. Beard sold Bondurant a second-hand front end loader for $15,000.00. Bondurant paid $1,250.00 down and signed a security agreement for the remainder. After using the loader in his dirt moving business for a short time, Bondurant returned it to Beard for engine repairs. When the repairs were completed, Bondurant was advised during a telephone conversation with Beard's sales manager that his loader was ready for removal. Beard's manager testified at trial:
"A. Well, he said he didn't want the
* * * * * *
the machine back and I could do what I want to with it. And at that time I told him we were going to take him to court
Q. [Interposing] What about selling it, did you say anything to him about selling it?
A. I told him we was going to have to sell it and then take him to court for the difference.
Q. You specifically recall telling him you were going to have to sell the machine?
A. Yes, sir, I did.
Q. Where were you going to sell it?
A. Well, we was just going to sell it there at the place.
Q. Put it back on the lot and sell it?
A. Yes, sir."
About three months after the above conversation and without any further notification to Bondurant, the front end loader was sold by Beard to a retail customer for $14,500.00. Beard then filed suit against Bondurant seeking damages for costs of repair, expenses of resale and the $500.00 difference in the purchase price.
This case necessarily involves a construction of Section 679.504(3), Florida Statutes (1975) (Section 9-504, U.C.C.):
"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, and except in the case of consumer goods to any other person who has a security interest in the collateral and who has duly filed a financing statement indexed in the name of the debtor in this state or who is known by the secured party to have a security interest in the collateral... ." (Emphasis added.)
Bondurant argues from the above statute and from the definition of the word "send", as set forth at Section 671.201(38), that written notice must be sent by the secured party before Beard was permitted to dispose of the collateral. Send is defined in Section 671.201(38) as follows:
"`Send' in connection with any writing or notice means to deposit in the mail or deliver for transmission by any other usual means of communication with postage or cost of transmission provided for and properly addressed and in the case of an *808 instrument to an address specified thereon or otherwise agreed, or if there be none to any address reasonable under the circumstances. The receipt of any writing or notice within the time at which it would have arrived if properly sent has the effect of a proper sending."
Send in the above definition applies only to written notice. Notice under Section 679.504(3), however, need only be "reasonable". Compare 671.201(38), which seems to require notice in writing, with the following definitions of notice from 671.201(25), (26), and (27):
"(25) A person has `notice' of a fact when
(a) He has actual knowledge of it; or
(b) He has received a notice or notification of it; or
(c) From all the facts and circumstances known to him at the time in question he has reason to know that it exists. A person `knows' or has `knowledge' of a fact when he has actual knowledge of it. `Discover' or `learn' or a word or phrase of similar import refers to knowledge rather than to reason to know. The time and circumstances under which a notice or notification may cease to be effective are not determined by this code.
(26) A person `notifies' or `gives' a notice or notification to another by taking such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it. A person `receives' a notice or notification when
(a) It comes to his attention; or
(b) It is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of such communications.
(27) Notice, knowledge or a notice or notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction, and in any event from the time when it would have been brought to his attention if the organization had exercised due diligence."
There is no question but that Bondurant knew the loader would be sold. Bondurant has advanced no argument that the sale was not commercially reasonable. Bondurant testified that Beard's business included the sale of used equipment and therefore he had reason to know that Beard would place the loader back on its lot and offer it for sale. All that is required in the private sale of collateral is reasonable notification and there is no requirement of notice of the time and place of sale. 4 Anderson, Uniform Commercial Code, § 9-504:20 (2nd ed. 1971).
The only Florida case we have found involving an interpretation of Section 679.504(3) is Turk v. St. Petersburg Bank and Trust Company, 281 So.2d 534 (Fla. 2nd DCA 1973) in which the court merely held that before a deficiency judgment might be obtained against one of the debtors on a promissory note, such debtor first must be given notice of the intended sale of repossessed collateral. The judgment debtor, Turk, was never afforded any notice at all from the bank, so the precise question involving the method of notice was not reached.
There is a division of authority of out of state cases involving the type of notice required to be sent under Article nine of the Code. Oral notice to a debtor of the sale of collateral defaulted upon has been held sufficient in the following cases: GAC Credit Corp. v. Small Business Administration, 323 F. Supp. 795 (W.D.Mo. 1971); A.J. Armstrong Co. v. Janburt Embroidery Corp., 97 N.J. Super. 246, 234 A.2d 737 (1967); Crest Investment Trust, Inc. v. Alatzas, 264 Md. 571, 287 A.2d 261 (1972); Fairchild v. Williams Feed, Inc., 544 P.2d 1216 (Mont. 1976).
Those cases seeming to require written notice as a matter of law DeLay First National Bank and Trust Co. v. Jacobson Appliance Co., 196 Neb. 398, 243 N.W.2d 745 (1976); Foundation Discounts, Inc. v. Serna, 81 N.M. 474, 468 P.2d 875 (1970) in our view take an overly restrictive construction of reasonable notice.
*809 The purpose of notice under Section 679.504(3) is to enable the debtor to protect his interest by paying the debt, finding a buyer or being present at the sale to bid on the property or have others do so, to the end that it not be sacrificed by a sale at less than its true value. Franklin State Bank v. Parker, 136 N.J. Super. 476, 346 A.2d 632 (1975). Beard in this instance did not give notice of the exact time of sale because the loader was sold in the normal course of business. Bondurant, however, knew where the loader was and why it was being sold. He had three months to find a buyer for the equipment and in fact tried to do so. We hold under the particular circumstances of this case that the defendant's actual knowledge of the expected sale was sufficient reasonable notice.
At trial, the burden of proving notice was on the plaintiff who had peculiar knowledge of the facts. Mallicoat v. Volunteer Finance and Loan Corp., 57 Tenn. App. 106, 415 S.W.2d 347 (1966). The question of reasonable notice was for the jury to decide. Baber v. Williams Ford Co., 239 Ark. 1054, 396 S.W.2d 302 (1965). Since the jury found plaintiff met that burden, we find no error.
AFFIRMED.
RAWLS, Acting C.J., and SMITH, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312892/ | John J. Tharp, Jr., United States District Judge
On May 12, 2014, and May 20, 2014, hail storms took place in and around Elk Grove Village, Illinois. Or maybe they didn't. The plaintiff, Huntington Chase Condominium Association ("Huntington"), which operates a complex of condominium buildings, contends that these storms occurred and caused direct physical damage to its property. Its insurer, defendant Mid-Century Insurance Company ("Mid-Century"), denies that there were significant hail storms on those dates and asserts that the only substantial hail storm to hit Huntington's property between January 2010 and April 2017 occurred in April 2010, well before its policy with Huntington was in effect. After Mid-Century denied Huntington's insurance claim, Huntington filed this lawsuit accusing Mid-Century of breaching its insurance policy. Mid-Century has moved for summary judgment. In addition, each party has filed a motion to exclude the other side's expert witness on forensic meteorology. All three motions are denied. The foundational questions of whether and, if so, when a hail storm damaged the Huntington complex, as well as myriad subsidiary Facts, are disputed. And though each side denigrates the other's expert, their basic methodologies-which bear significant similarities-are sufficiently reliable to let a jury weigh their merit. Resolution of these fact disputes, and the attendant battle of the experts, requires a trial.
BACKGROUND
Huntington operates a 53-building, 336-unit condominium association that is located in Elk Grove Village. Def.'s Statement of Material Facts ("DSOF") ¶ 3, ECF No. 58. The buildings on that property were constructed in 1994 and 1995. Id. ¶ 4. From August 21, 2013, to August 21, 2014, that property was covered by an insurance policy issued by Mid-Century. Id. ¶ 5. That policy provided that Mid-Century would pay for "direct physical loss of or damage to Covered Property," subject to the terms in the agreement. Condominium Property Coverage Form 1, ECF No. 1-1. One such condition of recovery contained in the contract is that "in the event of loss or damage to Covered Property," Huntington was required to give Mid-Century "prompt notice of the loss or damage." Id. at 18.
According to Huntington, on May 12, 2014, and May 20, 2014, severe hail storms occurred at the property. Huntington alleges that these storms caused direct physical damage to the roofs and siding of its buildings. It appears that Huntington was first made aware of this event in August 2014, when an individual who lived at the property informed Edward Bartosch, the president of Huntington's board of directors and also a resident, that he *691believed the roofs and siding of the property had been damaged in a storm back in May. See DSOF ¶¶ 27-28; Pl.'s Statement of Additional Material Facts ¶ 17, ECF No. 64. On November 3, 2014, Huntington first notified Mid-Century that a loss had occurred, and in April 2015, it submitted a claim to Mid-Century. See DSOF ¶¶ 46, 48. Mid-Century denied that claim shortly thereafter. It stated that, along with Haag Engineering, it had conducted its own investigation into the alleged incident. This investigation concluded that any hail damage to the property was minimal and that, to the extent there was hail damage, it had most likely occurred in 2010, prior to the beginning of the policy period. See Ex. 16, ECF No. 64-17. In December 2015, Huntington submitted additional information to Mid-Century and requested that the company reconsider the denial of its claim. DSOF ¶ 50. Mid-Century then rejected that request and reaffirmed its denial of Huntington's claim. Id. ¶ 51.
Huntington filed this lawsuit in April 2016 in the Circuit Court of Cook County, suing Mid-Century for breach of contract. Mid-Century removed the case to this Court, based on diversity jurisdiction.1 Mid-Century has now moved for summary judgment. In addition, each party has filed a motion to bar the testimony of one of the other side's expert witnesses. Those three motions are all now before this Court.
DISCUSSION
I. Motion for Summary Judgment
A court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In reviewing a motion for summary judgment, the Court "construe[s] all facts and inferences in favor of the nonmoving party." Love v. JP Cullen & Sons, Inc. , 779 F.3d 697, 701 (7th Cir. 2015).
Mid-Century has advanced two arguments as to why it is entitled to summary judgment. First, it argues that Huntington did not provide it with "prompt notice of the loss or damage," as required under the terms of the insurance policy. Second, it contends that Huntington cannot meet its burden of establishing that it suffered loss or damage to its property as a result of the storms such that it is entitled to recovery under the policy.
A. Prompt Notice
The insurance policy at issue in this case states that "in the event of loss or damage to Covered Property," the policy holder must give Mid-Century "prompt notice of the loss or damage." The policy does not define what qualifies as "prompt notice." As both parties agree, Illinois courts interpret such provisions as requiring the insured to provide notice to the insurer "within a reasonable time." See, e.g. , First Chicago Ins. Co. v. Molda , 408 Ill. App. 3d 839, 846, 350 Ill.Dec. 137, 948 N.E.2d 206, 213 (2011). Illinois courts consider a variety of factors in determining whether a party has provided notice within a reasonable time. The most obvious of them is the length of time that has elapsed between the incident and the notice. Nevertheless, *692a "lengthy passage of time" is not a bar to coverage "provided the insured has a justifiable excuse for the delay." Am. Country Ins. Co. v. Efficient Constr. Corp. , 225 Ill. App. 3d 177, 181, 167 Ill.Dec. 458, 587 N.E.2d 1073, 1075 (1992). The key element of the notification requirement is "the appearance to a reasonable person that a claim covered by a policy may be brought against the insured." Id. In addition to the length of time, the other factors to be considered in the reasonableness analysis include:
(1) the specific language of the policy's notice provisions; (2) the degree of the insured's sophistication in the world of commerce and insurance; (3) the insured's awareness that an occurrence as defined under the terms of the policy has taken place; (4) the insured's diligence and reasonable care in ascertaining whether policy coverage is available once the awareness has occurred; and (5) any prejudice to the insurance company.
Berglind v. Paintball Bus. Ass'n , 402 Ill. App. 3d 76, 86, 341 Ill.Dec. 522, 930 N.E.2d 1036, 1045 (2010). A question of what constitutes notice "within a reasonable time" is "generally a question of fact. However, when there is no controversy as to the facts, the question of what constitutes 'within a reasonable time' becomes a question of law." Id. at 86, 341 Ill.Dec. 522, 930 N.E.2d at 1044. Here, while there are a number of factual disputes regarding the alleged storms, there are no significant disagreements about the facts relevant to the prompt-notice analysis, so it is a question of law.
In the present case, Huntington alleges that the hail storms took place on May 12, 2014, and May 20, 2014. DSOF ¶ 23. So far as the record currently reflects, it appears that none of Huntington's board members were aware that any damage may have occurred as a result of the storms until sometime in August 2014. See id. ¶¶ 27-28. Huntington first notified Mid-Century of the potential loss on November 3, 2014. Id. ¶ 46. The key question, therefore, is whether Huntington's delay in notifying Mid-Century was reasonable.
In answering this question, three of the relevant factors-the length of the delay, the language of the contract, and Huntington's awareness of the occurrence-are intimately bound up with one another. Mid-Century characterizes the delay as lasting about six months, the time that elapsed between the (alleged) storms and the notification. Huntington, in contrast, notes that it was not aware of the damage until August 2014, and provided notice a little over two months thereafter. It argues, therefore, that the delay was really only about two months-or, alternately, that the delay between May 2014 and August 2014 was reasonable given that it was not aware of the damage during this time.
Mid-Century contends that this delay was not reasonable because Huntington's duty to notify was triggered by the hail storms, not by Huntington's awareness of the damage. It writes that "[a]s Plaintiff acknowledges, the relevant factor that courts consider is the insured's knowledge and awareness of an occurrence ." Def.'s Reply in Supp. of Its Mot. for Summ. J. ("Reply") 6, ECF No. 68 (emphasis in original). This assertion, however, is supported only by a citation to Huntington's response brief, and Mid-Century cites no authority in support of this proposition. The sentence that it appears to refer to in Huntington's brief is a paraphrase from Berglind ; as noted above, the full phrase in that opinion states that courts will consider "the insured's awareness that an occurrence as defined under the terms of the policy has taken place" in evaluating whether notice took place within a reasonable time. Berglind , 402 Ill. App. 3d at 86, 341 Ill.Dec. 522, 930 N.E.2d at 1045 (emphasis *693added). In other words, the rule that emerges from Berglind is not that a policy holder is automatically obligated to inform the insurer once any event has happened. Rather, that obligation is triggered when there has been "an occurrence as defined under the terms of the policy."
In Berglind , the word "occurrence" itself appeared in the text of the insurance policy and was defined in that policy, as the insured was required to notify the insurer in the event of an "occurrence." See id. at 79-80, 341 Ill.Dec. 522, 930 N.E.2d at 1039. In the present case, however, the word "occurrence" does not appear in the agreement, and Huntington's obligation to notify Mid-Century instead was triggered "in the event of loss or damage." In other words, the "occurrence as defined under the terms of the policy" here is the loss or damage-not the incident that caused the loss or damage. Mid-Century does not dispute that Huntington was not aware of the potential loss or damage caused by the hail storms until it was notified in August 2014.2 That fact strongly favors Huntington's measurement of the notification delay (approximately two months) and supports a determination that Huntington did not act unreasonably in failing to provide notice during this period. As noted above, the central element of the notification requirement is "the appearance to a reasonable person that a claim covered by a policy may be brought against the insured." Am. Country Ins. Co. , 225 Ill. App. 3d at 181, 167 Ill.Dec. 458, 587 N.E.2d at 1075. Prior to August 2014, it would not have been clear to Huntington, acting reasonably, that such a claim could have been brought.
Similarly, the Court also concludes that Huntington acted reasonably and diligently in ascertaining whether policy coverage was available after August 2014. On September 16, 2014, at the first meeting of Huntington's board of directors after Bartosch was told of the potential damage, the individual who notified Bartosch made a presentation to the board. See Pl.'s Resp. in Opp. to Def.'s Mot. for Summ. J. ("Response") 9, ECF No. 66. The board voted to retain Barry Roofing, which had long done roof-related work for Huntington, to investigate the incident. At the next board meeting, on October 21, 2014, the board reviewed the results of Barry Roofing's investigation and decided to file a claim with Mid-Century. See id. Huntington then formally notified Mid-Century of the loss on November 3, 2014.
Mid-Century argues that even this shorter period of delay was unreasonable because "[t]here is no indication that Plaintiff ever questioned whether it had property insurance coverage, or whether that coverage applied to hail or wind damage." Reply 7. Rather, it contends, "the only uncertainty that needed to be resolved before Plaintiff gave notice of the loss was whether Plaintiff wanted to proceed with making an insurance claim." Id. That is incorrect. What Huntington needed to investigate was whether "loss or damage" under the terms of the contract had actually taken place. As Huntington points out in its response brief, there is good reason to think this question required time and expertise to investigate. After all, damage to roofs is not clearly visible from the ground. See Response 7. Moreover, the identification of hail damage requires a level of expertise, as evidenced by the fact that both sides in this case hired third parties to conduct investigations. See id. at 8. It is also the case that collective bodies, such as *694associations like Huntington, inevitably make decisions somewhat more slowly than individuals.3 Under these circumstances, the delay in notification between August 2014 and November 2014 was reasonable.
There are, however, some factors in the prompt-notice analysis that point in Mid-Century's favor. The most significant is the issue of prejudice. In March 2014-two months before the alleged storms-Huntington concluded a contract with Barry Roofing to replace 12 of the 53 roofs on its property. At some point after the alleged May 2014 storms but before Mid-Century was notified of the loss in November 2014, the two parties went ahead with this contract, and those 12 roofs were replaced. While the factual record is not entirely clear, it appears that this replacement happened after Huntington became aware of the hail storms in August. As the Illinois courts have made clear, the "purpose of a notice requirement in an insurance policy is to enable the insurer to conduct a timely and thorough investigation of the insured's claim." Kerr v. Ill. Cent. R.R. Co. , 283 Ill. App. 3d 574, 585, 219 Ill.Dec. 81, 670 N.E.2d 759, 767 (1996). When the goods or property at issue are replaced, destroyed, or otherwise manipulated before the insurer has an opportunity to inspect them, the insurer has been prejudiced. See, e.g. , Pittway Corp. v. Am. Motorists Ins. Co. , 56 Ill. App. 3d 338, 346, 370 N.E.2d 1271, 1277 (1977) ("The record before us establishes substantial prejudice as a matter of law since by the time American received notice of the first loss the damaged property had been scrapped making inspection or further investigation impossible in any reasonable sense.").
Still, there is reason to question Mid-Century's claim that it was prejudiced by the replacement of these 12 roofs before it was notified of the hail storms. Mid-Century is certainly correct that it has a solid case that it is not required to pay for the cost of replacing those roofs. Those roofs were already damaged to a degree that required their replacement-or at least so Huntington had concluded-before the alleged May 2014 hail storms. Huntington can't very well claim that storms in May 2014 caused damage requiring the replacement of those 12 roofs when it had already determined that the roofs needed to be replaced in March. Having contracted to replace those roofs months before the alleged storms, Huntington seemingly must concede that the damage that required replacement of those roofs was not related to the storm: storm or no, Huntington was going to incur the costs of replacing those roofs. It would be a windfall to Huntington to charge Mid-Century for the cost of replacing roofs that were already beyond repair; the policy with Mid-Century covered "direct physical loss of or damage to Covered Property," and excluded normal wear and tear. See Condominium Property Coverage Form 1, 15.
If, as it seems, Mid-Century will not be on the hook for the cost of replacing those 12 roofs, then what prejudice did the replacement and the delay in notification cause to Mid-Century? The prejudice, if any, would appear to be limited to Mid-Century's lost opportunity to inspect those roofs before they were replaced. Any prejudice arising from that lost opportunity *695would stem only from what those roofs might have revealed generally about the storm and the damage it wrought. Inspecting those roofs, for example, might have provided additional evidence of the severity or direction of the storm. Or perhaps those roofs held the key to dating the damage accurately. As to that sort of information, however, the degree of prejudice caused by Huntington's replacement of the roofs appears small. After all, Mid-Century and the company it hired to do its initial investigation, Haag Engineering, conducted their assessment and were still able to inspect the other 41 roofs on the property. They concluded that there had been minimal hail damage on the property and that any hail damage had likely occurred prior to the 2014 storms. Nowhere did Mid-Century or Haag suggest that the fact that 12 of the roofs had been replaced had compromised its ability to conduct a sufficient investigation. See generally Ex. 16, ECF No. 64-17. Mid-Century has not offered any theory as to what it could have learned from the 12 replaced roofs about the presence or absence of hail that it did not learn from the remaining 41. Thus, while Mid-Century suffered prejudice from the decision to replace the roofs, the level of prejudice is not great.
Then there is the issue of Huntington's sophistication in the worlds of commerce and insurance. As a general rule, corporate entities such as banks are "presumed to be sophisticated in the areas of commerce and insurance," West Am. Ins. Co. v. Yorkville Nat'l Bank , 238 Ill. 2d 177, 186, 345 Ill.Dec. 445, 939 N.E.2d 288, 294 (2010), whereas individuals with only a layman's knowledge of insurance matters are typically considered to be unsophisticated. See Bhd. Mut. Ins. Co. v. Roseth , 177 Ill. App. 3d 443, 448-50, 126 Ill.Dec. 669, 532 N.E.2d 354, 357-58 (1988). Lawyers are "routinely found to be sophisticated in commercial and insurance matters simply by virtue of their profession." Sentinel Ins. Co. v. Cogan , 202 F.Supp.3d 831, 839 (N.D. Ill. 2016). Huntington falls toward the sophisticated end of the spectrum. While it is not, for example, a bank or an insurance company, it is still a corporate entity; it describes itself as "a not-for-profit corporation operating a condominium association." Compl. ¶ 2, ECF No. 1-1. It is governed by a board of directors whose president, Edward Bartosch, was previously a practicing lawyer. DSOF ¶¶ 24-25. Even taking into account, as Huntington points out, that Bartosch had no training in insurance and that Huntington had not submitted an insurance claim in the 10 years before this incident, see Response 6, Huntington must be considered to be at least reasonably sophisticated.
Like the issue of prejudice, however, Huntington's relative sophistication is not hugely important in the overall balance. Courts look at whether a party is sophisticated for the purpose of answering the larger question whether that party's delay in notification was reasonable. For example, the fact that a party is unsophisticated may make it more reasonable for that party to delay notification when, because of its lack of sophistication, that party believes that the incident that took place is not covered by the policy. See, e.g. , Roseth , 177 Ill. App. 3d at 448-50, 126 Ill.Dec. 669, 532 N.E.2d at 357-58. That is not the case here. In the present case, the delay was due to the lack of knowledge that an event that might be covered by the policy had even taken place. Huntington's relative sophistication in the fields of commerce and insurance does nothing to show that it should have been aware of this event earlier, or that it should have been able to move faster to verify that a hail storm had taken place one it became alerted to the possibility.
*696This point is reinforced by Mid-Century's own argument that Barry Roofing was Huntington's longtime roofing contractor, and that Barry Roofing's president, John Argento, had significant experience handling insurance claims. See Def.'s Mem. of Law 5, ECF No. 57. As a preliminary matter, Mid-Century has failed to cite any authority for the proposition that a third party's expertise in commercial or insurance matters can be attributed to another party for the purpose of determining whether the other party is sophisticated. Just as important, however, is that even if one concludes that Barry Roofing's expertise can be imputed to Huntington, that necessarily implies that Huntington had to take the time to communicate with Barry Roofing to take advantage of Barry Roofing's expertise. This, of course, is itself a large part of the reason for the delay in notification after August 2014.
Taking all of these factors into account, and based on the summary judgment record as it exists, the Court concludes that Huntington provided notice within a reasonable time.4 While approximately six months passed between the incident and the notification, on this record it is entirely reasonable that Huntington did not notify Mid-Century for the first four months, when it is uncontested that Huntington did not know of the potential damage. And once it learned of the potential damage, Huntington acted promptly to engage a third-party investigator, Barry Roofing, and made its decision within a reasonable time upon review of Barry Roofing's report. On the other side of the ledger, to the extent that Mid-Century was prejudiced by Huntington's decision to go ahead with its previously agreed-upon replacement of 12 of the roofs, that prejudice was minimal. In addition, Huntington was at least a somewhat sophisticated party, but that factor also has minimal relevance in the specific context of this case. As a result, at this stage the Court concludes that the notice was reasonable, and so the "prompt notice" condition in the contract was satisfied.
B. Proof of Damage
Mid-Century's second argument in favor of summary judgment is that there is not a genuine issue of material fact as to whether Huntington has met its burden of proof to show that the May 2014 storms were the cause of damage to its property. The policy at issue is an example of what is known as an "all-risk" insurance policy, which means that the policy covers all risks or perils except for those that are specifically excluded under the terms of the contract. Under the contract, Mid-Century agreed to pay for "direct physical loss of or damage to Covered Property ... caused by or resulting from any Covered Cause of Loss." Condominium Property Coverage Form 1. "Covered Causes of Loss," in turn, means "Risks of Direct Physical Loss" unless the loss is subject to an enumerated exclusion or limitation. Id. at 3; see also Pl.'s Statement of Additional Material Facts ¶ 8 (confirming this understanding of the contract); Def.'s Resp. to Pl.'s Statement of Additional Material Facts ¶ 8, ECF No. 69 (same).
Under Illinois law, to withstand a motion for summary judgment, a plaintiff in a lawsuit involving an insurer's failure to pay a claim on an "all-risk" policy bears the initial burden of presenting facts sufficient to establish a prima facie case. The plaintiff must show (1) that a loss occurred, (2) that the loss resulted from a fortuitous event, and (3) that the *697policy was in effect at the time of the loss. Gulino v. Econ. Fire & Cas. Co. , 2012 IL App (1st) 102429 ¶ 16, 361 Ill.Dec. 420, 971 N.E.2d 522, 527. A "fortuitous event" is an event that, as far as the parties are aware, is dependent on chance. See Johnson Press of America, Inc. v. Northern Ins. Co. of N.Y. , 339 Ill. App. 3d 864, 872, 274 Ill.Dec. 880, 791 N.E.2d 1291, 1298 (2003). If the plaintiff establishes a prima facie case, the burden then shifts to the insurer "to affirmatively demonstrate that the loss resulted from a peril expressly excluded from coverage." Gulino , 2012 IL App (1st) 102429 ¶ 16, 361 Ill.Dec. 420, 971 N.E.2d at 527. In addition, the plaintiff is also required to "prove the nature, extent or amount of their loss to a reasonable degree of certainty." Harbor House Condo. Ass'n v. Mass. Bay. Ins. Co. , 915 F.2d 316, 318 (7th Cir. 1990).
In the present case, there is no question that a hail storm would qualify as a fortuitous event. There is also no dispute that the policy was in place during May 2014. The only open question, therefore, is whether Huntington has created a genuine issue of material fact as to whether a loss occurred and whether it resulted from the hail storms in May 2014. Again, the issue of whether the loss resulted from the hail storms is somewhat intertwined with the question whether Mid-Century can demonstrate that the loss resulted from an excluded cause. Mid-Century argues that it "can point to unrebutted evidence" that other causes such as "hail or wind outside the policy period or wear and tear, deterioration, or faulty workmanship" may be responsible for some or all of Huntington's damages. Def.'s Mem. of Law 10.
Huntington's evidence that it suffered a loss and that the May 2014 storms were the cause of that loss comes primarily from a series of expert reports. The first was produced by MetLoop Precision Weather Technologies ("MetLoop"); it was written by Nance Koslik, and reviewed and quality controlled by Rocco Calaci, who is an expert witness for Huntington.5 The MetLoop report concluded that on May 12, 2014, a severe thunderstorm passed over Huntington's property, and hail of up to 2 inches in diameter fell on the property. See Ex. 2 at 20, ECF No. 52-2. Similarly, it determined that on May 20, 2014, two more hail storms passed over the same area, and hail of up to 1.25 inches in diameter fell on the property during each. Id.
The second report was completed by Martin Shields, an engineer and principal at Shields Engineering Group, Inc. Shields conducted a roofing and exterior siding inspection at the Huntington property. This involved a visual inspection of all of the buildings on the property and a physical inspection of 22 of the buildings. See Pl.'s Statement of Additional Material Facts ¶ 38. Shields marked test squares of 10 feet by 10 feet on 17 of these buildings and found an average of between 6 and 8.7 hail impacts per test square, depending on the direction of the slope of each roof. See Ex. 22 at 2, 6, ECF No. 64-23. Shields also reported finding hail-related impact dents on the aluminum siding on all sides of all of the buildings he inspected. See id. at 9. Based on these observations, and extrapolating based on the physical proximity of all of the buildings on the property, Shields concluded that "[a]s a result of the subject 2014 storm(s), hail damaged the exteriors of the roofs, appurtenances, and siding of the named buildings in the complex," and recommended full replacement *698of the roofs and siding on the property. Id. at 11.6
To summarize, Huntington has presented evidence that hail storms took place in May 2014 and that these storms caused damage to the roofs and siding of its buildings. This is sufficient to establish a prima facie case on the issue of whether the loss resulted from a fortuitous event. Harbor House Condo. Ass'n v. Mass. Bay. Ins. Co. , 703 F.Supp. 1313 (N.D. Ill. 1988), aff'd , 915 F.2d 316 (7th Cir. 1990), which Mid-Century relies on, is not to the contrary. That case involved alleged freezing damage to the pipes in a condominium association that contained 278 units. The plaintiffs were only able to locate pipe damage in 23 of those units. The Harbor House court determined that this was insufficient evidence to allow a jury to conclude that a fortuitous event had damaged the rest of the system. See id. at 1318. It wrote that "the fact that freezing caused damage to a portion of the heating System is probative of the cause of damage to the entire System only if the record evidence indicates that the damaged portion is representative of the entire heating System." Id. In the present case, however, there is good reason to believe that the buildings chosen were in fact representative of the entire system. None of the information in the record put forward by either side indicates that the storm passed over only a fraction of the property. In other words, in this case, all of the buildings are representative of the entire system; there is no reason to believe that any building was not similarly situated from any other with respect to the hail storms. Nor has Mid-Century demonstrated that the sampling and extrapolation methods employed in Shields's report fall short as a measure of standard professional practice. For this reason, the present case is distinguishable from Harbor House .
The burden, then, shifts to Mid-Century "to affirmatively demonstrate that the loss resulted from a peril expressly excluded from coverage." Gulino , 2012 IL App (1st) 102429 ¶ 16, 361 Ill.Dec. 420, 971 N.E.2d at 527. Mid-Century has argued that some or all of the damage may have resulted from non-covered causes. For example, Mid-Century's meteorological expert, Jason Webster, concluded that a previous hail storm took place in April 2010-before the policy period began-that dropped hail of up to 1.75 inches in diameter on the property, and that no hail greater than 0.75 inches fell there on the dates in question in May 2014. See Expert Report of Jason D. Webster 41, ECF No. 53-1. Huntington responds, however, that various reports after 2010-including an underwriting survey conducted by Mid-Century itself in July 2013-did not identify any wind or hail damage or other depreciation in the quality of the roofs, and specifically left a box identifying "Windstorm/Hail" damage unchecked. See Response 15; Loss Control Survey 6, ECF No. 64-5.
This case thus presents a single, central factual dispute-whether the May 2014 storms were the cause of the damage to Huntington's property-along with a series of other, related factual disagreements (such as whether a hail storm in 2010, or some other cause, could have contributed to the damage). These fact disputes can only be resolved at trial. Mid-Century's other arguments-for example, that Huntington has failed to identify any witnesses to the alleged hail storms, see Reply 11-are relevant to those factual issues and speak to the weight of the evidence to be assessed at trial. They are not, however, sufficient to establish that Mid-Century is entitled to judgment as a matter of law. Based on the entirety of the record, and construing all disputed facts and making *699all reasonable inferences in Huntington's favor, the Court concludes that a jury could reasonably determine that Huntington's presentation of evidence is sufficient to demonstrate that the May 2014 hail storms were the cause of the damage to its property. Similarly, a jury could reasonably conclude that Mid-Century's arguments regarding the other potential causes of damage are not persuasive, leaving the May 2014 hail storms as the only or primary cause. Because a jury could fairly reject Mid-Century's contention that other causes led to the damage, Huntington need not "provide evidence allowing a jury to segregate covered from non-covered losses," Def.'s Mem. of Law 10, as Mid-Century contends. As a result, it has also met its burden to establish its damages to a reasonable degree of certainty.7 It will, of course, bear the burden of ultimately proving those damages at trial, but it has done enough at this stage in the process. Accordingly, Mid-Century's motion for summary judgment is denied.
II. Daubert Motions
The question of when expert testimony is admissible is governed by Fed. R. Evid. 702. The modern version of Rule 702 was amended in large part due to the Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and reads as follows:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. As the Seventh Circuit has written, the framework established by Rule 702 and Daubert demands a three-step analysis. It requires that "the witness must be qualified as an expert by knowledge, skill, experience, training, or education, the expert's reasoning or methodology underlying the testimony must be scientifically reliable, and the testimony must assist the trier of fact to understand the evidence or to determine a fact in issue." Ervin v. Johnson & Johnson, Inc. , 492 F.3d 901, 904 (7th Cir. 2007) (citations and internal quotation marks omitted).
In the present case, each party has filed one Daubert motion to bar the testimony of an expert proffered by the other side. Huntington has moved to exclude the testimony of Mid-Century's meteorology expert, Jason Webster, while Mid-Century has moved to exclude the testimony of one of Huntington's experts, Rocco Calaci.
*700Both Webster and Calaci are meteorologists who have completed reports regarding the alleged hail storms that took place in May 2014. In both cases, it is uncontested that the respective experts' testimony would assist the trier of fact to determine a fact in issue: namely, whether hail fell on the dates at issue and whether it could have caused damage to Huntington's property. The disputes between the parties revolve around the first two prongs of the Daubert analysis.
A. Motion to Exclude Jason Webster
Huntington's motion challenges both Webster's qualifications and the scientific reliability of the methods he has utilized. With respect to Webster's qualifications, Huntington's chief argument is that while Webster may be qualified to be a meteorologist in general, he is not qualified to conduct the specific type of analysis at issue in this case. Both Webster's and Calaci's reports involve the use of forensic meteorology; that is, the application of science to reconstruct a past event and determine what the weather conditions were like at a previous point in time. See Mot. to Bar Expert Opinions of Jason Webster 5, ECF No. 53 ; Def.'s Mot. to Exclude Rocco Calaci 4-5, ECF No. 52. For both reports, a primary source of data is the Next Generation Weather Radar (NEXRAD), a radar utility operated by the National Weather Service. See Mot. to Bar Expert Opinions of Jason Webster 2 n.1.
Webster obtained a B.S. in Atmospheric Studies from Creighton University in 2008 and a Ph.D. in Meteorology from the University of Reading in 2014. Id. at 5. He is the founder and sole employee of AtmoSci, LLC, a meteorology consulting firm that he established in 2009. Id. at 6; Def.'s Resp. to Pl.'s Mot. to Bar Dr. Jason Webster 2, ECF No. 61. Huntington contends, however, that Webster "lacks the qualifications and experience necessary to provide reliable opinions on forensic meteorology radar analysis utilizing NEXRAD data." Mot. to Bar Expert Opinions of Jason Webster 6. It asserts that Webster has limited academic experience in forensic meteorology and little practical experience with the use of NEXRAD data. See id. at 5-6.
As a general matter, however, while experts' lack of specialization in a specific subfield or technology may affect the weight of the opinions they express, it does not preclude the admissibility of those opinions. See, e.g. , Schuring v. Cottrell, Inc. , 244 F.Supp.3d 721, 729 (N.D. Ill. 2017) ; Lott v. ITW Food Equip. Grp. LLC , No. 10-cv-1686, 2013 WL 3728581, at *19 (N.D. Ill. July 15, 2013) ; Loeffel Steel Prods., Inc. v. Delta Brands, Inc. , 372 F.Supp.2d 1104, 1113 (N.D. Ill. 2005). A court "should consider a proposed expert's full range of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area." Smith v. Ford Motor Co. , 215 F.3d 713, 718 (7th Cir. 2000).
A "person who holds a graduate degree typically qualifies as an expert in his or her field." Khairkhwa v. Obama , 793 F.Supp.2d 1, 11 (D.D.C. 2011). As noted above, Webster possesses a Ph.D. in Meteorology, and Huntington does not contest that he is qualified as a meteorologist more generally. The issues Huntington raises regarding Webster's alleged lack of experience with NEXRAD data may affect the weight that his opinions should be given at trial, but they do not preclude their admissibility. The Court also observes that Webster has completed roughly 15 to 20 expert reports for clients regarding forensic meteorology, of which he estimates that the majority involved hail storms. See Dep. of Jason Webster 44:11-45:1, ECF No. 53-2. Accordingly, the Court concludes, based on the full range of *701Webster's academic and professional experience, that he is qualified to render the opinions discussed in his report and testify regarding the subjects at issue in this case.
Huntington also challenges the methods Webster employed in composing his 40-plus page report. The Supreme Court has held that courts may bar testimony when there is "simply too great an analytical gap between the data and the opinion proffered," and that courts are not required to admit "opinion evidence that is connected to existing data only by the ipse dixit of the expert." Gen. Elec. Co. v. Joiner , 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). That is essentially what Huntington accuses Webster of doing. Webster has expressed two primary opinions: first, that hail between 1 inch and 1.75 inches fell at the Huntington property in April 2010, and second, that no hail larger than 0.75 inches fell on the dates in question in May 2014. See Expert Report of Jason D. Webster 41. According to Huntington, these opinions are not scientifically reliable because Webster failed to clearly explain what the methodology he used in writing the report actually was. In other words, Webster "was unable to adequately explain how he came to the conclusions he did and why his methodology was acceptable in this field." Mot. to Bar Expert Opinions of Jason Webster 8.
Huntington's argument is entirely unconvincing. As Mid-Century argues in its response brief, Webster's methodology was sound and is generally accepted within the meteorological community. Indeed, Webster's methodology was similar to that employed by Huntington's expert, Calaci (though Webster opined that Calaci's methodology was nevertheless flawed), and drew on a number of the same data sources. Webster's report and the response brief both state that his analysis was guided by Federal Meteorological Handbook No. 11 ("FMH-11"), which is published by the Office of the Federal Coordinator for Meteorological Services and Supporting Research. The stated purpose of the handbooks in this series is to provide "standards and procedures to facilitate the efficient collection, sharing, and use of meteorological information by agencies of the federal government and private industry." Office of the Federal Coordinator for Meteorological Services and Supporting Research, Federal Meteorological Handbook No. 11 : Part A: System Concepts, Responsibilities, and Procedures 1 (January 2016), http://www.ofcm.gov/publications/fmh/FMH11/2016FMH11PTA.pdf. As the response brief explains, Webster drew on preliminary storm reports and other sources to identify potential hail events. Once a potential hail event was identified, Webster reviewed NEXRAD radar data from sites in the area of Huntington's property to understand the characteristics of the storm cell, as well as various "products" created from that data. In analyzing the weather conditions on May 12, 2014, for example, Webster analyzed the measures for Composite Reflectivity, Base Reflectivity, Differential Reflectivity, Correlation Coefficient, and Differential Phase. See Def.'s Resp. to Pl.'s Mot. to Bar Dr. Jason Webster 7-8; Expert Report of Jason D. Webster 28-30. These metrics, according to Webster, did not support the conclusion that large hail fell on the property on that date.
Huntington's reply brief inexplicably ignores most of this. It does not contest that the products described in FMH-11 and in the previous paragraph are appropriate ones to consider in conducting a forensic meteorological analysis. Nor does it argue that Webster's report failed to actually draw on these sources. Nor has it pinpointed any particular steps that Webster should have taken in conducting his analysis but did not. Instead, it simply reasserts *702its argument that Webster's methodology was unacceptably vague. The Court rejects this conclusion. FMH-11 is self-evidently a scientifically reliable source, and Webster's report adequately explains how he drew on the inputs described in the handbook to reach his conclusions.
Finally, Huntington notes that Webster did not actually reach a definite conclusion about whether hail fell on the property on the dates at issue, and instead determined only that there was no hail above 0.75 inches in diameter. To the extent that this is intended as an argument against the reliability of Webster's testimony, it must also be rejected. As the Supreme Court made clear in Daubert , the focus of the inquiry mandated by Rule 702 "must be solely on principles and methodology, not on the conclusions that they generate." Daubert , 509 U.S. at 595, 113 S.Ct. 2786. Courts are directed to consider the error rates of particular scientific techniques. See id. at 594, 113 S.Ct. 2786. But this is quite distinct from considering the margins of error in a purported expert's ultimate conclusions. The fact that Webster's conclusions rule out certain outcomes (e.g. , hail above 0.75 inches in diameter) without definitively stating whether hail below that diameter fell is not an argument against the scientific reliability of his methods. Huntington's motion to bar Webster's testimony is therefore denied.
B. Motion to Exclude Rocco Calaci
On the other side, Mid-Century's motion to exclude Huntington's expert, Rocco Calaci, focuses solely on the reliability of Calaci's methods. Calaci has more than twenty years' experience in the field of forensic meteorology and has provided sworn expert testimony on more than fifty occasions. Huntington Chase's Opp. to Def.'s Mot. to Exclude Rocco Calaci 2, 4, ECF No. 62. Mid-Century has not alleged that Calaci is not qualified to testify on the subject, nor would it have been likely to succeed if it had. Rather, it has challenged the methods that Calaci used in this particular report as unreliable.
Calaci has opined that on May 12, 2014, a severe thunderstorm passed directly over the Huntington property from 6:20 p.m. to 6:30 p.m. and that during this storm, hail up to 2 inches in diameter fell onto the property. Calaci also opines that on May 20, 2014, two severe thunderstorms passed over the property, one from 9:45 p.m. to 10:10 p.m. and the second from 11:00 p.m. to 11:40 p.m., each producing hail of up to 1.25 inches in diameter that fell on the properties.
Calaci's report explaining the methodology he employed in reaching these opinions is similar to Webster's in structure, approach, and scope. His report also provides a forensic meteorological investigation into the events of May 2014 at the Huntington property. Like Webster, Calaci obtained and analyzed information from a variety of sources, including NEXRAD. See Ex. 2 at 2, ECF No. 52-2. Calaci, too, references FMH-11 multiple times in his report as a guide for how certain measures should be interpreted. See id. at 4, 10. In addition, some of the same metrics are analyzed in both reports.
Mid-Century's central argument against Calaci is similar to one of the arguments that Huntington made against Webster. That is, Mid-Century also refers to the Supreme Court's instruction that courts should be cautious of expert testimony where there is "simply too great an analytical gap between the data and the opinion proffered" or when opinion evidence is "connected to existing data only by the ipse dixit of the expert." Def.'s Mot. to Exclude Rocco Calaci 3 (quoting Joiner , 522 U.S. at 146, 118 S.Ct. 512 ). It contends that Calaci's testimony falls under this category. In particular, Mid-Century focuses *703on one specific alleged gap in Calaci's report. The report concluded that on May 12, 2014, hail of up to 2 inches in diameter fell on the Huntington property, and that hail of up to 1.25 inches in diameter fell there on May 20, 2014. Mid-Century points out that the sources of information that Calaci was drawing on all showed the probability of hail aloft. See id. at 13. It argues that the report provides no basis to explain how the probability of hail of a certain size aloft translates to a certain likeliness that hail of the same size fell to the surface. Id. at 15. Huntington, in turn, responds that this simply represents the omission of basic meteorological principles: namely, that falling hail melts more slowly going through cold air (as was present here) and that it melts at a reliable rate. See Huntington Chase's Opp. to Def.'s Mot. to Exclude Rocco Calaci 12.
Mid-Century's argument concerning Calaci's opinion that the thunderstorms in question produced hail fall well short of demonstrating that Calaci's methodology was unreliable. Calaci, in short, used a variety of models and data sources that are all conceded to be relevant to an inquiry about the occurrence of hail at a particular location and time. As noted above, the type of analysis that Calaci and Webster did in their respective reports is essentially the same: they both conducted forensic meteorological reconstructions of past events, based on NEXRAD data and other sources. It is not seriously contested either that Calaci is qualified as an expert or that the general approach that he and Webster have both followed is scientifically reliable.
Mid-Century's argument has more force in the context of Calaci's estimates of the size of the hail that reached ground level during these storms. While his report adequately demonstrates the basis for his estimates of the size of the hail produced aloft, it supplies little explanation of how he determined the size of hail hitting the ground. His deposition testimony provides further clarification on this point, see Dep. of Rocco Calaci 117:14-119:7, ECF No. 52-1,8 but it bears noting that in any event Calaci's report stops short of stating that hail of any specific size hit the property. What Calaci says in his report is that hail "up to" 2 inches in diameter hit the property. In other words, as he clarified in his deposition, that is the maximum size of any hail that hit the property. Id. at 36:23-24. While it is a fair reading of Calaci's testimony that he takes the view that some hail *704of that size hit the property, his opinion does not purport to otherwise quantify the range of size of hail hitting the property or the concentrations along the range of sizes that hit the property. To some degree, then, Mid-Century is indicting Calaci for failing to explain the basis of an opinion he didn't offer.
More generally, what Mid-Century is objecting to is a specific analytical move that Calaci made in the process of following a generally acceptable method. While there may be somewhat of an "analytical gap" present, it is not so "great" as to merit Calaci's exclusion. To the extent that this criticism goes to the strength of Calaci's conclusions, a judge "should permit the jury to weigh the strength of the expert's conclusions, provided such shortcomings are within the realm of a lay juror's understanding." Stollings v. Ryobi Techs., Inc. , 725 F.3d 753, 766 (7th Cir. 2013). The issue of whether and to what degree Calaci's extrapolation from the probability of hail aloft to the probability of hail at ground level diminishes the soundness of his conclusions is well within a jury's capacity to assess. In this context, "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." Daubert , 509 U.S. at 596, 113 S.Ct. 2786. Mid-Century's motion to exclude Calaci is accordingly denied.
* * *
For the reasons stated above, Mid-Century's motion for summary judgment, Mid-Century's Daubert motion, and Huntington's Daubert motion are all denied. A status hearing is set for April 17, 2019, at 9:00 a.m.
Huntington is an Illinois not-for-profit corporation with its principal place of business in Illinois. Petition for Removal ¶ 6, ECF No. 1. Mid-Century is a California corporation with its principal place of business in California. Id. ¶ 7. As Huntington's claim under the policy was for approximately $ 6.4 million, the amount in controversy easily exceeds the jurisdictional minimum. See id. ¶ 10.
Mid-Century also does not appear to have pressed the argument that Huntington's failure to detect the alleged damage during the first four months after May 2014 was unreasonable or represented a lack of due diligence such that it should be precluded from recovering.
Beyond these points, Mid-Century's insureds would no doubt be pleased to learn that the company encourages the submission of claims without regard to whether there is a valid basis in fact supporting the claim. It would be strange, indeed, to penalize Huntington for conducting an investigation to assess whether it had a legitimate basis on which to submit a claim to its insurer; that is hardly conduct that should be criticized or that should result in a loss of coverage.
This does not prevent Mid-Century from reasserting its argument that notice was not provided within a reasonable time at trial if it can adduce additional admissible evidence that would support such a claim.
Mid-Century has moved to bar Calaci's testimony as unreliable. The Court addresses, and denies, that motion infra at 702-04.
Mid-Century has not challenged the admissibility of Shields' testimony under Rule 702.
Mid-Century also raises the issue of the 12 roofs that Huntington replaced before it notified Mid-Century of the potential damage. While this may affect the ultimate value of the damages to be assessed, it does not provide a reason to grant summary judgment. First, the fact that Huntington replaced the 12 roofs is not a valid reason for Mid-Century to have denied the entire claim. Even though Mid-Century could have appropriately denied the claim with respect to those roofs for the reasons discussed supra at 694-95, there is still a genuine dispute of material fact as to whether Mid-Century breached the contract by denying the claim in full. Second, with respect to damages, even without those 12 roofs accounted for, Huntington has still provided an adequate basis for the calculation of its damages-namely, the value of the remaining 41 roofs, along with the value of the siding.
Mid-Century's argument about the relationship between Calaci's report and his deposition testimony is not well-taken. It is true, as Mid-Century points out, that "Rule 26(a)(2) does not allow parties to cure deficient expert reports by supplementing them with later deposition testimony." Ciomber v. Coop. Plus, Inc. , 527 F.3d 635, 642 (7th Cir. 2008). But an expert report need not cover every detail of what an expert might say in his or her forthcoming testimony. The purpose of an expert report "is not to replicate every word that the expert might say on the stand. It is instead to convey the substance of the expert's opinion ... so that the opponent will be ready to rebut, to cross-examine, and to offer a competing expert if necessary." Walsh v. Chez , 583 F.3d 990, 994 (7th Cir. 2009). The principal case that Mid-Century cites on this point, Ciomber , dealt with an extreme situation where the expert report was "undeveloped" and "woefully deficient, and any argument to the contrary would have been frivolous." Ciomber , 527 F.3d at 641. The exclusion of the expert's subsequent deposition testimony was appropriate because "the expert clearly deviated from the established scope of his expected opinion." Metavante Corp. v. Emigrant Sav. Bank , 619 F.3d 748, 762 (7th Cir. 2010) (describing Ciomber ). That is not the case here. Calaci's deposition testimony does not introduce new opinions or issues that are not fairly within the scope of his report. Nor is the report so "undeveloped" that it would have failed to provide notice of the subject or content of his testimony. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2263281/ | 27 F.Supp. 554 (1939)
UNION CENTRAL LIFE INS. CO.
v.
BURGER et al.
District Court, S. D. New York.
March 14, 1939.
*555 House, Grossman, Vorhaus & Hemley, of New York City (David Vorhaus and Sidney Greenman, both of New York City, of counsel), for plaintiff.
Joseph Burger, of New York City, for defendants.
COXE, District Judge.
These are motions by the defendants (1) to dismiss the complaint for insufficiency, and (2) for an order granting a jury trial.
The suit is in equity to cancel and rescind a life insurance policy for false representations and false warranties, and on the further ground that the insured was not in good health when the policy was delivered.
The complaint alleges that the policy was issued on Sept. 30, 1936, and contains a clause making it incontestable after two years from the date of issue; that the plaintiff has been advised that the insured died on March 10, 1938; and that "no action has been commenced against the plaintiff on said policy and that plaintiff has no adequate remedy at law". The present suit was commenced on Aug. 25, 1938.
The defendants in their answer not only deny the material allegations of the complaint but also set up a counterclaim, in which affirmative judgment is asked for the amount of the accrued benefits under the policy. There is attached to the answer a demand that "all issues raised herein shall be tried by the jury". The plaintiff has replied joining issue on the counterclaim.
The motion to dismiss is based on the contention that the complaint should have alleged in so many words that the beneficiaries might delay the commencement of action until after the period of contestability had expired. What such an allegation would have added to the pleading is not apparent. The complaint alleges facts showing that the policy will become incontestable on Sept. 30, 1938; it also alleges that, although only a little over a month remains of the period of contestability, the beneficiaries have brought no action on the policy. I think this is clearly enough to support an equity suit for cancellation and rescission. American Life Ins. Co. v. Stewart, 300 U.S. 203, 57 S.Ct. 377, 81 L.Ed. 605, 111 A.L.R. 1268.
The motion for a jury trial remains for consideration. Under the old Equity Rule 30, 28 U.S.C.A. following section 723, a defendant in an equity suit was not obliged to set up a legal counterclaim, but if he did so and went to trial, he was held to have waived a jury trial. American Mills Co. v. American Surety Co., 260 U.S. 360, 43 S.Ct. 149, 67 L.Ed. 306. Rule 13(a) Rules of Civil Procedure, 28 U.S.C.A. following section 723c, now makes it compulsory to plead a legal as well as an equitable counterclaim "if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim" (see Notes of Advisory Committee on Rules). The defendants were, therefore, required to set up their legal counterclaim in the answer. In thus doing what they were compelled to do, I do not think that they should be held to have waived a jury trial. It has, however, always been recognized that in cases of this kind, the equity issue should be disposed of first; Jefferson Standard Life Ins. Co. v. Keeton, 4 Cir., 292 F. 53; American Mills Co. v. American Surety Co., supra, 260 U.S. at page 364, 43 S.Ct. at page 149, 67 L.Ed. 306. This probably will determine all of the issues in the case. If it does not, the defendants may proceed with their law action on the counterclaim.
The motion to dismiss the complaint is denied. The motion for a jury trial is also denied with permission to proceed at law in the event that the trial of the equity issue does not end the litigation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263301/ | 27 F.Supp. 1014 (1939)
In re CEDERBAUM.
District Court, S. D. New York.
May 23, 1939.
*1015 Lee Epstein, of New York City, for bankrupt (on this motion only).
Herman Koenigsberg, of New York City, for judgment creditor.
CONGER, District Judge.
This is an application on the part of the bankrupt herein for an order fixing the time within which his creditors may file objections to his discharge.
The adjudication was had on September 14, 1937. This petition was made and filed after eighteen months had elapsed since the petitioner's adjudication.
The problem which confronts the court is whether the provisions of Section 14a of the amendatory act, 11 U.S.C.A. § 32(a), shall be applied in a case where, on the effective date of the amendatory act, September 22, 1938, the time in which the bankrupt could file an application for a discharge under former Section 14a had expired.
Former Section 14a read as follows: "Any person may, after the expiration of one month and within twelve months, subsequent to being adjudged a bankrupt, file an application for a discharge in the court of bankruptcy in which the proceedings are pending, if it shall be made to appear to the judge that the bankrupt was unavoidably prevented from filing it within such time, it may be filed within but not after the expiration of the next six months." 44 Stat. 663, 11 U.S.C.A. § 32(a).
Section 14a of the amendatory act, so far as material, provides that: "The adjudication of any person, except a corporation, shall operate as an application for a discharge * * *."
And Section 14b of the same act reads as follows: "After the bankrupt shall have been examined, either at the first meeting of creditors or at a meeting specially fixed for that purpose, concerning his acts, conduct, and property, the court shall make an order fixing a time for the filing of objections to the bankrupt's discharge, notice of which order shall be given to all parties in interest as provided in section 58 [94] of this Act [title]. Upon the expiration of the time fixed in such order or of any extension of such time granted by the court, the court shall discharge the bankrupt if no objection has been filed; otherwise, the court shall hear such proofs and pleas as may be made in opposition to the discharge, by the trustee, creditors, the United States attorney, or such other attorney as the Attorney General may designate, at such time as will give the bankrupt and the objecting parties a reasonable opportunity to be fully heard."
Section 6b of the amendatory act of the Chandler Act, 11 U.S.C.A. § 1 note, reads as follows: "Except as otherwise provided in this amendatory Act, the provisions of this amendatory Act shall govern proceedings so far as practicable in cases pending when it takes effect; but proceedings in cases then pending to which the provisions of this amendatory Act are not applicable shall be disposed of conformably to the provisions of said Act approved July 1, 1898, and the Acts amendatory thereof and supplementary thereto."
The first question to be decided is whether amended Section 14a can be applied, and if so, whether it is practicable to apply such provisions to the instant case.
It is settled that the failure of a bankrupt to apply for a discharge in the prior proceedings precludes him from procuring a discharge in subsequent proceedings *1016 from the debts scheduled and provable in the prior proceedings. Armstrong et al. v. Norris, 8 Cir., 247 F. 253, 40 Am.Bankr. Rep. 735; In re Moore, et al., D.C., 36 F.2d 429; In re McMorrow, D.C., 52 F.2d 643, 18 Am.Bankr.Rep.,N.S., 607; In re Brislin, D.C., 10 F.Supp. 181, 28 Am.Bankr.Rep.,N. S., 433. Such failure to apply for a discharge is a conclusive determination as to all parties then before the court, on the principle of res adjudicata. In re Von Borries, D.C., 168 F. 718, 21 Am.Bankr.Rep. 849. The failure of a bankrupt to file his application for discharge within the specified time is in effect a denial of his right to a discharge and in effect a judgment against him by default, which the court is powerless to open. In re Moore, supra.
In Armstrong et al. v. Norris, supra, the court said [247 F. 255, 40 Am.Bankr. Rep. 735]: "Furthermore, a discharge must be affirmatively sought, as prescribed in the Bankruptcy Act. It is not granted as of course without application, and a failure to apply has the same effect as a denial of the right. The right is foreclosed by default, and will not thereafter be granted in another proceeding. Kuntz v. Young [8 Cir.], 65 C.C.A. 477, 131 F. 719; Siebert v. Dahlberg [8 Cir.], 134 C.C.A. 460, 218 F. 793, and cases cited."
The general view, that a failure to apply for a discharge within the statutory period bars an application under a second proceeding for a discharge from the same debts, is supported by obiter, in Freshman v. Atkins, 269 U.S. 121, 46 S.Ct. 41, 70 L.Ed. 193, where the court said: "Denial of a discharge from the debts provable, or failure to apply for it within the statutory time, bars an application under a second proceeding for discharge from the same debts." (Cases cited).
It is clear from the foregoing that the rights of all parties became fixed and determined at the expiration of the statutory time in which the application for a discharge could be filed. The rights of creditors as against the bankrupt became vested, and the bankrupt thereafter could never obtain a discharge from the debts provable in that bankruptcy proceeding.
Statutes will be interpreted prospectively unless the language admits of no other construction. In re John G. Gasteiger & Co., Inc., 2 Cir., 25 F.2d 642, 643. In that case, from an order affirming an order of the Referee in Bankruptcy disallowing priority to the claim of the Fidelity & Deposit Company of Maryland, the claimant appealed. Under the law as it stood, when the petition in bankruptcy was filed, when the order of adjudication was entered, and when the time expired within which claims could be filed, the claim had no priority. The appellant contended, however, "that, since by the amendment of May 27, 1926, to section 64(b) (7) of the Bankruptcy Act (11 U.S.C.A. § 104), claims of the United States were preferred, and since, under section 18 of the same statute (11 U.S.C.A. § 1 note) it was to `govern' pending cases, `so far as practicable and applicable'", and since claimant was subrogated to the claim of the United States, which it had paid, the order was wrong. L. Hand, Circuit Judge, speaking for the Court said that creditors' rights had been settled in accordance with the law as it stood prior to the time when the amendment was passed, and that the Court was to decide whether the change in Section 64b (7) was "practicable and applicable" in the situation before it. After pointing out that the canon was well settled which interpreted statutes prospectively, unless the language used admitted of no other construction, and stating his reasons therefor, he said: "*** we are not sure that the clause, `so far as practicable and applicable,' means to go further than to make the amendments `applicable' to pending proceedings in matters of procedure, though perhaps it may. Even if it does, it gives the courts a wide discretion in determining when it is `practicable' so to apply it, and by `practicable' we understand that we must decide whether it is just to disturb vested rights."
Judge Hand, after a discussion of the problem, then said: "For these reasons, it seems to us that it is not `practicable' to apply retroactively section 64(b) (7) to cases where the claims have all been filed and the rights all fixed."
The question of "practicability" must be determined by the effect of the application of the provisions of the amendment upon vested rights, although it would appear that in a case such as this, the provisions of the amendatory act cannot be applied and no question of practicability can be involved.
In the matter of In re Messinger, 2 Cir., 29 F.2d 158, 159, 68 A.L.R. 1205, the question arose as to "whether the life insurance policies made payable to the bankrupt's wife, but in which he had reserved the *1017 right to change the beneficiary, became exempt from the claims of his creditors under the provisions of section 55a of the state Insurance Law [Consol.Laws, c. 28]", which became effective March 31, 1927.
In discussing the applicability of that section, Augustus N. Hand, Circuit Judge, speaking for the Court, said: "Section 55a of the state Insurance Law took effect March 31, 1927. It is unlikely that there were not creditors existing at that time, seeing that bankruptcy followed so soon after. To the creditors whose claims arose prior to the passage of the law, it would not apply. Not only is a retroactive statute which disturbs existing rights unlikely to have been intended, but a state law which deprives existing creditors of their rights to resort to property for payment of their claims would impair the obligation of contracts, and contravene section 10, article 1 of the Federal Constitution [U.S.C.A.]. * * * Section 55a should be considered so as not to operate retroactively, and to affect only such claims as arose after March 31, 1927."
In the case of In re Photo Electrotype Engraving Co., D.C., 155 F. 684, 686, a salesman not entitled to priority at the time of the filing of the petition in bankruptcy or of the subsequent adjudication thereafter and during the pendency of the bankruptcy proceeding, became entitled to priority therefor, as a result of the amendment of 1906. The Court, denying priority to his claim, held that the rights of all creditors are fixed according to the provisions of the law in effect at the date of the petition and subsequent adjudication, saying: "The amendment of 1906, if allowed to alter the rights of creditors in this proceeding, would take away property which the creditors were entitled to by the provisions of law existing at the time when this estate came under the administration of the bankruptcy court."
Section 14a as amended is procedural in terms. It modifies the old rule which provided that the bankrupt must file an application for a discharge by providing that the adjudication shall operate as an application for a discharge.
A procedural change cannot be applied unless there are substantive rights to which it may be applied. Here, the substantive rights of the parties have been finally determined just as effectively as if there had been an application for a discharge, hearing thereon and the entry of an order denying the discharge. There is no proceeding in the case to which the procedural change may be applied.
A case well illustrating the distinction between substantive and procedural rights and the applicability of amendments thereto, is In re Wyatt, D.C., 23 F.2d 350, 351. In that case the amendments to section 14b by the Act of 1926 were involved. The amendments became effective subsequent to the return date of the order to show cause why the discharge should not be granted to the bankrupt, but prior to any decision thereon. The amendatory act provided that it should govern "so far as practicable and applicable". The court held: "When the bankrupt's application for discharge was filed, he was entitled to his discharge so far as this provision of the act is concerned, unless he had destroyed his books with intent to conceal his financial condition, which is a very different case from the mere destruction of records without such intent. The statute ought not to have a retroactive operation unless by its terms this is clearly imperative."
The Virginia court, however, in the same proceeding, applied that portion of the amendment to Section 14b which shifts the burden of proof to the bankrupt once the trustee has shown reasonable grounds for believing the bankrupt guilty of any of the acts therein forbidden and said it "* * * is valid and applicable thereafter in all cases whether begun before or after its passage. * * *" To same effect, see In re Jones, D.C., 15 F.2d 692.
In the matter of In re Old Algiers, Inc., 2 Cir., 100 F.2d 374, 375, the question arose as to the application of Sections 242, 246 and 247 of the Chandler Act, 11 U.S. C.A. §§ 642, 646, 647, to a case where the estate was still in the course of administration, and the time for filing claims did not expire until December 10, 1938. With respect to the test of practicability to be used, the Court said: "In our opinion the test of practicability should be whether the new provisions, for aught that has happened in the pending proceedings, can be applied as fairly and conveniently as they could be had the proceeding been started within three months of the effective date of the Act in which event the new provisions would indubitably control by reason of section 276(c) (1), 11 U.S.C.A. § 676(c) (1). If, for example, administration had progressed so far that the assets of the estate had been distributed by way of dividends *1018 to creditors, it would be neither fair nor convenient to require creditors to return the dividends in order that fees might be paid pursuant to section 246; it would not be `practicable' to apply the new provision. But where, as in the present case, the trustee still has funds in hand and the time for proving claims of creditors has not expired, fees to which the appellants may be entitled can apparently be as conveniently and as justly paid out of the estate as if the proceeding had been begun after June 22, 1938. Under such circumstances, it would seem to be `practicable' to apply the amendatory provisions."
In German American Import Corp.,[1] No. 63026, Southern District of New York, a motion was made to disallow priority to claims of the American Liability Insurance Company and the Century Indemnity Company. An involuntary petition had been filed in that case on August 23, 1935, followed by an adjudication on August 26, 1935, and the claims in question had been filed within the statutory period and were entitled to priority under the former provisions of Section 64. The motion was denied by Referee John E. Joyce who said: "The sequestration of assets by a court creates a fund to be divided under the law, as it then exists. In re Inland Dredging Corp. [2 Cir.], 61 F.2d 765 [88 A.L.R. 254]. When the Amendatory Act was passed, the time to prove claims had long since expired, and the rights of creditors had been fixed in accordance with the then existing law. Re John G. Gasteiger & Co. [2 Cir.], 25 F.2d 642. It is not practicable to apply the Amendatory Act if vested rights must be disturbed."
In Great Northern Hat Co., Inc.[1] No. 66062, Southern District of New York, Referee Kurtz denied a similar application, relying upon the opinion of Referee Joyce in the Matter of German American Import Corp., supra, which was attached to and made a part of the record of the case before Referee Kurtz. A petition to review the order of Referee Kurtz was denied by Robert P. Patterson, Circuit Judge, then District Judge, who sustained the order of the Referee.
Moreover, the judges of this Court have construed Section 14a as amended to be inapplicable to cases in which the order of adjudication had been entered prior to September 22, 1938. Bankruptcy Rule 19a of this Court deals with the procedure in cases of discharges of bankrupts adjudicated on and after September 22, 1938, and Bankruptcy Rule 19 deals with procedure in those cases in which the order of adjudication had been entered prior to September 22, 1938.
There is no difference in principle, and it can make no difference in the result, whether the eighteen month period had expired on September 22, 1938, or the twelve month period had expired and the bankrupt was not "unavoidably prevented" from filing his application within the twelve month period. In the case where the bankrupt was not "unavoidably prevented" from filing his application for a discharge within the twelve month period, at the expiration of such period, the rights of all parties had become fixed and determined, for under the decisions, the Court was powerless to permit the filing of an application within the additional six month period.
The application is accordingly denied. Submit order on notice.
NOTES
[1] No opinion for publication. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263308/ | 142 F.Supp. 259 (1956)
Albert P. DENIS and Denis Manufacturing Co., Inc.
v.
PERFECT PARTS, Inc.
Civ. A. No. 55-911.
United States District Court D. Massachusetts.
May 2, 1956.
*260 W. R. Hulbert, William W. Rymer, Jr., Fish, Richardson & Neave, Boston, Mass., for plaintiff.
Harry Price, New York City, Specially, A. W. Wunderly, Boston, Mass., of counsel, for defendant Perfect Parts, Inc.
ALDRICH, District Judge.
In this action for patent infringement defendant moves to quash the service, and moves to dismiss for improper venue. Defendant is a New York corporation dealing in auto parts and accessories. It has no employees, in the ordinary sense, in Massachusetts. It has a "sales representative" living in Greater Boston, hereinafter called salesman. Salesman solicits orders, on commission only. All orders are subject to acceptance in New York, and are filled from there. Salesman represents other companies in addition to defendant, and represents defendant in several other states, but his Massachusetts activities for defendant are regular and substantial. In addition to soliciting orders, he receives complaints, and renders some assistance in adjusting them. On occasion he carries samples of small parts and demonstrates them in connection with soliciting orders. He leaves catalogues and promotional material. From new customers he obtains credit information and forwards it to the defendant. Each month defendant furnishes salesman with a list of his customers who are delinquent. He makes some effort to collect these accounts, and not infrequently receives checks, which he forwards to New York. The fact that he is not obliged to do this, and does it only because all orders are subject to New York approval and further orders will not be accepted from persons on the delinquent list until past due accounts have been paid, does not alter the fact that he is, in part, engaged in collections for defendant's benefit.
*261 Even if mere solicitation of business is not enough (but cf. Lone Star Package Car Co. v. Baltimore & O. R. Co., 5 Cir., 212 F.2d 147), and "something more" is required, I find and rule that such existed, and that defendant at the time of service was doing business in Massachusetts and subject to process. International Harvester Co. v. Com. of Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479; Nichols v. Cowles Magazines, Inc., D.C.D.Mass., 103 F.Supp. 864; Id., D.C., 108 F.Supp. 883; Formmaster Corp. v. G. H. Bishop Co., D.C. S.D.N.Y., 138 F.Supp. 115; Wyshak v. Anaconda Copper Mining Co., 328 Mass. 219, 103 N.E.2d 230; Jet Manufacturing Co. v. Sanford Ink Co., 330 Mass. 173, 112 N.E.2d 252. The motion to quash the service must be denied.
A more difficult problem relates to venue. 28 U.S.C. § 1400(b) provides as follows:
§ 1400(b). "Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business."
As stated before, defendant is a New York corporation. I find that it does not come within the second clause of this section. Although salesman has his home in Massachusetts, customers do not come there. He operates principally out of his car. Defendant's name does not appear directly in connection with either his house or his car. It pays none of his rent or other expenses. So far as appears, it does not care where he lives. While one might say that if, because of salesman's activities, defendant is doing business in Massachusetts, salesman's own pied-a-terre is defendant's "regular and established place of business", a recent Massachusetts case indicates that this does not necessarily follow. Jet Manufacturing Co. v. Sanford Ink Co., 330 Mass. 173, 176, 112 N.E.2d 252. I feel that an established place of business requires something more evident and tangible than appears in this case.
With respect to the first clause of this section, defendant says that "resides" means an inhabitant, and that in the case of a corporation this is limited to the state of incorporation. Plaintiff says that a corporation now resides in every state in which it is doing business.[1] 28 U.S.C. § 1391(c). The question of whether § 1391(c) is to be read into § 1400(b) has vexed and divided the courts.[2] On defendant's side it is said that to interpret "resides" in the first clause as simply doing business "would result in partial if not complete emasculation" of the second, and more restrictive clause, C-O-Two Fire Equipment Co. v. Barnes, majority opinion, supra, note 2, 194 F.2d at page 413. While one may have a partial orchiectomy, "partial emasculation" is incorrect, both semantically and logically. The fact that a statute may mean less than at first appears is not to say that it is without force. The second clause has a clear purpose where defendant is an individual, or a partnership.[3] An interpretation rendering a statute meaningless is, of course, to be avoided, but I know of *262 no doctrine of general construction that requires an unexpressed exception to be read into one section merely to broaden the meaning of another. Eagle-Picher argues that § 1400 is a special act, and that a special act controls a general one.[4] I disagree as to the applicability of this principle. Whatever may be the history of its precursors, as presently set up § 1400(b) appears no more a special act than does any other section of the chapter. Nor is § 1391(c) a general act. It is not even a whole act. In terms it is but definitions for the remaining sections of the chapter. As pointed out by Lindley, C. J., dissenting in the C-O-Two case, supra, note 2, the Eagle-Picher rule re-writes § 1391(c) to say in effect, "for the purpose of every section of this chapter except § 1400(b), `resides' in the case of corporations means doing business."
For such interpolation of an unexpressed limitation there should be some clearly compelling warrant. The majority opinion in Eagle-Picher states that if warrant is not found on the basis of special versus general acts, it is found in the Reviser's Notes. Assuming, without deciding, that the statute is sufficiently ambiguous to permit such recourse, still it is not appropriate unless the Reviser's Notes are clear and unambiguous, or at least more clear and less ambiguous than the statute itself. With all deference, I do not find this to be the situation. It is true that the Reviser's Notes to § 1400(b) point out that this section is taken from § 109 of Title 28 U.S.C., 1940 ed., where instead of resident the word used was inhabitant, and state that as respects venue the two words are synonymous. It is true, also, that inhabitant as respects corporations was limited in § 109 to the state of incorporation. But so, too, it was then so limited with respect to all other actions. See Suttle v. Reich Bros. Construction Co., 333 U.S. 163, 166, 68 S.Ct. 587, 92 L.Ed. 614, rehearing denied 333 U.S. 878, 68 S.Ct. 900, 92 L.Ed. 1153. Section 1391(c) has now expressly changed that.[5] It is to be observed that the Reviser's Notes to § 1400 specifically refer to the note to § 1391. It scarcely seems that the Reviser was then forgetful of the fact that § 1391(c) broadened generally the meaning of resident in the case of corporations. In sum, I do not find in the Notes any clear or compelling ground to read into § 1400(b) an exception to the supplied definitions.
Finally, defendant argues that § 109 established a special policy for patent suits, and that this policy should be continued. The difficulty with this argument is that § 109 established a policy of wider venue for patent suits than for other causes of action. If the exact interpretation of § 109 is to be preserved in the face of the broadening of all other venue provisions with respect to corporations, it would mean that now, instead of being uniquely broad, venue in patent suits is uniquely narrow. Which "policy" is to be continuedthe previous exact meaning of § 109, or that of liberal venue provisions for patent suits?
Under all of the circumstances I cast my lot with those judges who find no reason to read the chapter other than as a whole and on its face without modification or interpretation.[6] Defendant's motions to quash and to dismiss are denied.
NOTES
[1] I do not adopt the holding in Remington Rand, Inc. v. Knapp-Monarch Co., D.C.E.D.Pa., 139 F.Supp. 613, to the effect that doing business for venue purposes requires a greater showing than for jurisdiction. Cf. Riverbank Laboratories v. Hardwood Products Corp., 350 U.S. 817, 76 S.Ct. 47, reversing per curiam, Id., 7 Cir., 220 F.2d 465. Nor do I intimate that such showing, if needed, does not exist.
[2] Illustrative cases are, Dalton v. Shakespeare Co., 5 Cir., 196 F.2d 469, pro; Ruth v. Eagle-Picher Co., 10 Cir., 225 F. 2d 572, contra (2-1); C-O-Two Fire Equipment Co. v. Barnes, 7 Cir., 194 F. 2d 410, contra (2-1), affirmed (4-4) sub nom. Cardox Corp. v. C-O-Two Fire Equipment Co., 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 695, rehearing denied 344 U.S. 900, 73 S.Ct. 273, 97 L.Ed. 668.
[3] See, e. g., Emerson v. National Cylinder Gas Co., D.C.D.Mass., 131 F.Supp. 299; Id., D.C., 135 F.Supp. 271.
[4] Ruth v. Eagle-Picher Co., supra, note 2; see also Clayton v. Swift & Co., D.C. E.D.Va., 132 F.Supp. 154.
[5] This admitted and obvious change would seem to rebut the presumption of no change through codification referred to in Eagle-Picher. In the face of that change I find certain statements by Messrs. Barron and Moore quoted in the majority opinion to the effect that the revision makes no alterations in existing law hard to understand.
[6] Before the publication of this opinion the Second Circuit adopted the same view. Transmirra Products Corp. v. Fourco Glass Co., 2 Cir., 233 F.2d 885. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263344/ | 142 F.Supp. 902 (1956)
FALCON DAM CONSTRUCTORS, Constructora Intercontinental, S. A., C. F. Lytle Company, Massman Construction Company, Foley Brothers and Anderson, Inc. (Formerly Foley Brothers, Inc.), Tellepsen Construction Company, Edward Peterson Company, Amis Construction Company, San Ore Construction Company, and Intercontinent Constructors, Inc.,
v.
The UNITED STATES.
No. 72-55.
United States Court of Claims.
July 12, 1956
*903 John M. Martin, Beverly Hills, Cal., for plaintiffs. Frank L. Martin and Martin & Martin, Beverly Hills, Cal., were on the brief.
John B. Miller, Washington D. C., with whom was Asst. Atty. Gen. George Cochran Doub, for defendant. Alfred H. O. Boudreau, Jr., Washington D. C., was on the brief.
Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges.
MADDEN, Judge.[1]
The plaintiffs are seven American contractors, a joint venture named Falcon Dam Constructors, comprised of the seven American contractors, a Mexican corporation named Constructora Intercontinental, S. A., and a Delaware corporation, Intercontinent Constructors, Inc., owned by five of the American contractors, which corporation together with the other two American contractors, own all the stock of Constructora, the Mexican corporation. The occasion for the creation of this rather formidable array of juristic entities was the proposed building of a dam across the Rio Grande River, to be paid for partly by the United States and partly by Mexico, which dam was built and is named the Falcon Dam.
A treaty, 59 Stat. 1219-1267, was made between the United States and Mexico dated February 3, 1944, and a protocol supplementing the treaty and, expressly made a part of it, was signed on November 14. The treaty was ratified by the United States Senate on April 18, 1945, and proclaimed by the President on November 27 of that year. The treaty contemplated the construction of a series of dams on the Rio Grande, water allocation between the two nations, and flood control projects on the Colorado and Tia Juana Rivers. The provisions of the treaty relating to the Rio Grande River defined an International Boundary *904 and Water Commission which should have the status of an international body and should consist of a United States Section and a Mexican Section. Article 4 of the treaty allocated the use of the waters of the Rio Grande between the United States and Mexico. Article 5 was an agreement to jointly construct storage dams in the main channel of the Rio Grande. It provided that "the cost of construction, operation and maintenance of each of the * * * dams shall be prorated between the two Governments in proportion to the capacity alloted to each country for conservation purposes in the reservoir at such dam."
Article 6 of the treaty provided for studies, investigation and preparation of plans by the Commission and a report to the two Governments of the works to be built, the estimated cost, and the part of the works to be constructed by each Government. It said:
"* * * Each Government agrees to construct, through its Section of the Commission, such works as may be recommended by the Commission and approved by the two Governments. Each Government shall pay the costs of the works constructed by it and the costs of operation and maintenance of the part of the works assigned to it for such purpose."
Article 20 contained the following language:
"Each Government shall assume responsibility for and shall adjust exclusively in accordance with its own laws all claims arising within its territory in connection with the construction, operation or maintenance of the whole or of any part of the works herein agreed upon, or of any works which may, in the execution of this Treaty, be agreed upon in the future."
Minutes were made of the actions of the Commission. The minutes of the meeting of December 20, 1947, recite agreements as to the site, size and storage capacity of the dam which was to be known as the Falcon Dam. At a meeting on August 13, 1948, the preparatory work for the dam was allocated between the United States and the Mexican Sections of the Commission. The preparation of the plans and specifications for the entire dam was allocated to the United States Section which was to have this work done in the Office of the Chief Engineer of the Bureau of Reclamation of the United States. At a meeting on September 7, 1949, allocations of the specific items of construction work were made between the two Governments on the basis of the agreed allocation of estimated costs.
Invitations for bids were issued on September 15, 1950, the bids to be opened on October 30. The work to be undertaken and paid for by the United States was denominated Schedule No. 1, and that of Mexico, Schedule No. 2. The United States' share of the work amounted to 58.6 percent, which was the United States' percentage of the use of the water to be impounded by the dam. The Schedule 2 work to be paid for by Mexico was 41.4 percent of the entire work. According to the invitation, bids for the Schedule 1 work were to be made to the United States Commissioner, and those for the Schedule 2 work to the Mexican Commissioner. Separate contracts were to be made for the work covered by the two schedules.
Because of the savings which would result if the same contractor or cooperating contractors would get both contracts, the invitation permitted a bidder, in addition to making separate bids on the separate schedules, to make conditional bids, stating, for example, how much he would do the work on Schedule 1 for if a bidder specified by him in his conditional bid got the contract for Schedule 2.
The seven American contractors referred to earlier in this opinion, combining in a joint venture called Falcon Dam Constructors, submitted an unconditional bid of $8,600,980 on Schedule 1, and a bid of $7,801,064 on Schedule 1 if the contract on Schedule 2 should be awarded to Constructora Intercontinental, *905 S. A. Constructora was a Mexican corporation which had been created by the seven American contractors because Americans could not obtain a contract with the Mexican Government. Constructora was owned, partly directly, and partly indirectly through ownership of a holding company, a Delaware corporation, Intercontinent Constructors, Inc., by the seven American contractors. Falcon Dam Constructors' alternative bid on Schedule 1 at the lower figure named above was accepted, which meant that Constructora's bid on Schedule No. 2 was accepted. A contract was executed between Falcon Dam Constructors and the United States for the Schedule 1 work, and a contract was executed between Constructora and Mexico for the Schedule 2 work.
After the completion of all the work under both contracts, Falcon Dam Constructors presented to the Commission a claim for damages allegedly suffered by it, in its Schedule 1 work, and by Constructora in its Schedule 2 work. The total claim was for $1,938,777. Of this amount, $977,295 was the alleged damage to Constructora for:
"Increased costs due to failure of the United States Government to timely furnish drawings, materials, and equipment in conformity with the contract provisions and the express representations of the treaty, of the Commission, and of the United States upon which the contractors relied in the submission of their qualified and conditional bids pursuant to which awards of contracts for both Schedule No. 1 and Schedule No. 2 were made."
Nothing has been paid to Falcon Dam Constructors on its claim made to the Commission. The plaintiffs in this case sue for substantially the same amount for which Falcon Dam Constructors made claim to the Commission. The petition refers to delays occurring under both Schedule 1 and Schedule 2. Compensation for those occurring under Schedule 2, if recoverable, would belong to Constructora, the contractor on that work. Both Constructora and Intercontinent Constructors, Inc., the Delaware corporation which held most of the stock of Constructora, are plaintiffs in this case.
The Government has moved for a summary judgment of dismissal as to Constructora and Intercontinent Constructors, pointing out that Constructora had no contract with the United States, but only with Mexico, and that Intercontinent Constructors had no contract at all, but was merely a stockholder in Constructora. As to Intercontinent Constructors, it seems plain that it has no proper place in this litigation. As a stockholder in a corporation which is not neglecting to enforce its rights, but is a party plaintiff in this very litigation, it can contribute nothing useful to the decision of the case.
The International Commission, in the allocation of the work and the expense of the project, allocated to the United States the cost of the drawings, and to the Chief Engineer of the United States Bureau of Reclamation, the task of making them. Some 88 drawings were already prepared when the bids were taken and the contracts were let. The "Special Conditions" common to both contracts, and therefore inserted in each contract, stated that additional drawings would be furnished as they became necessary or desirable, and, when furnished, would have to be followed.
There was also a "Special Condition" as to materials and equipment to be furnished by the Commission under both contracts. In one paragraph it listed the materials and equipment to be furnished under Schedule 1, i. e. the United States contract. In another paragraph it listed materials and equipment to be furnished under Schedule 2, i. e. the Mexican contract, and said that certain designated items would be furnished by the United States Section of the Commission, and certain other designated items by the Mexican Section.
The United States contract, Schedule No. 1, was, of course, made with the United States contractor, the joint *906 venture. The recital in it of the matters of interest to both contractors represented an economy of language, since that much of the writing could simply be duplicated in the two contracts. It also gave each contractor useful information as to what the arrangements inside the Commission were as to the allocation of work and materials not to be furnished by the contractors. The plaintiffs say that these statements amounted to a promise by the United States to the United States contractor, that it would furnish the Schedule 2 drawings and materials to the Mexican contractor, and that this promise was made for the benefit of the Mexican contractor, and gave it enforceable rights against the United States.
We think that the fact that these recitals were made in the United States contract, and also, presumably, vice versa, in the Mexican contract, to which the United States was not a party, was a matter of drafting convenience and that it added no significance to the fact, (already known to all parties, that in the international arrangements between the two nations, certain allocations had been made as to which nation was to furnish certain items for the dam. If there was an inclination on the part of the United States plaintiffs and their Mexican subsidiary to count more heavily on the United States furnishing these items on time than they would have counted on Mexico if the items had been allocated to Mexico, that inclination would have existed in any event, since the contractors already knew what the international allocation was.
We think that the recital in the United States contract of the terms of the international allocation did not amount to a promise to or for the benefit of a third person, not a party to that contract. The "Special Condition" common to both contracts meant that they should be applied, so far as relevant, to the parties to each contract, "as the case may be."
The plaintiffs also suggest that we, in effect, "pierce the corporate veil" and treat all of them as one entity and the two contracts as one contract. The whole arrangement, well known to the two governments, whereby the American enterprisers created, for the occasion, a Mexican corporation so controlled by them that the operation could be carried on as a single operation, was rather unreal. But the treaty provisions requiring each country to be responsible for its own, and only for its own, contracts were real enough and must be adhered to.
Our conclusion is that the plaintiff, Constructora Intercontinental, S. A., which contracted with Mexico, is suing the United States because the United States did not do what it agreed with Mexico to do.
In 28 U.S.C. § 1502, appears this language:
"Except as otherwise provided by Act of Congress, the Court of Claims shall not have jurisdiction of any claim against the United States growing out of or dependent upon any treaty entered into with foreign nations."
We think Constructora's claim grew out of the treaty with Mexico. The treaty provided for the building of dams such as the Falcon Dam; it created a Commission to administer the building of such dams; it was the entire legal basis for the agreement made by the United States Commissioner that the United States would do the things which were allocated to it to be done. The agreement was the implementation of the treaty. By the statute just quoted, Congress has withdrawn from litigation questions as to whether the United States has done what it agreed by treaty to do. If Mexico were suing on the contractual provisions of the treaty, we would be obliged to so hold and we must likewise so hold as to the plaintiff Constructora.
The Government's motion for a summary judgment of dismissal as to the plaintiffs Constructora Intercontinental, S. A., and Intercontinent Constructors, *907 Inc., is granted and the petition is dismissed as to them.
It is so ordered.
JONES, Chief Judge, and LARAMORE, WHITAKER and LITTLETON, Judges, concur.
NOTES
[1] Pursuant to an order of the court entered this date the prior opinion in this case rendered on June 5, 1956 has been vacated and this opinion substituted in its place. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263355/ | 142 F.Supp. 300 (1956)
In the Matter of Daniel D. DRISCOLL, dba Independent Refrigeration Co., Bankrupt.
In Bankruptcy
No. 66837.
United States District Court S. D. California, Central Division.
June 25, 1956.
James M. Gammon, Los Angeles, Cal., for Bankrupt, petitioner on review.
Craig, Weller & Laugharn, by Andrew F. Leoni, Los Angeles, Cal., for A. J. Bumb, trustee in bankruptcy, respondent on review.
*301 TOLIN, District Judge.
The problem in this case is simple and revolves around the social policy of statutes of exemption from execution and the perpetual eagerness of creditors to whittle away from the immunities created by such exemption laws.
The bankrupt has been ordered to pay to the Trustee amounts equal to loans he had negotiated and repaid Insurance Companies upon the security of life insurance policies which had loan values which, with all other life insurance of the bankrupt, required payment of premiums totaling less than $500 per year.
Long before bankruptcy, the bankrupt had purchased three life insurance policies upon his life. The total annual premiums were $389.50. The surrender values of the policies do not appear in the record, but one with Massachusetts Mutual Life Insurance Company had cash value of at least $1,208.80, and a New York Life Insurance Company policy is worth at least $433.93.
The bankrupt claimed that the policies are exempt and beyond reach of the Trustee. The Bankruptcy Act provides that the statutes which create exemption from execution in the state where the bankrupt resides determine the property a bankrupt may retain as exempt.[1] California Code of Civil Procedure, § 690.19,[2] therefore applies in this case for this bankrupt resided in California at all pertinent times.
The adjudication of bankruptcy upon a voluntary petition was made on June 3, 1955.
On March 16, 1955, the bankrupt negotiated the last of some loans on the two named policies. These loans were repaid within two weeks prior to filing of the voluntary petition.
The Trustee filed his Report of Exempt Property and in said Report the insurance policies were set apart to the bankrupt as exempt.
The proceeds of the loans (loans secured to the Companies by the policies) were used by the bankrupt in his business. At the time the loans were repaid, the bankrupt was insolvent.
The Referee disapproved the Report of Exempt Property insofar as it related to the two policies which had been the subjects of the loans and repayments. He ruled that the bankrupt could only retain the policies as exempt property if he paid into the estate the portion of the cash surrender value of the policies which accrued by reason of the repayment of the loans. The Referee ruled that unless this condition be met, the policies should pass to the Trustee.
The Referee's Memorandum states:
"* * * there is * * * a clear distinction between the acquisition or the creation of an exemption and an attempt to restore or recreate an exemption which has ceased to exist." (Emphasis in quoted material.)
In addition to claiming the policies not exempt, the Trustee had asserted that the repayment of the policy loans within two *302 weeks prior to bankruptcy constituted a preference.
The Referee correctly determined that there was no voidable preference. His Memorandum states:
"There is no possibility of a voidable preference under section 60 of the Bankruptcy Act [11 U.S.C.A. § 96]. In a situation such as we have in this case it is doubtful if the insurance companies in question can be regarded as having been `creditors' of the bankrupt. If they were creditors while the aforesaid loans were outstanding they were secured by the policies upon which the loans were made, and the trustee has neither alleged nor shown that they obtained a greater percentage of their debts than other creditors of the same class or that they had reasonable cause to believe that the bankrupt was insolvent."
It has been held that the acquisition of exempt property with non-exempt funds by an insolvent debtor on the eve of bankruptcy is not ipso facto fraudulent and that unless actual fraud appears, such property is exempt.[3]
It has also been held that an insolvent, on the eve of bankruptcy, has a right to relieve the homestead from a lien resting on it, and he does not thereby impair the exemption of his homestead.[4] Protection of a debtor's life insurance has been held to be a part of the beneficent public policy of saving debtors and their families from want by reason of misfortune or improvidence.[5]
Exemptions from execution are creatures of statute and the particular exemption claimed by this bankrupt measures the amount of exempt insurance by a limitation upon the amount of annual premium. This is the only limitation mentioned in the statute. This insured's total life insurance premiums were well below the $500 allowed by the statute. Even including the policy not a subject of the Referee's Order, the total is under $500.
It would be inconsistent for the courts to allow owners of homesteads to pay off liens on that type of property without impairing the exemption and deny a similar right to holders of life insurance policies. It would be equally inconsistent to allow insolvents to acquire exempt property and to deny an insolvent person the right to protect such property already owned but subject to an encumbrance.
The decision of the Referee must be reversed with directions to approve the Trustee's Report of Exempt Property.
NOTES
[1] Title 11, U.S.C.A. § 24.
[2] "Exemptions; life insurance proceeds, benefits, etc.; restriction
"All moneys, benefits, privileges, or immunities, accruing or in any manner growing out of any life insurance, if the annual premiums paid do not exceed five hundred dollars ($500), or if they exceed that sum a like exemption shall exist which shall bear the same proportion to the moneys, benefits, privileges, and immunities so accruing or growing out of such insurance that said five hundred dollars ($500) bears to the whole annual premium paid.
"In addition to the foregoing, all moneys, benefits or privileges belonging to or inuring to the benefit of the insured's spouse or minor children growing out of life insurance purchased with annual premiums not exceeding five hundred dollars ($500), or if such annual premiums exceeded that sum, a like exemption shall exist in favor of such persons which shall bear the same proportion to the moneys, benefits or privileges growing out of such insurance that five hundred dollars ($500) bears to the whole annual premiums paid. (Added Stats.1935, c. 723, p. 1970, § 19. As amended Stats. 1947, c. 1056, p. 2454, § 1.)
[3] Goggin v. Dudley, 9 Cir., 166 F.2d 1923, affirming; In re Dudley, 72 F.Supp. 943. See also, Collier on Bankruptcy, Vol. 1-868; and Doethlaff v. Penn Mut. Life Ins. Co., 6 Cir., 117 F.2d 582.
[4] Gray v. Brunold, 140 Cal. 615, 74 P. 303.
[5] In re Estate of Crosby, 2 Cal.2d 470, 41 P.2d 928. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2263539/ | 238 P.3d 866 (2008)
WILD GAME NG
v.
WMS GAMING, INC.
No. 49239.
Supreme Court of Nevada.
March 27, 2008.
Decision Without Published Opinion Dismissed-Stipulation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2264795/ | 238 P.3d 487 (2010)
STATE of Washington, Respondent,
v.
Leo B. BUNKER, Petitioner.
State of Washington, Respondent,
v.
Donald Carl Williams, Petitioner.
State of Washington, Petitioner,
v.
Rachel Marie Vincent, Respondent.
Nos. 81921-1, 81940-8.
Supreme Court of Washington, En Banc.
Argued February 23, 2010.
Decided August 26, 2010.
*488 Christopher Gibson, Nielsen Broman & Koch P.L.L.C., Seattle, WA, for Petitioner.
Melody M. Crick, Pierce County Prosecutor's Office, Tacoma, WA, Randi J. Austell, King County Prosecutor's Office, Seattle, WA, for Respondent.
J.M. JOHNSON, J.
¶ 1 Leo Bunker, Donald Williams, and Rachel Vincent were charged with criminal violations of no-contact orders under former *489 RCW 26.50.110 (2006). The defendants[1] argue that the language of the statute criminalizes only those contacts with a protected party that are violent, threaten violence, or occur in a specifically prohibited place. We hold that former RCW 26.50.110 correctly criminalizes all no-contact order violations and affirm the defendants' convictions.
FACTS AND PROCEDURAL HISTORY
I. Division OneBunker and Williams
A. Bunker
¶ 2 Leo Bunker was pulled over by the Washington State Patrol for speeding while driving his semitractor-trailer. Lillian Hiatt was Bunker's passenger. A records check on Bunker revealed two court orders prohibiting Bunker from contacting Hiatt. Bunker was arrested, charged, and convicted of violating no-contact orders under former RCW 26.50.110.
B. Williams
¶ 3 Donald Williams was convicted by a jury on three felony counts of violating a no-contact order under former RCW 26.50.110. The order prohibited Williams from coming within 500 feet of Linda Poole's residence and work and from having any contact with Poole except phone calls to arrange visits with their five-year-old daughter.
¶ 4 On March 13, 2006, Williams phoned Poole while she was at a grocery store, calling her several profane names. Poole returned home to find Williams waiting for her in an angry and intoxicated state. When Poole told Williams she was leaving to pick up their daughter from day care, Williams tried to take Poole's keys and grabbed her wrist. Poole broke free, and Williams placed his hand on her chest and pushed her. Frightened but uninjured, Poole got into her truck and left.
¶ 5 Williams called Poole while she drove to their daughter's day care. Williams yelled vulgar words over the phone at Poole so loudly that the day care provider was able to hear. Williams said he would trash the house, rip the telephone and computer out of the wall, take the tools and truck, and kidnap the children's dog if Poole did not immediately return home. Poole was afraid to call the police, so the day care provider called 911. An officer accompanied Poole home, but Williams was gone when Poole and the officer arrived.
¶ 6 During dinner with her daughter that night, Poole saw Williams standing at her window, trying to get in. He appeared more intoxicated than before. Poole was afraid and refused to let Williams in. Williams left, and Poole called the police. Williams denied contacting Poole on March 13, 2006, but acknowledged the order and previous violations. A jury convicted Williams of three no-contact order violations.
¶ 7 Bunker and Williams appealed their convictions, arguing that any no-contact order violation must also constitute an act requiring mandatory arrest under RCW 10.31.100(2)(a) or (b) to be a criminal offense. Neither the charging documents nor the jury instructions referenced either subsection of the statute. In a consolidated decision, Division One of the Court of Appeals affirmed Bunker's and Williams' convictions and held that no-contact order violations were crimes regardless of whether the offending conduct also satisfied RCW 10.31.100(2)(a) or (b). State v. Bunker, 144 Wash.App. 407, 183 P.3d 1086 (2008).
II. Division TwoVincent
¶ 8 On January 4, 2007, Pierce County Sheriff's Department deputies pulled over Howard Seaworth for driving a car with expired tags. Rachel Marie Vincent was Seaworth's passenger. A records check revealed a no-contact order prohibiting Vincent from contacting Seaworth. Vincent acknowledged she was aware of the no-contact order and had been arrested a few days prior for violating it. Vincent was again arrested for violating the no-contact order.
*490 ¶ 9 A Pierce County District Court judge found Vincent guilty in a stipulated facts trial, and Vincent appealed to Pierce County Superior Court. The superior court remanded the case with instructions to dismiss based on the Court of Appeals, Division Two decision in State v. Hogan, 145 Wash.App. 210, 192 P.3d 915 (2008). Hogan held that former RCW 26.50.110(1) (2000) only criminalized no-contact order violations if an arrest was required under RCW 10.31.100(2)(a) or (b). Accord State v. Madrid, 145 Wash.App. 106, 117, 192 P.3d 909 (2008). The superior court reasoned that Vincent's conduct did not warrant arrest under RCW 10.31.100(2)(a) or (b), so Vincent's no-contact order violation was not a crime.
¶ 10 The State petitioned this court for discretionary review, and we granted review, consolidating Vincent with Bunker. Division Two then published two opinions declining to follow its previous decisions in Hogan and Madrid, instead adopting Division One's Bunker analysis. State v. Wofford, 148 Wash.App. 870, 881, 201 P.3d 389 (2009); State v. Allen, 150 Wash.App. 300, 309, 207 P.3d 483 (2009). We agree with the Bunker court's results and affirm the defendants' criminal convictions.
ANALYSIS
¶ 11 Bunker, Williams, and Vincent were charged with violations of no-contact order provisions under former RCW 26.50.110, which reads in pertinent part as follows:
(1) Whenever an order is granted under this chapter, chapter 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of the restraint provisions, or of a provision excluding the person from a residence, workplace, school, or day care, or of a provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location, or of a provision of a foreign protection order specifically indicating that a violation will be a crime, for which an arrest is required under RCW 10.31.100(2) (a) or (b), is a gross misdemeanor except as provided in subsections (4) and (5) of this section.
Former RCW 26.50.110(1)[2] (emphasis added). Subsections (4) and (5) elevate a crime's status from misdemeanor to felony. RCW 10.31.100(2)(a) requires an officer to arrest a person who violates a no-contact order's provisions prohibiting "acts or threats of violence" or entering or remaining in a prohibited location. Subsection (2)(b) applies to foreign protection orders only and is not implicated by the facts of this case. Arrest under either subsection is mandatory when probable cause exists; no arrest warrant is required.
¶ 12 The defendants argue that the statutory language italicized above modifies the phrase "a violation of the restraint provisions," and therefore no-contact order violations that do not satisfy the mandatory arrest requirements are not crimes. If this construction of the statute is rejected, then a violation of a no-contact order is a gross misdemeanor or felony.
¶ 13 It is clear from examining the statute in context that any no-contact order violation is a crime, and the arrest provision does not modify the phrase "a violation of the restraint provisions." The mandatory arrest requirements are thus not elements of the crime of violating a no-contact order under former RCW 26.50.110(1). The defendants' charging documents and jury instructions were not deficient, and we affirm the defendants' convictions.
Statutory Interpretation
¶ 14 We review questions of statutory interpretation de novo and interpret statutes to give effect to the legislature's intentions. City of Spokane v. County of Spokane, 158 Wash.2d 661, 672-73, 146 P.3d 893 (2006). We begin by examining the plain language of the statute. In re Forfeiture of One 1970 Chevrolet Chevelle, 166 Wash.2d 834, 838-39, 215 P.3d 166 (2009). "'The plain meaning of a statute may be discerned from all that the Legislature has said in the *491 statute and related statutes which disclose legislative intent about the provision in question.'" Chadwick Farms Owners Ass'n v. FHC LLC, 166 Wash.2d 178, 186, 207 P.3d 1251 (2009) (internal quotation marks omitted) (quoting State v. J.P., 149 Wash.2d 444, 450, 69 P.3d 318 (2003)). Further, "[a]n act must be construed as a whole, considering all provisions in relation to one another and harmonizing all rather than rendering any superfluous." State v. George, 160 Wash.2d 727, 738, 158 P.3d 1169 (2007) (citing State v. Greenwood, 120 Wash.2d 585, 594, 845 P.2d 971 (1993)). Finally, we employ traditional rules of grammar in discerning the plain language of the statute. Chevelle, 166 Wash.2d at 839, 215 P.3d 166.
¶ 15 One such grammar rule is the last antecedent rule, which states that qualifying or modifying words and phrases refer to the last antecedent. Spokane, 158 Wash.2d at 673, 146 P.3d 893; Berrocal v. Fernandez, 155 Wash.2d 585, 600, 121 P.3d 82 (2005) (C. Johnson, J., dissenting). Related to this rule is the corollary principle that "`the presence of a comma before the qualifying phrase is evidence the qualifier is intended to apply to all antecedents instead of only the immediately preceding one.'" Spokane, 158 Wash.2d at 673, 146 P.3d 893 (internal quotation marks omitted) (quoting Berrocal, 155 Wash.2d at 593, 121 P.3d 82). We do not apply the rule if other factors, such as context and language in related statutes, indicate contrary legislative intent or if applying the rule would result in an absurd or nonsensical interpretation. See State v. McGee, 122 Wash.2d 783, 789, 864 P.2d 912 (1993); In re Pers. Restraint of Smith, 139 Wash.2d 199, 204-05, 986 P.2d 131 (1999).
¶ 16 Contrary to the defendants' assertions, the last antecedent rule and its comma corollary do not apply here. The plain language of former RCW 26.50.110 and a related statute indicate former RCW 26.50.110(1) was intended to criminalize all violations of no-contact order restraint provisions regardless of an independent need for arrest. This is contrary to the effect the statute would have if the last antecedent rule's comma corollary is applied. Further, applying the arrest provision to all antecedents would lead to absurd results that conflict with legislative intent. Thus, all violations of no-contact order restraint provisions are misdemeanors or felonies under former RCW 26.50.110.[3]
¶ 17 First, it is clear that the legislature intended a criminal misdemeanor or felony penalty for no-contact order violations under former RCW 26.50.110(1). Subsection (3) of the same statute states that violation of a no-contact order "shall also constitute contempt of court, and is subject to the penalties prescribed by law." Former RCW 26.50.110(3) (emphasis added). The word "also" indicates that contempt of court is punishment in addition to some other punishment. See Webster's Third New International Dictionary 62 (2002) ("also" means "in addition: as well"). Subsection (1) clearly designates that this baseline punishment is a gross misdemeanor or felony, depending on the factual context. The language of former RCW 26.50.110 thus indicates the comma corollary should not apply.
¶ 18 Next, defendants' argued application of the last antecedent rule's corollary would render statutory language superfluous. RCW 10.99.040 governs the issuance of domestic violence no-contact orders. Subsection (4)(a) states that "[w]illful violation of a court order ... is punishable under RCW 26.50.110." Subsection (4)(b) states that these no-contact orders are required to include the following warning: "Violation of this order is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest." Applying the last antecedent rule's comma corollary to former RCW 26.50.110(1) would render RCW 10.99.040 superfluous in every instance where a no-contact order was violated but arrest was not independently required under RCW 10.31.100. Because we interpret statutes to harmonize with each *492 other instead of conflict, see George, 160 Wash.2d at 738, 158 P.3d 1169, the language of RCW 10.99.040 indicates that the comma corollary should not apply.
¶ 19 Finally, applying the last antecedent rule would contradict express legislative intent. If the defendants' interpretation is correct, a restrained party would commit a criminal offense by entering an expressly prohibited area near a protected party's home to visit a friend. Whether the protected party knew of the restrained party's visit would not matter. However, no criminal offense would occur if a restrained party purposefully encountered and harassed a protected party while the protected party was at work, shopping, or at any other location that was not expressly identified as a prohibited area, provided the restrained party did not threaten physical violence. The legislature has stated that the purpose of domestic violence laws is to give "maximum protection" to domestic violence victims. RCW 10.99.010. Criminalizing a visit to a friend but decriminalizing blatant harassment flies in the face of this intent and is absurd.
¶ 20 The plain language of RCW 10.99.040 and former RCW 26.50.110(3), the intent of domestic violence statutes as codified in RCW 10.99.010, and the absurd results of applying the last antecedent rule's comma corollary to former RCW 26.50.110(1) show that the legislature did not intend the mandatory arrest provision to qualify the statutory phrase "violation of the restraint provisions." The mandatory arrest requirements were therefore not elements of the crime of violating a no-contact order.[4]
Legislative Amendment
¶ 21 Even if we believed the plain language of former RCW 26.50.110(1) was ambiguous, contextual evidence clearly indicates that the defendants' proffered interpretation is inconsistent with legislative intent.[5]
¶ 22 We may refer to a statute's subsequent history to clarify an ambiguous statute's original intent. See Rozner v. City of Bellevue, 116 Wash.2d 342, 347-48, 804 P.2d 24 (1991). In 2007, the legislature unanimously amended former RCW 26.50.110 to exorcise the arrest provision and make clear that any violation of a no-contact order restraint provision was a crime. Final H.B. Rep. on Substitute H.B. 1642, at 2, 60th Leg., Reg. Sess. (2007). Regarding the amendments, the legislature stated:
The legislature finds this act necessary to restore and make clear its intent that a willful violation of a no-contact provision of a court order is a criminal offense and shall be enforced accordingly to preserve the integrity and intent of the domestic violence act. This act is not intended to broaden the scope of law enforcement power or effectuate any substantive change to *493 any criminal provision in the Revised Code of Washington.
Laws of 2007, ch. 173, § 1 (emphasis added). This legislative statement of intent leaves no doubt regarding the correct interpretation of former RCW 26.50.110(1). The nature of the former and 2007 versions of the statute are substantively the same, and both criminalize all no-contact order violations.
CONCLUSION
¶ 23 We affirm the Court of Appeals in Bunker and reverse the superior court in Vincent. We hold each conviction was proper under the correct understanding of former RCW 26.50.110, which prohibits violations of no-contact orders. We overrule Hogan and Madrid to the extent they conflict with our analysis.
WE CONCUR: BARBARA A. MADSEN, Chief Justice, CHARLES W. JOHNSON, TOM CHAMBERS, SUSAN OWENS, MARY E. FAIRHURST, and DEBRA L. STEPHENS, Justices, WILLIAM W. BAKER, Justice Pro Tem.
SANDERS, J. (dissenting).
¶ 24 Former RCW 26.50.110(1) (2006) is unambiguous. It compels us to affirm the Pierce County Superior Court in State v. Vincent, No. 07-1-03846-1 (July 23, 2007) and reverse the Court of Appeals in State v. Bunker and State v. Williams, 144 Wash. App. 407, 183 P.3d 1086 (2008). I dissent.
ANALYSIS
¶ 25 The majority today fumbles several relevant rules of statutory construction. Chiefly, it bypasses the following tenet: "In interpreting a statute, this court looks first to its plain language. If the plain language of the statute is unambiguous, then this court's inquiry is at an end. The statute is to be enforced in accordance with its plain meaning." State v. Armendariz, 160 Wash.2d 106, 110, 156 P.3d 201 (2007) (emphasis added) (citations omitted). The majority similarly ignores the rule that obliges us to derive legislative intent from the plain language of the statute. "When statutory language is unambiguous, we look only to that language to determine the legislative intent without considering outside sources." State v. Delgado, 148 Wash.2d 723, 727, 63 P.3d 792 (2003) (emphasis added); see also Tingey v. Haisch, 159 Wash.2d 652, 657, 152 P.3d 1020 (2007) (when a "`statute's meaning is plain on its face, then the court must give effect to that plain meaning as an expression of legislative intent'" (quoting State v. Jacobs, 154 Wash.2d 596, 600, 115 P.3d 281 (2005) (internal quotation marks omitted))). We review statutory construction de novo. City of Spokane v. County of Spokane, 158 Wash.2d 661, 672-73, 146 P.3d 893 (2006).
¶ 26 Former RCW 26.50.110(1) provides:
Whenever an order is granted under this chapter, chapter 10.99, 26.09, 26.10, 26.26, or 74.34 RCW, or there is a valid foreign protection order as defined in RCW 26.52.020, and the respondent or person to be restrained knows of the order, a violation of the restraint provisions, or of a provision excluding the person from a residence, workplace, school or day care, or of a provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location, or of a provision of a foreign protection order specifically indicating that a violation will be a crime, for which an arrest is required under RCW 10.31.100(2)(a) or (b), is a gross misdemeanor except as provided in subsections (4) and (5) of this section.
(Emphasis added.)
¶ 27 While this statute is inelegant, its plain language is also unambiguous. When the irrelevant portions are removed, the statute reads, "[A] violation of the restraint provisions..., for which an arrest is required under RCW 10.31.100(2)(a) or (b), is a gross misdemeanor...." Former RCW 26.50.110(1).
¶ 28 Despite the majority's claim to the contrary, there is no reason the last antecedent rule's corollary should not apply here. Majority at 490-91. The majority's primary reason for dismissing this rule of grammar (i.e., that a subsequent statutory provision contains the word "also") makes little sense. Majority at 491. Aside from being loose justification *494 for such an important aspect of the case, the logic falters. The "also" in former RCW 26.50.110(3) refers to the gross misdemeanor of violating a no-contact order for which an arrest is required under RCW 10.31.100(2)(a) or (b). Subsection (3)'s contempt of court penalty is properly "in addition to some other punishment" when that punishment is warranted. Majority at 491. The majority's logic should not discharge the rule of grammar here.
¶ 29 Moreover, the majority's contention that the corollary to the last antecedent rule, if applied, would lead to absurd results does not ring true. See id. at 490-91, 491, 491-92. That the legislature would characterize as gross misdemeanors only violations that carry the requirement of arrest under RCW 10.31.100instead of all violations generallyis not absurd. It might not mesh with the majority's preferences, but it is not absurd.
¶ 30 Accordingly I would hold the qualifying phrase "for which an arrest is required under RCW 10.31.100(2)(a) or (b)" applies to all antecedents, not merely the immediately preceding one. Former RCW 26.50.110(1). The statute unambiguously limits gross misdemeanors to only those violations of no-contact orders for which an arrest is required. It does not criminalize all violations of no-contact orders.
¶ 31 The statute's plain language ends our inquiry. See Armendariz, 160 Wash.2d at 110, 156 P.3d 201. Yet the majority nonetheless delves into external sources, including amendments passed after the violations.[1] Majority at 492. Our rules of statutory construction require us to derive legislative intent from the plain language of this unambiguous statute. Delgado, 148 Wash.2d at 727, 63 P.3d 792; Tingey, 159 Wash.2d at 657, 152 P.3d 1020.[2]
¶ 32 Here, police found Leo Bunker in the willing company of Lillian Hiatt after Bunker was stopped for speeding. Hiatt, who had a restraining order against Bunker, was a passenger in the truck. The same theme applies to Rachel Vincent, whom police discovered in a car with a man who held a no-contact order against her. Donald Williams violated a no-contact order by yelling profanities at Linda Poole, grabbing Poole's wrist, trying to take her keys, and threatening to trash her house, steal her truck, and kidnap her dog. He also appeared on Poole's front porch late at night and rattled the doorknob in an attempt to enter her home.
¶ 33 For a conviction to stand the State must prove beyond a reasonable doubt every essential element of a crime charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The State charged the defendants with violations of former RCW 26.50.110(1). While each of the incidents here violated the provisions of the respective no-contact orders, the State did not allege nor prove at trialthat arrest pursuant to RCW 10.31.100(2)(a) or (b)[3] was an essential element of the crimes. The State merely charged violations of each no-contact order.
¶ 34 Accordingly I would hold the State improperly charged the defendants under former RCW 26.50.110(1). The charging documents and jury instructions omit essential elements of the crimes. For Bunker and *495 Vincent, it is not even clear they committed a crime under former RCW 26.50.110(1) because there was no act or threat of violence and no presence in prohibited places requiring arrest. The Stateand this courtmust live with the version of former RCW 26.50.110(1) in effect when the defendants violated the no-contact orders.
CONCLUSION
¶ 35 Because the majority today misapplies our rules of statutory construction, I dissent. The plain language of former RCW 26.50.110(1) compels a different result.
NOTES
[1] Bunker and Williams are petitioners and Vincent is the respondent in their respective preconsolidation cases. We refer to these three individuals by their common trial-level designation "defendants" for simplicity.
[2] This version of RCW 26.50.110(1) was in effect from June 8, 2000 to July 22, 2007.
[3] No parties dispute that the clause "is a gross misdemeanor except as provided in subsections (4) and (5) of this section" in former RCW 26.50.110(1) applies to the statute's phrase "violation of the restraint provisions." Subsections (4) and (5) elevate criminal conduct from misdemeanor to felony status. Thus, if the arrest provision does not apply, then all violations of no-contact order restraint provisions are crimes.
[4] Although it is clear that the mandatory arrest provision does not modify "a violation of the restraint provisions," it is not altogether clear which antecedents the arrest provision does modify. The Bunker court found:
[T]he legislature intended the phrase "for which an arrest is required under RCW 10.31.100(2)(a) or (b)" to modify the previous two complete clauses, respectively. That is, "RCW 10.31.100(2)(a)" refers to the clause "or of a provision excluding the person from a residence, workplace, school, or day care, or of a provision prohibiting a person from knowingly coming within, or knowingly remaining within, a specified distance of a location," while "RCW 10.31.100(2) ... (b)" refers to "or of a provision of a foreign protection order specifically indicating that a violation will be a crime." Former RCW 26.50.110. This construction is not particularly surprising, insofar as the circumstances referenced are precisely those "for which an arrest is required" in each respective subsection of RCW 10.31.100(2). It also has the advantage of being the only construction whereby each of the subsections of RCW 10.31.100(2)-(a) and (b)-is not being applied to circumstances that, by its own terms, are governed solely by the other subsection.
Bunker, 144 Wash.App. at 419-20, 183 P.3d 1086. Though this interpretation is plausible, the present issue is whether the arrest provision clause modifies the antecedent "violation of the restraint provisions." We need not decide what antecedents the arrest provision does modify.
[5] Though Bunker and Williams argued that the rule of lenity should apply at the Court of Appeals, they did not make the argument before this court. "The rule of lenity requires us to interpret the statute in favor of the defendant absent legislative intent to the contrary." State v. Jacobs, 154 Wash.2d 596, 601, 115 P.3d 281 (2005). Because there is legislative intent to the contrary, the rule of lenity is not applicable in this case.
[1] The majority cites changes in the statute passed after these incidents occurred. Majority at 492. But don't these changes inherently support Bunker's argument that, pursuant to the language of former RCW 26.50.110(1), a gross misdemeanor required a mandatory arrest at the time he engaged in his behavior? Don't the changes necessarily mean the statute said something different (and presumably deficient) from what it says now? Why else would the legislature deem the changes necessary? In any event, we must consider the statute in effect at the time the violations occurred.
[2] The majority never explicitly finds the language of former RCW 26.50.1 10(1) unambiguous, which is the starting point (and in this case the ending point) for statutory interpretation. It strongly implies the statute is unambiguous, see majority at 492, but nonetheless derives legislative intent only after referencing other statutes and external sources. Id. at 490-92. Because former RCW 26.50.110(1) is plain and unambiguous on its face, this extra-statutory romp is improper.
[3] RCW 10.31.100(2)(a) requires an officer to arrest a person who violates terms of a no-contact order against "acts or threats of violence," or a person who enters or remains in a prohibited location. RCW 10.31.100(2)(b), which applies to foreign protection orders, is not at issue here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335095/ | 377 S.C. 179 (2008)
659 S.E.2d 193
GREEN TREE SERVICING, LLC as successor in interest to Conseco Finance Servicing Corp. as interest to Green Tree Financial Servicing Corporation, Plaintiff
v.
Reniata L. WILLIAMS a/k/a Reniata Garvin Williams; Scott L. Williams, BB&T Bankcard Corporation; The South Carolina Department of Motor Vehicles, Defendants, and
Green Tree Servicing, LLC as successor in interest to Conseco Finance Servicing Corp. as interest to Green Tree Financial Servicing Corporation, Respondents,
v.
Lueveania Garvin, Appellant.
No. 4344.
Court of Appeals of South Carolina.
Submitted January 2, 2008.
Decided February 20, 2008.
Rehearing Denied April 18, 2008.
*181 Lueveania Garvin, for Appellant.
Pearce W. Fleming, D. Randolph Whitt, and Martha S. Phillips, all of Columbia, for Respondents.
HUFF, J.:
Lueveania Garvin appeals the order of the special referee holding her interest in certain property was subject and junior to Green Tree's mortgages and that she was not entitled to damages for trespass. We reverse and remand.[1]
*182 FACTUAL/PROCEDURAL BACKGROUND
In September of 1995, Garvin deeded .23 acres of property to her granddaughter, Reniata Williams. The deed provided the property was to be used for residential purposes and further provided:
In the event Reni[a]ta L. Garvin Williams shall fail to use said property for residential purposes for a consecutive period of sixty (60) days or more, the aforementioned property shall revert back to Grantor or Grantor's heirs and assigns, in fee simple.
Thus, the interest Garvin transferred to Williams was a fee simple determinable while she retained a possibility of reverter.
Williams subsequently obtained two notes secured by mortgages on the property. Garvin was not a party to these mortgages. Williams had a mobile home placed on the property. The mobile home encroached onto Garvin's property by six feet.
On June 1, 2004, Williams wrote to Garvin that she no longer resided on the property and in recognition of the condition in the deed, she wished to return the property to Garvin.
Green Tree then brought this action for foreclosure of the mortgages in August of 2004. In an order filed December 30, 2004, the special referee ordered foreclosure of the mortgages. Garvin was not named a party to the action at this time. In April of 2005 Garvin wrote to Green Tree stating she would charge it $25.00 a day storage fee effective June 1, 2004 for the mobile home on her property. She explained $10.00 a day was for the part of the mobile home on the far end of her yard previously deeded to Williams and $15.00 a day was for the part of the mobile home that extended into her front yard.
Green Tree subsequently filed a petition for a rule to show cause requesting the court order Garvin to show cause why she should not be bound by the previous order and determine whether Garvin's interest was junior to Green Tree's mortgages. The court issued the rule as requested. Garvin answered asseverating Green Tree executed the mortgages with knowledge *183 of the possibility of reverter. She also asserted a claim for trespass.
After a hearing on the matter, the special referee held Garvin had no estate in the property until the possibility of reverter was triggered, which was after Green Tree had perfected its mortgage. Thus, the referee held Garvin's interest in the property was subject and junior to Green Tree's mortgage that was already in place when she acquired an estate in the property. In addition, the referee held that as Garvin had submitted no evidence of any diminution in the market value of her property due to the mobile home's presence on her property, she was not entitled to damages for trespass. However, the referee did order Green Tree to remove the trailer from Garvin's property. This appeal followed.
LAW/ANALYSIS
1. Mortgages
Garvin argues the special referee erred in holding her interest in the property was subject to and junior to Green Tree's mortgages. We agree.
A fee simple determinable is a grant that can be cut short when a given term expires. Scott v. Brunson, 351 S.C. 313, 316, 569 S.E.2d 385, 387 (Ct.App.2002). "It is an estate in fee `with a qualification annexed to it by which it is provided that it must determine whenever that qualification is at an end'" S.C. Dep't of Parks, Recreation, & Tourism v. Brookgreen Gardens, 309 S.C. 388, 392, 424 S.E.2d 465, 467 (1992) (quoting Purvis v. McElveen, 234 S.C. 94, 98, 106 S.E.2d 913, 915 (1959)). The wording of the grant allows for defeasance of the grantee upon the terms, covenants and conditions of the grant. Brookgreen Gardens, 309 S.C. at 392, 424 S.E.2d at 467. A possibility of reverter is the future interest that accompanies a fee simple determinable. Id. In the case of a possibility of reverter, the possessory estate vests immediately and automatically upon the happening of the event whereby the determinable or conditional fee is terminated. Batesburg-Leesville Sch. Dist. No. 3 v. Tarrant, 293 S.C. 442, 446, 361 S.E.2d 343, 346 (Ct.App.1987).
*184 Although the grantee of a fee simple determinable may transfer or assign the estate, the determinable quality of the estate follows the transfer or assignation. 28 Am.Jur. 2nd Estates § 30 (2000). The determinable fee may be mortgaged, subject to the qualification. 27 S.C. Jur. Mortgages § 19(e) (1996). The creator of the estate would have to join in the mortgage to subject the entire fee interest to the lien. Id.
The deed granting Williams the fee simple determinable estate was duly recorded and was referred to in the mortgage. Green Tree was on notice of the nature of the estate. See S.C.Code Ann. § 30-9-30 (2007) (stating recording of instrument is notice to all persons, sufficient to put them upon inquiry of the purport of the filed instrument and the property affected by the instrument); Binkley v. Rabon Creek Watershed Conservation Dist., 348 S.C. 58, 71, 558 S.E.2d 902, 909 (Ct.App.2001) (stating notice of a deed is notice of its whole contents). Garvin never joined in the mortgages and the mortgages were subject to the determinable quality of the estate. When the determinable fee was terminated, Green Tree's interest in the property terminated. Therefore, the special referee erred in holding Garvin's interest in the property was subject to Green Tree's mortgages.
2. Trespass
Garvin argues the special referee erred in holding her claim for trespass failed as she had not established a diminution in the market value of the property due to placement of the mobile home on her property. We agree.
If a plaintiff establishes a willful trespass, the damages from invasion of the plaintiff's legal rights will be presumed sufficient to sustain the action even though such damages may be only nominal and not capable of measurement. Hinson v. A.T. Sistare Construction Co., 236 S.C. 125, 113 S.E.2d 341, 344 (1960). Thus, Garvin did not need to establish a diminution in value to her property to maintain her claim for trespass. We reverse the order of the special referee and remand the trespass claim for further proceedings.
CONCLUSION
We reverse the special referee's holding that Garvin's interest in the property was subject and junior to Green Tree's *185 mortgages. We further reverse the special referee's ruling on Garvin's trespass claim and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED
PIEPER, J., and CURETON, A.J., concur.
NOTES
[1] We decide this case without oral argument pursuant to Rule 215, SCACR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335187/ | 659 S.E.2d 353 (2008)
HADDEN
v.
HADDEN.
No. S07F1685.
Supreme Court of Georgia.
March 28, 2008.
Reconsideration Denied April 11, 2008.
*354 Jennifer Landrum Hadden, pro se.
Tucker, Everitt, Long, Brewton & Lanier, John B. Long, Augusta, for appellee.
HINES, Justice.
Jennifer Landrum Hadden ("Ms. Hadden") appeals from the trial court's final judgment and decree of divorce ending her marriage to Thomas Chad Hadden ("Mr. Hadden").[1] For the reasons that follow, we affirm.
The couple was married in 1993; the marriage produced two children, one born in 1995, and one born in 1997. Mr. Hadden filed his complaint for divorce on September 30, 2005. The trial court issued a temporary order on December 29, 2005, providing for joint legal and physical custody of the children. After receiving reports from the children's guardian ad litem and from a psychologist who examined Ms. Hadden, the court amended its temporary order on February 27, 2006, and gave temporary custody of the children to Mr. Hadden, with visitation rights to Ms. Hadden; the court also awarded temporary alimony to Ms. Hadden. Ms. Hadden then submitted a report from a forensic psychiatrist who evaluated her, and the court issued the second amended temporary order on June 28, 2006, again providing for joint *355 legal and physical custody of the children. In a third amended temporary order issued on October 4, 2006, the trial court increased Ms. Hadden's visitation time with the children, and ordered that both parties meet with the psychologist who provided the earlier report. The court issued its final judgment and decree of divorce on February 3, 2007, and awarded joint legal and physical custody, with Mr. Hadden having primary physical custody; no child support was awarded to either party. Alimony was awarded to Ms. Hadden.
1. The trial court's final order does not contain separate findings of fact, and Ms. Hadden asserts that this is error. However, the record is devoid of any request by her or Mr. Hadden that such be provided, and thus, none were required to be made in this non-jury trial. Messaadi v. Messaadi, 282 Ga. 126, 127-128(1), 646 S.E.2d 230 (2007). Further, we note that there are no transcripts of the final hearing, or certain other earlier hearings,[2] included in the record, and it does not appear that these hearings were reported. Although the record discloses some evidence that was placed before the trial court, in the absence of transcripts that would detail what was presented in the hearings, this Court assumes that the evidence adduced therein was sufficient to support the trial court's findings. See Fine v. Fine, 281 Ga. 850, 642 S.E.2d 698 (2007).
2. Ms. Hadden urges that in making its final custody award, the trial court did not rule in the best interests of the children, and imposed upon her the burden to disprove certain allegations by Mr. Hadden, rather than treat the parties equally. See OCGA § 19-9-3(a) & (b). However, nothing in the court's final order, or the record, shows that the court's custody ruling was based on any standard other than what is in the best interests of the children, and nothing shows that the court required Ms. Hadden to disprove any allegations of Mr. Hadden's. Record evidence shows that the psychologist, who performed multiple custody evaluations, reported that Ms. Hadden operated under the influence of delusions, and concluded that it was in the best interests of the children that primary physical custody be placed in Mr. Hadden. Although Ms. Hadden asserts that other evidence presented supports a conclusion that she was at least as fit to serve as a custodial parent as Mr. Hadden, such evidence only presents a question of fact requiring the trial court's resolution under the proper standard, and there was no abuse of the trial court's discretion. See Frazier v. Frazier, 280 Ga. 687, 689(2), 631 S.E.2d 666 (2006); Urquhart v. Urquhart, 272 Ga. 548(1), 533 S.E.2d 80 (2000). Similarly, there was no abuse of discretion in the trial court's awarding Ms. Hadden physical custody of the children for five nights during a regular two-week schedule; contrary to Ms. Hadden's contention that the trial court did not "give any serious consideration" to granting her primary physical custody, the court's temporary orders amply indicate that the court did consider such an arrangement, and there is evidence in the record supporting the court's award. See Echols v. Echols, 281 Ga. 546, 548-549(2), 640 S.E.2d 257 (2007).
3. Ms. Hadden also argues that the trial court could not alter its temporary custody orders without a demonstrated change in material condition. However, the statutory provision she cites, OCGA § 19-9-1(b), applies to modifications after a final custody award, not to temporary awards. See Daniel v. Daniel, 250 Ga.App. 482, 483-484(2), 552 S.E.2d 479 (2001). The temporary awards of the court were just that, temporary, and the final custody determination need not be the same as that of any temporary order. See OCGA § 19-9-3(e); Moon v. Moon, 277 Ga. 375, 376(2), 589 S.E.2d 76 (2003).
4. In its final order, the trial court awarded alimony to Ms. Hadden in the amount of $1,000.00 a month, for a period of three years. Ms. Hadden contends that, as her temporary award of alimony was $2,130.00 a month, the award in the final order is inadequate, especially in light of her car payment of $806.00 a month. However, the trial court found that Ms. Hadden holds a *356 doctoral degree in education, "has not made tremendous efforts" to support herself during the pendency of the suit, and should be self-supporting in her real estate business in three to four years. Again, to the extent that evidence appears in the record, it supports the trial court's findings, and no abuse of discretion has been shown. Rieffel v. Rieffel, 281 Ga. 891, 892(1), 644 S.E.2d 140 (2007). See also Fine, supra.
Judgment affirmed.
All the Justices concur.
NOTES
[1] This Court automatically granted Wife's discretionary appeal pursuant to this Court's pilot project. See Wright v. Wright, 277 Ga. 133, 587 S.E.2d 600 (2003).
[2] The only transcript appearing in the record is that of the hearing prior to the trial court's first temporary order; the trial court's orders show that at least four other hearings were held. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335108/ | 659 S.E.2d 605 (2007)
METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
v.
MITCHELL.
No. A07A0978.
Court of Appeals of Georgia.
December 14, 2007.
*606 Thomas, Kennedy, Sampson & Patterson, Thomas G. Sampson II, Atlanta, Christy L. Bigelow, for appellants.
Andrews, Knowles & Princenthal, Adam P. Princenthal, Atlanta, for appellee.
PHIPPS, Judge.
Metropolitan Atlanta Rapid Transit Authority (MARTA) and Schindler Elevator Corporation appeal the judgment entered against them upon a jury verdict in favor of Donna Mitchell, contending that the trial court should have directed a verdict in their favor with respect to her claim for attorney fees. We agree. For reasons that follow, the judgment is reversed, and MARTA and Schindler are entitled to a new trial. This case is remanded for proceedings not inconsistent with this opinion.
On December 2, 2003, Mitchell was injured when she tripped and fell when boarding an elevator at a MARTA train station. After her fall, Mitchell noticed an approximately three-inch difference between the level of the elevator floor and the level of the train station floor. Certain of MARTA's personnel performed monthly inspections of elevators on MARTA's properties. In addition, Schindler was under contract with MARTA to perform monthly maintenance on its elevators and to service them when problems were reported.
Mitchell sued MARTA and Schindler, claiming that their negligence had allowed the elevator mechanisms to open the elevator door for passenger use without first leveling the elevator floor with the train station floor. She sought to recover damages for pain and suffering, medical expenses, loss of capacity to work, as well as litigation expenses, including attorney fees.
At trial, the court denied MARTA's and Schindler's motions for directed verdict on Mitchell's claims for negligence and attorney fees. In its final charge, the court pertinently instructed the jury on damages for pain and suffering, medical expenses, and loss of capacity to work. In addition, the court instructed the jury on the recovery of litigation expenses under OCGA § 13-6-11. The verdict form required the jury to state (1) whether it was finding for the plaintiff or MARTA; (2) whether it was finding for the plaintiff or Schindler; and (3) the "amount of your damage award," if finding for Mitchell "against either or both defendants." The *607 jury entered "plaintiff" for the first two inquiries and a dollar amount for the third inquiry.
On appeal, MARTA and Schindler contend that the trial court erred by denying them a directed verdict on Mitchell's claim for litigation expenses, specifically attorney fees. They assert that there was evidence of a bona fide controversy regarding liability because the evidence did not demand a finding that Mitchell exercised ordinary care. In addition, they assert that there was no evidence that they had acted in bad faith. MARTA and Schindler thus claim entitlement to a new trial because "a general verdict form was used, and the award of attorney[ ] fees cannot be separated from the entire award."
A motion for directed verdict shall be granted "[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict."[1] "In determining whether any conflict in the evidence exists, the court must construe the evidence most favorably to the party opposing the motion for directed verdict. The standard used to review the grant or denial of a directed verdict is the `any evidence' test."[2]
OCGA § 13-6-11 provides, "The expenses of litigation generally shall not be allowed as a part of the damages; but where . . . the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them." "Where a bona fide controversy exists, attorney[] fees may be awarded under OCGA § 13-6-11 only where the party sought to be charged has acted in bad faith in the underlying transaction."[3]
We agree with MARTA and Schindler that there was a bona fide controversy regarding liability because the evidence did not demand a finding that Mitchell exercised ordinary care. MARTA and Schindler's counsel elicited testimony from Mitchell that when she entered the elevator, she was looking "straight ahead" and that had she been looking at the floor, she would have been able to see the variance. But as instructed in Robinson v. Kroger Co.,[4]
an invitee's failure to exercise ordinary care is not established as a matter of law by the invitee's admission that he did not look at the site on which he placed his foot or that he could have seen the hazard had he visually examined the floor before taking the step which led to his downfall. Rather, the issue is whether, taking into account all the circumstances existing at the time and place of the fall, the invitee exercised the prudence the ordinarily careful person would use in a like situation.[5]
In this case, whether Mitchell exercised ordinary care for her own personal safety was a question for the jury to resolve.[6]
In light of a bona fide controversy, recovery of litigation expenses under OCGA § 13-6-11 required evidence of bad faith conduct by MARTA or Schindler.[7] Mitchell cites evidence that MARTA and Schindler were aware of the conditions that would cause the elevator to mislevel and that MARTA personnel had known of previous occasions when the elevator had misleveled because it was not "warmed up." Mitchell asserts that, nevertheless, MARTA and Schindler failed to "correct the hazardous condition."
The evidence showed that to function properly, the hydraulic elevator required oil at or above a certain temperature. If the temperature of the oil dropped too low, the oil would *608 thicken and likely cause the elevator not to level properly. Cold weather and infrequent use of the elevator were factors that would cause the oil to thicken. The oil flowed to the elevator through an oil line, and an oil tank and heater, which warmed the oil, were located about 200 or 300 feet from the elevator.
It is undisputed that on the day of the incident, MARTA and Schindler understood the requirements for proper functioning of the elevator. And there was evidence that "[i]t was cold" on the day Mitchell fell. After Mitchell reported her fall to MARTA, a Schindler serviceman arrived to find that the elevator was misleveling. After working on the elevator, he recorded on a service ticket, "Elevator was one-and-a-half inches above top landing. Rode elevator for 30 minutes to warm up elevator. Elevator started leveling in fine. Turned oil heater on. Adjusted valve." According to the serviceman, the valve adjustment was made to "compensate for the cold oil a little bit."
The jury found MARTA and Schindler liable for negligence, and this finding is not contested on appeal. "But mere negligence will not support an award of attorney fees based on bad faith."[8]
[B]ad faith cannot be prompted by an honest mistake as to one's rights or duties but must result from some interested or sinister motive. Bad faith is not simply bad judgment or negligence, but it imports a dishonest purpose or some moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will.[9]
Construed most favorably to Mitchell, the evidence did not authorize the jury to find that MARTA's or Schindler's conduct rose to such level. There was no showing of any interested or sinister motive, dishonest purpose, moral obliquity, conscious wrongdoing, or any other species of bad faith.[10] In the absence of any evidence of bad faith, the trial court erred by not directing a verdict against Mitchell on her claim for litigation expenses under OCGA § 13-6-11.[11]
There is no merit in Mitchell's argument that, in light of the use of the general verdict form, the issue whether the court erroneously denied MARTA's and Schindler's motions for a directed verdict was either waived or no more than harmless error.[12] Under the circumstances presented *609 here, "the opposite of this is true: `since the jury found a general verdict for the plaintiff against the defendant[s], the verdict cannot stand for the reason that this court cannot determine whether the verdict was entered upon a proper basis.'"[13] This result is not changed by the purported juror affidavit attached to Mitchell's appellate brief concerning whether the verdict comprised, in part, litigation expenses.[14]
MARTA and Schindler are entitled to a new trial. Because the record shows that comparative negligence was raised by the evidence and the trial court charged on that issue,
the recovery of damages and the liability of the defendant[s] are issues which are "inextricably joined." . . . It follows that reversal of the judgment entered on a general verdict returned for [Mitchell] in [this] case in which comparative negligence will be an issue on retrial necessarily mandates that the retrial encompass both the issues of damages and liability.[15]
Judgment reversed and case remanded.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1] OCGA § 9-11-50(a).
[2] Norfolk Southern Corp. v. Smith, 262 Ga. 80, 84(2), 414 S.E.2d 485 (1992) (citation omitted).
[3] Latham v. Faulk, 265 Ga. 107, 108(2), 454 S.E.2d 136 (1995) (citation omitted).
[4] 268 Ga. 735, 493 S.E.2d 403 (1997).
[5] Id. at 748(2)(b), 493 S.E.2d 403; see Augusta Country Club v. Blake, 280 Ga.App. 650, 656(1)(c), 634 S.E.2d 812 (2006) (applying Robinson, supra, in reviewing correctness of ruling on motion for directed verdict).
[6] See Robinson, supra.
[7] Latham, supra.
[8] Hartsock v. Rich's Employees Credit Union, 279 Ga.App. 724, 727(4), 632 S.E.2d 476 (2006) (citation omitted); Rapid Group v. Yellow Cab, etc., 253 Ga.App. 43, 49-50(4), 557 S.E.2d 420 (2001).
[9] Rapid Group, supra at 49, 557 S.E.2d 420 (citations and punctuation omitted).
[10] See generally id. at 49-50, 557 S.E.2d 420; compare Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 343(8)(b), 319 S.E.2d 470 (1984) (where evidence showed that car manufacturer had actual knowledge that if certain cars were struck from the rear they would burn, with a strong probability of resulting injury to the occupants, yet after weighing the costs of corrective action against the benefit of profits, decided not to correct this defect or warn car owners of the danger created thereby, the jury was authorized to find bad faith on the part of the manufacturer).
[11] Latham, supra; Hartsock, supra; Rapid Group, supra.
[12] The cases Mitchell cites to support her arguments of harmless error and waiver are inapposite. See, e.g., Davis v. Whitford Properties, 282 Ga.App. 143, 147(2), 637 S.E.2d 849 (2006) (evidence of bad faith authorized an award for attorney fees; claim that the amount of attorney fees awarded was not authorized because the evidence submitted did not itemize the underlying work was waived, where each counsel tendered their litigation expenses into evidence without such itemization and each party "consented to the method of presenting litigation expenses to the jury and made no objections to such presentation when they had the opportunity to do so"); Trust Assoc. v. Snead, 253 Ga.App. 475, 477-478(2), 559 S.E.2d 502 (2002) (evidence authorized recovery for failure to pay pursuant to promissory note; trial court did not err in refusing to grant new trial pertaining to interest because general verdict form did not show whether interest had been included and the parties did not timely object to the form of the verdict returned); Witty v. McNeal Agency, 239 Ga.App. 554, 559-562(3), (4), 521 S.E.2d 619 (1999) (where evidence authorized recovery on the sole theory of liability (tortious interference of contract) and where neither the pleadings nor the evidence raised a breach of contract issue, the claim that the special verdict form was "erroneous and ambiguous" because it provided only for breach of contract was waived by failure to object to such irregularity before jury was excused); Brock v. Douglas Kohoutek, L.P., 225 Ga.App. 104, 108-109(3), 483 S.E.2d 342 (1997) (theory of liability was supported by the evidence; claim that the plaintiff had not been damaged in the amount precisely awarded was waived by use of general verdict form); Ploof Truck Lines v. Bennett, 221 Ga.App. 789, 791-792(3), 472 S.E.2d 552 (1996) (evidence authorized recovery for negligence; claim that the verdict form was not "proper" because it included a suggestion to counsel was waived because if form of verdict is improper, objection as to its irregularity must be made at the time the verdict is rendered).
[13] Troncalli v. Jones, 237 Ga.App. 10, 13(1), 514 S.E.2d 478 (1999), quoting Ga. Power Co. v. Busbin, 242 Ga. 612, 616-617(8), 250 S.E.2d 442 (1978); see Lee v. Mercedes-Benz USA, LLC, 276 Ga.App. 28, 30(2), 622 S.E.2d 361 (2005); Wolff v. Middlebrooks, 256 Ga.App. 268, 271-272(3), 568 S.E.2d 88 (2002).
[14] Rivera v. Harris, 259 Ga. 171(1), 377 S.E.2d 844 (1989) (exhibits attached to an appellate brief but not appearing in the record transmitted by the trial court cannot be considered by appellate court).
[15] Bridges Farms v. Blue, 267 Ga. 505-506, 480 S.E.2d 598 (1997) (citations omitted); see Head v. CSX Transp., 271 Ga. 670, 673(4), 524 S.E.2d 215 (1999) (citing Bridges, supra, for the proposition that where comparative negligence is an issue at trial, liability and damages are so "inextricably joined" that a new trial on damages only is impermissible). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335073/ | 659 S.E.2d 668 (2008)
INTERNAL MEDICINE ALLIANCE, L.L.C. et al.
v.
BUDELL.
No. A07A2357.
Court of Appeals of Georgia.
March 10, 2008.
*670 R. Keegan Federal Jr., John P. Marinan, Atlanta, for appellants.
Wilson, Morton & Downs, Robert E. Wilson, Debra A. Golymbieski, Decatur, for appellee.
BERNES, Judge.
Following a bench trial in this action involving a business dispute, defendants Internal Medicine Alliance, LLC ("IMA"), Izabella Verbitsky, M.D., and Alex Goldstein appeal from the final order and judgment entered in favor of plaintiff J. William Budell, M.D. Appellants contend that the superior court erred by vacating a consent order incorporating a settlement agreement purportedly reached by the parties; by declining to take account of a lease obligation as an accrued liability in valuing Budell's ownership interest in IMA; and by holding that Verbitsky alone should be held legally responsible for the lease obligation. Appellants further contend that there was insufficient evidence to support Budell's claims for breach of fiduciary duty, conversion, punitive damages, and attorney fees under OCGA § 13-6-11. We reverse the superior court's judgment entered in favor of Budell's claims for conversion and punitive damages and remand for a new trial on those counts. Additionally, we vacate the attorney fees award and remand for the fees to be limited to those incurred by Budell in prosecuting his successful claims. We affirm in all other respects.
"On appeal from the entry of judgment in a bench trial, the evidence must be viewed in the light most favorable to the trial court's findings of fact." Realty Lenders v. Levine, 286 Ga.App. 326, 326-327, 649 S.E.2d 333 (2007). So viewed, the record reflects that Verbitsky and Budell are physicians who practice internal medicine. In early 2005, they organized IMA as a limited liability company ("LLC") for the purpose of operating a medical practice together. The articles of organization filed with the Secretary of State of Georgia stated that IMA was to be a manager-managed LLC. Notably, Verbitsky and Budell never entered into a written operating agreement for IMA. They agreed, however, that they would each hold a 50 percent ownership interest in IMA, would share equally in the profits and losses, and would jointly manage IMA. While they were both practicing at IMA, neither Verbitsky nor Budell received any salary, compensation, draw, distribution, or any other money in return for participating in the practice.
Verbitsky and Budell made capital contributions to IMA in the amount of $70,000 and $70,199.21, respectively. The capital contributions were pooled together and used for *671 startup expenses, including the purchase of computer hardware and software, phone equipment, furniture, and office space construction. As part of the startup of the practice, IMA entered into a seven-year lease for office space in the LaVista Office Park in DeKalb County. Under the lease agreement, Verbitsky and Budell both agreed to serve as guarantors of $70,000 in costs associated with the construction of the office space.
Problems developed before IMA opened for business when Verbitsky's husband, Goldstein, threatened Budell that the medical practice would break up if he was not made a member of IMA. Goldstein was not a physician, and Budell would not agree to Goldstein becoming a member. After IMA opened on July 5, 2005, the tensions between Verbitsky, Goldstein, and Budell continued to escalate to the point that Goldstein threatened Budell with physical violence.
Eight days after IMA opened, the parties met to discuss how to separate their medical practices. Initially, the parties agreed that Verbitsky would leave IMA and move her practice elsewhere, while Budell would stay at IMA and become the sole manager and member of the practice. A week later, Goldstein approached Budell and informed him, "No, we are staying. You are going." In order to avoid further hostility, Budell agreed to leave IMA and form his own practice by the end of 2005. It was understood by the parties that once Budell left at the end of 2005, he would be entitled to redeem his 50 percent ownership interest in IMA and then would cease to be a member of IMA. Despite their agreement, tensions between the parties continued to escalate during the interim period before Budell left IMA. As a result, Budell filed the present lawsuit in September 2005 in the Superior Court of DeKalb County in which he sought, among other things, the value of his 50 percent ownership interest and attorney fees under OCGA § 13-6-11.
On October 3, 2005, the parties appeared at a hearing before the superior court to argue various motions. During the hearing, the parties asked for a recess so that they could discuss a possible settlement. After the parties concluded their discussion and the court reconvened the hearing, the parties took turns stating and attempting to clarify on the record the terms of the agreement they purportedly had reached. They specifically noted that "[e]verything in [the] case [would] remain[] active" until all financial issues were resolved, and that only upon resolution of those issues would the case be dismissed with prejudice. The superior court then pronounced that the alleged settlement agreement that had been placed on the record would serve as an order binding on all parties.
Both parties subsequently filed motions for contempt based on alleged noncompliance with the consent order. On November 21, 2006, the contempt motions came on for hearing before a different superior court judge to whom the case had been reassigned. After reviewing the October 3 transcript, the superior court ruled sua sponte that there had been no "meeting of the minds" and no enforceable consent order that could serve as a predicate for the contempt motions. Accordingly, the superior court vacated the purported consent order and ruled that the matter would proceed to a bench trial at a later date if the parties could not resolve their differences.
Budell spent his last work day at IMA on December 16, 2005. Following his departure, Verbitsky by her own admission was the sole member "running" the IMA practice. At the time he left IMA, Budell had generated over $40,000 in accounts receivable owed to IMA. But, under Verbitsky's management after Budell's departure, only a small portion of this amount was ultimately collected from insurance providers for the benefit of IMA. During this same period, Verbitsky reimbursed herself for her $70,000 capital contribution out of IMA's bank account, but chose not to reimburse Budell for his $70,199.21 capital contribution.
In the ensuing weeks, the parties were unable to resolve their remaining disputes, and Budell filed an amended complaint adding claims for breach of fiduciary duty, conversion, *672 and punitive damages.[1] A bench trial was subsequently held on Budell's claims in late January 2006.
At the bench trial, both parties agreed that Budell was entitled to redeem his 50 percent ownership interest in IMA, but they disagreed over the value of that interest measured as of December 31, 2005. Specifically, Budell presented expert testimony that based on 2005 business records, the value of IMA's net assets, on a cash basis, totaled $143,915 and the value of IMA's accounts receivable totaled $139,536. Based on these combined figures, Budell's valuation expert testified that IMA was worth $283,451 at the end of 2005, and that Budell's 50 percent ownership interest thus was worth $141,725.50. In contrast, while appellants' valuation expert substantially agreed with the numbers utilized by Budell's expert, he went on to testify that the future lease obligation of IMA had to be included in the valuation as an accrued liability. According to the appellants' expert, if the lease obligation was properly included, the value of IMA would be -$19,749, and Budell's interest would be worth -$9,874.
Also at the bench trial, Budell contended that Verbitsky breached her fiduciary duty to IMA and Budell by failing to have the accounts receivable for his patients properly processed and collected from insurance providers. He further contended that Verbitsky was liable for conversion for not reimbursing him for his capital contribution made to IMA. Finally, Budell asserted a claim for punitive damages predicated on his conversion claim and sought attorney fees under OCGA § 13-6-11.
After hearing all the evidence, the superior court entered a final order and judgment containing detailed findings of fact and conclusions of law. Declining to include the lease obligation in the valuation of IMA, the superior court credited Budell's expert valuation and found that his 50 percent ownership interest in IMA was worth $141,725.50. The superior court further concluded that Verbitsky was liable for breach of fiduciary duty and conversion, granted punitive damages based on the conversion claim, and awarded Budell his attorney fees and expenses.
1. Appellants contend that the superior court erred by vacating the October 3, 2005 order that incorporated a settlement agreement allegedly reached by the parties. Appellants' sole argument in this regard is that the superior court to whom the case had been reassigned lacked subject matter jurisdiction to vacate the previously entered order when it heard the contempt motions. Their argument is without merit.
"Jurisdiction of the subject matter is the power to deal with the general abstract question, to hear the particular facts in any case relating to this question, and to determine whether or not they are sufficient to invoke the exercise of that power." (Citations and punctuation omitted.) Williams v. Fuller, 244 Ga. 846, 849(3), 262 S.E.2d 135 (1979). Here, the superior court clearly had subject matter jurisdiction over this action involving a business dispute. See Ga. Const. 1983, Art. VI, Sec. IV, Par. I; OCGA § 15-6-8. Likewise, the superior court plainly had jurisdiction to hear the contempt motions after the case was reassigned to it. Cf. Rockwood Intl. Systems Supply v. Rader Cos., 255 Ga.App. 881, 883(1), 567 S.E.2d 104 (2002) ("[I]f proceedings are transferred from a court rendering judgment to another court, then the latter court acquires jurisdiction to hold a party in contempt of the judgment").
Furthermore, trial courts, "while a cause is pending before them, have control over the record and proceedings, their orders and judgments, during the term; and after the term if the cause is still pending before them, and may amend or set them aside." Bradley v. Tattnall Bank, 170 Ga.App. 821, 823(1), 318 S.E.2d 657 (1984). See also Ritter v. State, 272 Ga. 551, 553(2), 532 S.E.2d 692 (2000). This rule applies, irrespective of whether the case has been reassigned to a different trial judge. See Ritter, 272 Ga. at *673 552-554(2), 532 S.E.2d 692; Bradley, 170 Ga. App. at 824(1), 318 S.E.2d 657. At the time that the superior court vacated the October 3 ruling, the instant case remained pending in that court; contrary to appellants' contention, the October 3 ruling was not a final order that disposed of the case. By its own terms, the ruling provided that "[the] case [would] remain[] active" and no dismissal would occur until all financial issues had been resolved by the parties, and it is undisputed that these issues were never in fact resolved or a dismissal order entered. As such, no final order had been entered in the matter and the case remained pending, so the superior court had authority to reconsider the October 3 ruling, vacate it, and order that the matter proceed to trial. See Ford Motor Credit Co. v. Williams, 194 Ga.App. 405, 406(1), 390 S.E.2d 640 (1990). Compare Levingston v. Crable, 203 Ga.App. 16, 416 S.E.2d 131 (1992). It follows that appellants have alleged no basis for reversal.
2. Appellants next contend that the trial court erred in its award of damages by declining to take account of the future lease obligation as an accrued liability in valuing Budell's 50 percent ownership interest in IMA. Again, we disagree.
The issue of damages is a matter for the factfinder here, the superior court that generally should not be interfered with on appeal. See Lou Robustelli Marketing Svcs. v. Robustelli, 286 Ga.App. 816, 820-821(4), 650 S.E.2d 326 (2007). As such, the superior court's award of damages will be upheld so long as it is within the range of testimony presented at trial. Wachovia Bank of Ga. v. Namik, 275 Ga.App. 229, 231(1), n. 3, 620 S.E.2d 470 (2005).
At trial, Verbitsky testified as to her understanding of the agreement that had been reached with Budell concerning the valuation of his 50 percent ownership interest at the time he left IMA in December 2005. According to Verbitsky, the parties had agreed that the valuation of Budell's interest would include a portion of the "fixed assets, minus depreciation," plus what he "brought" to the practice, minus "overhead." Verbitsky further testified that she had never asked Budell to assume any obligation for the remaining payments on the lease. Given this combined testimony, interpreted in the light most favorable to the judgment, the superior court was entitled to find that the parties had agreed that the future lease payments would be excluded from "overhead" and would not be used in the valuation of Budell's ownership interest. We therefore affirm the superior court's damages award because it was within the range of the trial testimony.
3. Appellants assert that the superior court erred by ruling that Verbitsky alone should be held legally responsible for the lease obligation. We disagree because the superior court never made such a ruling. Rather, we construe the superior court as simply ruling that the valuation of Budell's ownership interest would not include the future lease obligation as an accrued liability a ruling supported by the testimony at the bench trial, as discussed above in Division 2. Moreover, it is clear from the language of the lease that IMA, not its individual members, was liable for the lease obligation. See also OCGA § 14-11-303(a). Verbitsky and Budell merely guaranteed the construction costs associated with the lease agreement. And, we do not read the superior court's order as purporting to release either Verbitsky or Budell from their obligations as guarantors. Accordingly, we find no ground for reversal.
4. Appellants further contend that there was insufficient evidence to support Budell's breach of fiduciary duty claim. The trial court found that Verbitsky breached her fiduciary duty to IMA and Budell by failing to have his accounts receivable properly processed and collected from insurance providers after he departed from IMA in December 2005. There was sufficient evidence to support this finding.
Managing members of an LLC owe fiduciary duties to the LLC and its member investors. See OCGA § 14-11-305(1) ("A member or manager shall act in a manner he or she believes in good faith to be in the best interests of the limited liability company and with the care an ordinarily prudent person in a like position would exercise under similar circumstances."); Argentum Intl. v. Woods, 280 Ga.App. 440, 447-448(3), 634 S.E.2d 195 *674 (2006). See also VGS, Inc. v. Castiel, No. C.A. 17995, 2000 WL 1277372, at *4 (Del.Ch. Aug. 31, 2000), aff'd, 781 A.2d 696 (Del.2001); Lerner v. Westreich, No. 603184-2005, 12 Misc.3d 1164(A), 2006 WL 1540310, at *3 (N.Y.Sup.Ct. June 5, 2006); Tzolis v. Wolff, No. 108353/05, 12 Misc.3d 1151(A), 2006 WL 1310621, at * 7 (N.Y.Sup.Ct. Mar. 20, 2006).[2] Thus, a managing member must act with the "utmost good faith and loyalty" in managing the LLC. Quinn v. Cardiovascular Physicians, 254 Ga. 216, 217(2), 326 S.E.2d 460 (1985).
Appellants contend that Verbitsky did not exercise management over IMA and that to the extent that she did, it was agreed between Verbitsky and Budell that each physician would handle his or her own accounts receivable. The evidence, when construed in favor of the superior court's judgment, reflects otherwise. By her own admission at trial, Verbitsky was the sole member "running" the IMA practice after Budell departed in December 2005. At that point, Budell had turned in his keys to IMA and did not have access to that office space. Based on this evidence, the superior court was authorized to conclude that after Budell's departure, Verbitsky became the sole managing member of IMA, and Budell became a passive member investor. It follows that as the sole managing member of IMA, Verbitsky owed a fiduciary duty to IMA and Budell to administer and supervise the affairs of IMA in the manner "she believ[ed] in good faith to be in the best interests of the [medical practice]." OCGA § 14-11-305(1). See also Argentum Intl., 280 Ga.App. at 447(3), 634 S.E.2d 195.[3]
Moreover, additional evidence in the record also supports a finding that Verbitsky breached her fiduciary duty. Budell testified that it was his standard practice at IMA to complete "super bill[s]" standardized forms filled out by a physician after he or she sees a patient that contain codes for services performed and to provide them to the billing clerk for processing and collection from insurance providers. The processing of super bills plays a critical role in a medical practice, since, according to the trial testimony, the general rule is that an insurance provider that is not billed within six months from the time of service will not pay the bill. When he departed in December 2005, Budell did not take his super bills with him, since they were accounts receivable owed to IMA. In fact, the outstanding super bills represented over $40,000 in accounts receivable that were to be paid to IMA. Budell testified that no one from IMA ever contacted him about any outstanding problems with his super bills.
After Budell's departure, the IMA billing clerk asked Verbitsky for guidance on what to do about Budell's outstanding super bills, but she did not get "any answers" from Verbitsky. Verbitsky never instructed the billing clerk to call, write, or otherwise contact Budell about the super bills, even though his new medical practice was located in the same office complex as IMA; the super bills were just "left . . . hanging." In contrast, during this same time period, Verbitsky hired an additional billing clerk specifically to assist with the processing of her own super bills, but not Budell's. As a result of this difference in treatment, only a small portion of Budell's $40,000 in accounts receivable was collected from insurance providers, while $98,151 of Verbitsky's accounts receivable was collected.
Based on this evidence, the superior court was entitled to find that Verbitsky failed to act in the best interests of IMA and Budell, and failed to exercise ordinary care, when she made the decision not to take any steps to have Budell's super bills processed and *675 collected after his departure. Moreover, given the high level of hostility and the bad blood between the parties over the operation of IMA, the superior court was authorized to find that Verbitsky's decision was made in bad faith in an effort to negatively impact Budell's ownership interest in IMA. Therefore, the superior court was authorized to find that Verbitsky breached her fiduciary duty owed to IMA and Budell. See OCGA § 14-11-305(1); Argentum Intl., 280 Ga.App. at 447-448(3), 634 S.E.2d 195.
5. Appellants likewise argue that there was insufficient evidence to support Budell's conversion claim, as well as the punitive damages that were awarded based on that claim. The superior court found that Verbitsky was liable for conversion based on her failure to repay to Budell the $70,199.21 capital contribution he made to IMA, and the court went on to award punitive damages based on the successful claim of conversion. We conclude that there was insufficient evidence to support the trial court's finding that Verbitsky was liable for conversion and its award of punitive damages.[4]
"In order to establish a claim for conversion, the complaining party must show (1) title to the property or the right of possession, (2) actual possession in the other party, (3) demand for return of the property, and (4) refusal by the other party to return the property." (Citation and punctuation omitted.) Metzger v. Americredit Financial Svcs., 273 Ga.App. 453, 454, 615 S.E.2d 120 (2005). Conversion is not available as a cause of action with regard to intangible property interests that have not been merged into a document. See Southern Cellular Telecom v. Banks, 208 Ga.App. 286, 290(1), 431 S.E.2d 115 (1993). Compare Decatur Auto Center v. Wachovia Bank, 276 Ga. 817, 583 S.E.2d 6 (2003) (checks and other negotiable instruments can be converted). Hence, conversion is not a viable claim where there is nothing more than a failure by the defendant to pay money owed to the plaintiff. See LaRoche Indus. v. AIG Risk Mgmt., 959 F.2d 189, 191-192(II)(A) (11th Cir.1992) (applying Georgia law); Decatur Auto Center, 276 Ga. at 821, n. 8, 583 S.E.2d 6; Faircloth v. A.L. Williams & Assoc., 206 Ga.App. 764, 768(1), 426 S.E.2d 601 (1992) (holding that mere "contract debt . . . was not subject to an act in tort for conversion").
Here, Budell did not allege that his capital contribution was entrusted to Verbitsky for a specific designated purpose and was then misused by her. Compare GLW Intl. Corp. v. Yao, 243 Ga.App. 38, 42(3)(b), 532 S.E.2d 151 (2000). See LaRoche Indus., 959 F.2d at 192(II)(A) (concluding that there was no conversion as a matter of law when the case did not "involve a sum of money entrusted to someone for a particular purpose" that was then misapplied). Indeed, Budell testified that the capital contributions were combined together and properly used for startup expenses, including the purchase of computer hardware and software, phone equipment, furniture, and office space construction. Budell's claim instead was that he should be reimbursed for the amount he contributed in capital to IMA just as Verbitsky reimbursed herself for the amount she contributed in capital. Accordingly, Budell alleged and attempted to prove nothing more than a failure by Verbitsky to pay back money allegedly owed to him, which could not serve as the ground for a conversion claim. See LaRoche Indus., 959 F.2d at 191-192(II)(A); Decatur Auto Center, 276 Ga. at 821, n. 8, 583 S.E.2d 6; Faircloth, 206 Ga. App. at 768(1), 426 S.E.2d 601. We therefore reverse the superior court's finding that there was sufficient evidence to support a conversion claim and remand for a new trial. And, because the punitive damages claim was predicated on the finding of conversion, we reverse and remand for a new trial on that claim as well. See Walker County v. Tri-State Crematory, 284 Ga.App. 34, 40(1), 643 S.E.2d 324 (2007) (a party must succeed on the underlying tort claim to obtain punitive damages based on that claim).
6. Finally, appellants assert that there was insufficient evidence to support Budell's *676 claim for attorney fees under OCGA § 13-6-11. We conclude that there was sufficient evidence to support an attorney fees award, but that the award must be apportioned between successful and unsuccessful claims.
Under OCGA § 13-6-11, attorney fees and expenses may be awarded "where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense." Whether fees and expenses should be awarded is a matter for the factfinder and will be affirmed if there is any evidence to support the award. See Paine v. Nations, 283 Ga. App. 167, 171(2)(d), 641 S.E.2d 180 (2006).
In the present case, the superior court predicated the award of attorney fees on its finding that Verbitsky was liable for breach of fiduciary duty and conversion. "A plaintiff is entitled to recover attorney fees only for that portion of the fees which are allocable to the attorney's efforts to prosecute a successful claim against a defendant." (Citation and punctuation omitted.) Daniel v. Smith, 266 Ga.App. 637, 640(2), 597 S.E.2d 432 (2004). See Monterrey Mexican Restaurant of Wise v. Leon, 282 Ga.App. 439, 452-454(6)(d), 638 S.E.2d 879 (2006). Therefore, the fees that are awarded "must be apportioned to those attorney fees attributable to claims on which the plaintiff prevailed." Leon, 282 Ga.App. at 453(6)(d), 638 S.E.2d 879. Accordingly, because we held above in Division 3 that a new trial is warranted on the conversion claim due to insufficient evidence, we vacate the superior court's award of attorney fees and expenses. If the conversion claim ultimately fails on remand, then the superior court will need to conduct an evidentiary hearing and apportion the attorney fees award to the amount attributable only to claims upon which Budell prevailed. See id. at 454(6)(d), 638 S.E.2d 879.
Judgment affirmed in part, reversed in part, and vacated in part, and case remanded with direction.
BLACKBURN, P.J., and RUFFIN, J., concur.
NOTES
[1] Budell brought a direct rather than derivative action on all of his claims. See generally OCGA § 14-11-801 et seq.; Phoenix Airline Svcs. v. Metro Airlines, 260 Ga. 584, 585-587(1), 397 S.E.2d 699 (1990) (discussing difference between direct and derivative actions). None of the appellants challenged Budell on this point, and so it is not an issue on appeal.
[2] While "[t]he member's or manager's duties and liabilities may be expanded, restricted, or eliminated by provisions in the articles of organization or a written operating agreement" to a certain degree, see OCGA § 14-11-305(4)(A), no such provisions exist in the present case.
[3] Appellants argue that Goldstein, not Verbitsky, was the manager of IMA. Both Verbitsky and Budell testified that Goldstein was not an IMA member. And, under Georgia law, a nonmember manager must be "designated, appointed, [or] elected . . . by the approval of more than one half by number of the members." (Emphasis supplied.) OCGA § 14-11-304(b)(1), (2). There is no evidence that Goldstein was ever designated, appointed, or elected to be a manager of IMA with the approval of both Verbitsky and Budell. Hence, Goldstein lacked authority to manage IMA.
[4] Budell contends that appellants waived their allegation of error by failing to move for a directed verdict on the conversion and punitive damages claims. While the failure to move for a directed verdict bars appellants from arguing that they were entitled to judgment as a matter of law, they nevertheless may obtain a new trial if the evidence was insufficient. See Aldworth Co. v. England, 281 Ga. 197, 197-198, 637 S.E.2d 198 (2006). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1643975/ | 4 So.3d 590 (2007)
WARREN REGINALD ROBINSON
v.
STATE.
No. CR-06-0069.
Court of Criminal Appeals of Alabama.
January 12, 2007.
Decision of the alabama court of criminal appeals without opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1743573/ | 511 So. 2d 733 (1987)
Ruth MILLMAN, Individually, and Ruth Millman D/B/a Ruth Millman Interiors, et al., Petitioners,
v.
Oscar Leroy REID, Dennis Schaefer and Beverly Vesel, His Wife, Respondents.
No. 87-1732.
District Court of Appeal of Florida, Fourth District.
August 26, 1987.
Richard F. Hussey of Hussey & Hussey, Fort Lauderdale, for petitioners.
No appearance for respondents.
PER CURIAM.
We grant the petition for writ of certiorari and direct the trial court to consolidate these two (2) cases involving claims of injury by the same person in two accidents occurring two weeks apart.
DOWNEY, ANSTEAD and GLICKSTEIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1063215/ | 631 S.E.2d 332 (2006)
48 Va. App. 354
Ira Dale BENNETT
v.
COMMONWEALTH of Virginia.
Record No. 0309-05-3.
Court of Appeals of Virginia, Salem.
June 27, 2006.
Catherine E.P. Haas, Assistant Appellate Defender (Virginia Indigent Defense Commission, on briefs), for appellant.
Susan L. Parrish, Assistant Attorney General (Judith Williams Jadgmann, Attorney General, on brief), for appellee.
Present: ELDER and McCLANAHAN, JJ., and COLEMAN, Senior Judge.
SAM W. COLEMAN III, Senior Judge.
In a bench trial, Ira Dale Bennett was convicted of uttering a forged public record in violation of Code § 18.2-168. On appeal, appellant challenges the sufficiency of the evidence to support his conviction.[1] This case presents a novel question that is whether the act of signing a false name on an electronic screen, which constitutes a forgery, is also an uttering since the act of signing the screen initiates the transaction to obtain the forged public document. Finding that the act of signing causes the forged document to be created, we hold that the act of signing the screen constitutes an uttering. Therefore, we affirm appellant's conviction.
*333 FACTS
"On appeal, `we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)).
Bennett entered a Virginia Department of Motor Vehicles (DMV) office in Danville, Virginia intending to apply for a commercial license. Using the name and identifying information of "Leroy Swann," Bennett completed and submitted an application for the license. Bennett took the test required for a commercial license, but failed. He then amended his application to request a duplicate driver's license. In the course of processing this application, a DMV clerk had Bennett stand in front of a camera for a photograph and then sign a computer screen bearing his digitalized image. Bennett signed the computer screen by forging the signature, "Leroy Swann." As a result of forging the signature on the computer screen, the computer generated a duplicate driver's license with the name "Leroy Swann." The DMV clerk produced the license; however, Bennett had left the DMV office without receiving or accepting the fraudulently produced license.
ANALYSIS
Bennett contends that the single act of affixing the forged signature to the computer screen could not constitute both a forgery and uttering a forged public record.
Code § 18.2-168, which proscribes the offense of uttering a forged public record, provides in pertinent part: "If any person forge a public record ... or utter, or attempt to employ as true, such forged record ... knowing the same to be forged, he shall be guilty of a Class 4 felony." Admitting that he forged the signature of Leroy Swann on the DMV computer screen, Bennett contends he was not guilty of uttering the forged document because he did nothing other than sign the false or forged name, and did nothing further to cause the forged signature to generate the license. Moreover, he never received or used the forged license.
This Court has not previously considered whether the application of a false signature to a computer screen, which constitutes forgery, can also constitute the crime of uttering under Virginia law. The parties cite no cases from other jurisdictions addressing this specific issue, and we are aware of none.
Under Virginia law, "[u]ttering is a separate and distinct offense from forgery." Dillard v. Commonwealth, 32 Va.App. 515, 519, 529 S.E.2d 325, 327 (2000). Forgery "is defined as `the false making or materially altering with the intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of legal liability.'" Fitzgerald v. Commonwealth, 227 Va. 171, 173, 313 S.E.2d 394, 395 (1984) (quoting Bullock v. Commonwealth, 205 Va. 558, 561, 138 S.E.2d 261, 263 (1964)). By contrast, the crime of uttering does not require proof that the defendant produced or altered a writing. See Dillard, 32 Va.App. at 519, 529 S.E.2d at 327. Although the term is not defined by statute, the Supreme Court of Virginia has found uttering to be "an assertion by word or action that a writing known to be forged is good and valid." Bateman v. Commonwealth, 205 Va. 595, 600, 139 S.E.2d 102, 106 (1964). Moreover,
any assertion or declaration, by word or act, directly or indirectly, that the forged writing or endorsement is good, with such knowledge and intent, is an uttering or attempting to employ as true the said writing or endorsement; provided that such assertion or declaration was made in the prosecution of the purpose of obtaining the [object] mentioned in the said writing.
Sands v. Commonwealth, 61 Va. (20 Gratt.) 800, 823-24 (1871) (emphases added). "A forged instrument is uttered when it is offered to another as genuine, without regard to whether it is so accepted." 4 Charles E. Torcia, Wharton's Criminal Law § 496 (15th ed. 1996).
Bennett argues that to sustain his conviction the Commonwealth was required to prove he "put the forged document into circulation." The definition of "uttering" accepted *334 by Virginia courts contains no requirement that a forged instrument be negotiated, however. See Bateman, 205 Va. at 600, 139 S.E.2d at 106; Sands, 61 Va. at 823-24.
As part of the procedure to obtain a duplicate license, Bennett was required to stand for a photograph and then sign the computer screen before him. The record contains no evidence that any further action was required of Bennett to complete the process of obtaining the license.[2] After the forged driver's license was produced, the DMV clerk attempted to present it to Bennett; however, he had left and did not accept it. We hold that, in signing the false name on the computer screen and completing the application process, Bennett asserted to the DMV agent that the false name on the screen was good and valid, and he thereby instituted the process that produced the fraudulent license. Uttering was completed simultaneously with the forgery because the forged signature on the electronic screen was being "employed as true" in order to generate the false public record. The crime of uttering a public record was then complete. See Bateman, 205 Va. at 600, 139 S.E.2d at 106; Sands, 61 Va. at 823-24.
Thus, we affirm the uttering conviction.
Affirmed.
NOTES
[1] In a simultaneous proceeding, appellant entered guilty pleas and was convicted of two counts of forgery and an additional count of uttering in violation of Code § 18.2-168. Appellant does not challenge these convictions on appeal.
[2] Bennett asserts that the DMV clerk "cannot complete the process until the person clicks `submit' to transmit the information to the clerk." The record contains no evidence that such a step was required to complete the process. In either event, Bennett initiated the process to create the forged document and to cause it to be issued. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335194/ | 659 S.E.2d 393 (2008)
HENRY
v.
CHEROKEE COUNTY.
Blankenship
v.
Cherokee County.
Nos. A07A2026, A07A2027.
Court of Appeals of Georgia.
February 27, 2008.
Reconsideration Denied March 19, 2008.
*394 Vaughn, Wright & Boyer, Frederick L. Wright II, Atlanta, for appellant (case no. A07A2026).
Bray & Johnson, H. Michael Bray, Canton, for appellant (case no. A07A2027).
Sams, Larkin & Huff, James A. Balli, Marietta, for appellee.
JOHNSON, Presiding Judge.
Between 1963 and 1966, Clifford Henry bought 43 acres of land in Cherokee County, put the property in his wife's name, and began operating an automobile salvage yard on the property. In 1969, Cherokee County zoned the Henry property as industrial, a classification under which the automobile salvage yard was an appropriate use. In 1992, Cherokee County enacted a new zoning ordinance that reclassified the property as light industrial, a classification which does not permit automobile salvage yards and thus rendered Henry's salvage business a legal nonconforming use.
In December 1997, Milton Blankenship purchased 15 acres of the Henry property, leaving Henry with a 28-acre lot upon which he has continued to operate his automobile salvage yard. On the 15-acre tract, Blankenship *395 drained a lake, graded more than an acre of land and began installing a car shreddera large piece of equipment into which whole cars are fed and which then shreds the cars into small pieces of about five to seven inches.
Cherokee County filed a petition for injunction against Henry and Blankenship, alleging that they have expanded the nonconforming use of the property the automobile salvage yard in violation of the county zoning ordinance.[1] A bench trial was held, and the trial court ruled in favor of the county. As to Henry, the trial court found that he had violated the zoning ordinance by expanding his automobile salvage yard over his entire 28-acre lot, ordered that no additional cars be placed on the lot and directed Henry to create a 50-foot buffer with a fence around the perimeter of his entire lot. As to Blankenship, the trial court found that the car shredder violates the ordinance, and ordered him to remove it from the property and cease the car shredding business.
Henry and Blankenship have filed separate appeals from the trial court's final judgment. Because the appeals arise from the same judgment, we consider them together.
Case No. A07A2026
1. Henry contends that the trial court erred in finding that he had expanded his lawful nonconforming use of the property in violation of the Cherokee County zoning ordinance. We agree.
Article 13.2 of the ordinance provides, in pertinent part, that a nonconformity is "a characteristic of a . . . lot or parcel of land, or of the use, which was lawful prior to the date of enactment of this Ordinance of [sic] any amendment that does not conform to the requirements applicable to the zoning district [in] which it is located." Article 13.3 further provides that a lawful nonconforming use of land that existed at the time the ordinance was enacted may be continued except that the nonconforming use "shall not be . . . [e]xtended to occupy a greater area of land."
The construction of a zoning ordinance is a question of law for the courts. In construing such an ordinance, we consider the general rule that the owner of land in fee has the right to use the property for any lawful purpose. Since zoning ordinances restrict an owner's right to freely use his property, they are in derogation of common law. Thus, they must be strictly construed in favor of the property owner and never extended beyond their plain and explicit terms. Any restrictions must be clearly established, and ambiguities in the language of zoning ordinances should be resolved in favor of the free use of property.[2]
Strictly construed in favor of Henry, the plain terms of the zoning ordinance establish that his entire 28-acre lot, not simply a portion of it, may be used for the lawful nonconforming use of an automobile salvage yard. As recited above, Article 13.2 of the ordinance defines a nonconformity as a characteristic of a lot or parcel of land which was lawful prior to the enactment of the ordinance. The word "parcel" is not defined in the ordinance, although Article 4.1-7 of the ordinance provides that the word "lot" includes the word "parcel." Article 4.3 then goes on to define the word "lot" as "[a] developed or undeveloped tract of land in one ownership legally transferable as a single unit of land."
Henry's 28-acre tract, in one ownership and legally transferable as a single unit of land, clearly meets the ordinance's own definition of a lot. And since it is undisputed that a characteristic of that lot was its lawful use as an automobile salvage yard prior to the ordinance's enactment, under the plain terms of Article 13.2, the entire 28-acre lot meets the definition of a nonconformity. Given that the entire 28-acre lot may be used *396 for the lawful nonconforming use, it follows that the Article 13.3 prohibition against extending the nonconforming use to occupy a greater area of land plainly means that the nonconforming use cannot be extended to occupy an area of land greater than the existing 28-acre lot.
Contrary to the arguments of Cherokee County and the finding of the trial court, there is no language in the ordinance which defines a nonconforming use as applying only to a portion of the 28-acre lot or which prohibits extending the nonconforming use to previously unused portions of that lot, rather than to land beyond it. Had the county wished to impose such limiting language, it could have included it in the ordinance. For instance, the ordinance at issue in another case provided that "no such nonconforming use of land shall in any way be extended, either on the same or adjoining property."[3] Because the Cherokee County ordinance does not clearly establish such a restriction against extending the nonconforming use on the same property, we will not infer a restriction on Henry's lawful use of his property greater than that imposed by the ordinance's plain language.[4]
The trial court's finding that Henry has violated the ordinance by expanding his salvage yard to cover his entire 28-acre lot is erroneous since the entire lot may be used for the lawful nonconforming use. The trial court's erroneous judgment against Henry and in favor of the county must therefore be reversed.[5]
2. Because of our holding in Division 1 reversing the judgment against Henry, we need not address Henry's remaining enumerations of error.
Case No. A07A2027
3. In several related enumerations of error, Blankenship argues that the trial court erred in finding that the car shredder is not a lawful nonconforming use under the ordinance and in ordering him to remove it from his property. The argument is without merit.
Nonconforming uses run with the land and benefit a subsequent purchaser.[6] Thus, the lawful nonconforming use of the original 43-acre lot as an automobile salvage yard ran with the 15-acre parcel that Blankenship purchased and he could have continued using the property for that purpose. But the evidence shows that he did not continue the salvage yard, and instead began installing a car shredder, a heavy industrial operation that could shred as many as 50 cars per hour and would create vibrations, dust and smoke on the property. This action unquestionably violated Article 13.3-4 of the Cherokee County zoning ordinance, which provides that a lawful nonconforming use shall not be changed to another nonconforming use.
This provision of the ordinance is in accord with well-established law. "In order to establish a grandfathered, nonconforming use, it is necessary to show that the land was used for the nonconforming purpose prior to the enactment of the zoning ordinance."[7] Blankenship cannot make such a showing as to his car shredder. Indeed, the evidence unequivocally establishes that Blankenship's property was not used for the purpose of shredding cars prior to the enactment of the zoning ordinance. Accordingly, the trial court committed no error in finding that the car shredder is not a lawful nonconforming use under the ordinance and in ordering its removal from the property.
4. Blankenship claims the trial court erred in failing to find that the county's action to enjoin his use of the car shredder is barred by the doctrine of laches. First, we note that "[i]n general, equitable defenses are unavailable against the state where their *397 application would thwart a strong public policy."[8] There is certainly a strong public policy in allowing a county to enforce its zoning ordinances.
Moreover, whether laches should apply is left to the sound discretion of the trial court based upon consideration of the particular facts of the case.[9]
Courts of equity may impose an equitable bar to a complaint when the lapse of time and a claimant's neglect in asserting rights causes prejudice to the adverse party. In determining whether laches should apply, courts consider the length of the delay, the sufficiency of the excuse, the loss of evidence on disputed matters, the opportunity for the claimant to have acted sooner, and whether the plaintiff or defendant possessed the property during the delay. The defendant must show prejudice from the delay.[10]
In the instant case, the trial court was authorized to find that when Cherokee County initially filed this action in November 1998 against Ella Mae Henry, the longtime title holder of the entire 43-acre tract, it had failed to discover that some six months earlier Blankenship had recorded his deed showing that he had bought 15 acres of the tract. There were then discovery delays in the case, compounded by the withdrawal of Ms. Henry's original counsel. When the county eventually learned through discovery that Blankenship owned part of the property, it immediately moved in January 2000 to have him added to the action as a defendant.
The trial court was further authorized to find from the evidence that Blankenship did not obtain permission from the county before purchasing or constructing the car shredder. Blankenship testified that he purchased the car shredder before he even had a location in mind for it, let alone before he bought the property from Henry. Moreover, Blankenship's land purchase agreement plainly states that the premises were subject to zoning ordinances, and Clifford Henry testified that he never told Blankenship the county would allow the operation of a car shredder on the property. Blankenship himself admitted that he never received any assurances from the county that he could operate a car shredder on the property, and no permits or licenses for the shredder were ever obtained from the county.
Finally, we note that Blankenship has not identified the loss of any evidence due to the delay in his being added to the lawsuit. Under all the circumstances of this case, we conclude that the trial court did not abuse its discretion in ruling that the county's action to enforce its zoning ordinance against Blankenship is not barred by laches. And absent an abuse of discretion, we will not disturb the trial court's ruling.[11]
5. Blankenship complains that the trial court erred in excluding hearsay testimony of alleged conversations between Henry and various county agents concerning Henry's purported request to put a "car processor" on the property. Given the absence of permission from the county for Blankenship to put a car shredder on his property, including Blankenship's own testimony that he never received assurance from the county that he could operate a car shredder, Blankenship has failed to show how he has been harmed by the exclusion of alleged hearsay conversations concerning some request by Henry. To prevail on appeal, an appellant must show harm as well as error in the exclusion of evidence.[12]
Judgment reversed in Case No. A07A2026. Judgment affirmed in Case No. A07A2027.
PHIPPS and MIKELL, JJ., concur.
NOTES
[1] The petition was initially filed against Clifford Henry's wife, Ella Mae Henry, in whose name the 43 acres was originally titled. Blankenship was subsequently added by amendment as a defendant. And when Ella Mae Henry later passed away, her heir Clifford Henry was substituted as a defendant.
[2] (Citations and punctuation omitted.) Cherokee County v. Martin, 253 Ga.App. 395, 396(1), 559 S.E.2d 138 (2002).
[3] (Emphasis supplied.) Troutman v. Aiken, 213 Ga. 55, 56, 96 S.E.2d 585 (1957).
[4] See Beugnot v. Coweta County, 231 Ga.App. 715, 722(1)(b), 500 S.E.2d 28 (1998).
[5] See Northside Corp. v. City of Atlanta, 275 Ga.App. 30, 32(2), 619 S.E.2d 691 (2005).
[6] BBC Land & Dev. v. Butts County, 281 Ga. 472, 473, 640 S.E.2d 33 (2007).
[7] (Citation omitted.) Flippen Alliance, etc. v. Brannan, 267 Ga.App. 134, 136(1), 601 S.E.2d 106 (2004).
[8] (Citation and punctuation omitted.) Id. at 138(3), 601 S.E.2d 106.
[9] Id.
[10] (Citations omitted.) Troup v. Loden, 266 Ga. 650, 651(1), 469 S.E.2d 664 (1996).
[11] See Dillard v. Bishop Eddie Long Ministries, 258 Ga.App. 507, 511(5), 574 S.E.2d 544 (2002).
[12] Jakobsen v. Colonial Pipeline Co., 237 Ga.App. 441, 447(4), 514 S.E.2d 851 (1999) (physical precedent only). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335197/ | 659 S.E.2d 863 (2008)
In re HADAWAY.
In re Johnson.
Nos. A07A1626, A07A1627.
Court of Appeals of Georgia.
March 24, 2008.
*864 Gerald Richard Weber Jr., Margaret Fletcher Garrett, for Appellant (Case no. A07A1626).
Charles Madden Cork III, for Appellant (Case no. A07A1627).
BARNES, Chief Judge.
As these two appeals arise from the same case, we have consolidated them for disposition on appeal. They arise from the attempted adoption of a six-year-old, female child. The appellants appeal the trial court's order finding them in criminal contempt, and for the reasons that follow, we reverse.
The child's mother, apparently recognizing that she was unable to properly care for the child, asked Elizabeth Hadaway to take physical custody of the child in May 2006. On June 19, 2006, with the mother's support, the Wilkinson County Superior Court granted Hadaway's petition for physical and legal custody of the child. Attorney Dana Johnson prepared the petition and has represented Hadaway throughout these proceedings. The court granted the petition finding that it was "in the best interest of the child that legal and physical custody of the child be placed in the plaintiff Elizabeth Hadaway."
Later, the mother signed a document surrendering her parental rights to facilitate Hadaway's petition to adopt the child. During the adoption proceedings, a home evaluation was conducted. The evaluation reflected that Hadaway lived with a female partner with whom she shared a bedroom and contained information about Hadaway and her partner, and approved "Ms. Hadaway, and her home, for the adoption of [the child]."
On January 12, 2007, the Wilkinson County Superior Court denied the petition for adoption because it found that the adoption would not be in the best interest of the child. The court also vacated the grant of custody to Hadaway because the court found that custody was granted to Hadaway in anticipation of the adoption.
The court found fault with Hadaway's filing for adoption as an individual when the home visitation report contained information about both Hadaway and her partner as if they were adopting as a couple, and for not disclosing that information in the adoption petition. The court's order further provided:
[C]ustody of the said minor child shall revert to the natural mother . . ., if she picks up said minor child within ten (10) days from the date of the instant order and thereafter has the said child in her continuous care, custody, and control; the Wilkinson County Department of Family and Children Services and the Wilkinson County Sheriff shall inspect to see in [sic] the order is complied with in a timely, consistent, and good faith manner, and, if the *865 said natural mother should fail to so pick up the said child or exercise continuous, good faith care, custody, and control of the said child, then the said child shall immediately be taken into shelter care and proceedings shall be initiated in Juvenile Court to determine the proper disposition of her as a deprived child under the Juvenile Code.
On January 12, 2007, within the time specified in the court's order Hadaway, Johnson, and the mother met and Hadaway delivered the child to the mother. After Johnson left, the mother decided that the separation was not in the child's best interest because the separation from Hadaway resulted in significant distress to the child. Consequently, she asked Hadaway to take physical custody of the child again, and Hadaway did.
Having moved to Bibb County, Hadaway filed a petition in the Bibb County Superior Court on January 19, 2007, prepared by Johnson, seeking to change custody to her from the natural mother, noting that she had been granted custody in Wilkinson County, but the order was vacated when the Court decided that the custody change was not in the child's best interest.
On February 21, 2007, the Wilkinson County Superior Court granted custody of the child to the Wilkinson County Department of Family and Children Services ("DFCS"), ordering the department to take physical custody of the child because the "mother of child violated an order of Superior Court of Wilkinson County."
Thereafter, the Wilkinson County Superior Court ordered that Hadaway and her counsel, Johnson, show cause why they should not be held in criminal contempt for "disobeying and resisting" the court's order denying the adoption petition because Hadaway
has kept care, custody, and control of the minor child . . . in violation of the said order and (b) instead of filing a lawful appeal in the instant case, [Hadaway] and her said counsel have filed on January 19, 2007, a Petition for Immediate Change of Custody for said child in . . . Bibb Superior Court, Georgia, although the instant case and its companion case [in Wilkinson Superior Court], were res judicata on this issue, and the said new petition, although verified, failed to reveal honestly and in good faith to Bibb Superior Court about the instant adoption case, as required specifically by OCGA § 19-9-69, and "the date of the child custody determination," as also required by said statute. [Hadaway's] counsel [Johnson] should also respond to whether she has violated OCGA § 15-19-4(1) and (2) on duties of attorneys.
[Johnson] is also ordered to appear . . . and show cause why she should not be held in contempt of court for misbehavior as an officer of the court in her official transactions in the Court as above stated.
On February 23, 2007, the Wilkinson County Superior Court amended its show-cause order to allege that Johnson "intentionally aided or abetted in the commission" of Hadaway's contemptuous conduct in keeping care, custody, and control of the child. Johnson filed an answer denying the allegations in the court's show cause orders.
At the show cause hearing Hadaway testified that she did not realize she was doing anything wrong. She took the child back to the biological mother like she was told to do, and the mother said she was going to take her, but after Johnson left, the mother said she "just couldn't break the bond between [Hadaway] and the child, and that she wanted the child to be raised" by Hadaway. According to Hadaway, Wilkinson County DFCS told her that she could "just move," which she had already done, and re-file for custody as long as she included in the paperwork the denial of the adoption. She did not notify DFCS because it already knew that the mother did not take the child. Hadaway testified that she was not a lawyer and just did what she was told was appropriate. Hadaway also apologized to the court if she did anything wrong.
Johnson testified that she had helped Hadaway make arrangements for the mother to come to Georgia and pick up the child from Hadaway and take custody of her. She also testified that she was no longer present when the mother and Hadaway decided that Hadaway should regain custody of the child. The mother had already stated that she still *866 wanted Hadaway to have custody of the child, and it was Johnson's understanding that the child would go with her mother to Florida, that Hadaway had moved to Bibb County, and that Johnson would prepare a petition for custody to be filed in Bibb County.
After the show cause hearing, the trial court found Hadaway in criminal contempt for violating its order and sentenced her to ten days in jail or five days in jail and a $500 fine. The court found that she had "disobeyed and resisted" the court's order by never relinquishing custody of the child nor returning the child to her mother. The court further found that instead of appealing the order denying the adoption, Hadaway and Johnson had filed the Bibb County case. The court further found that its rulings in the Wilkinson County adoption and custody cases were res judicata unless reversed by an appellate court or set aside by the trial court. Hadaway's motion for supersedeas pending appeal was granted. The court made similar findings regarding Johnson and imposed the same punishment. Her motion for supersedeas was also granted.
Hadaway contends that the court erred by finding her in criminal contempt because she did not violate the court's order because it was not sufficiently definite and certain, she did not wilfully violate the underlying order, the underlying order was void, and the underlying order was not supported by any evidence and was clearly erroneous. Johnson alleges that the trial court erred by finding her in contempt, by finding Hadaway unfit, and by putting in the order "self-executing terms for further changes of custody."
OCGA § 15-1-4(a) provides that courts have the power to inflict summary punishment for contempt of court in cases of:
(1) Misbehavior of any person or persons in the presence of such courts or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of the officers of the courts in their official transactions;
(3) Disobedience or resistance by any officer of the courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the courts;
(4) Violation of subsection (a) of Code Section 34-1-3, relating to prohibited conduct of employers with respect to employees who are required to attend judicial proceedings; and
(5) Violation of a court order relating to the televising, videotaping, or motion picture filming of judicial proceedings. (Emphasis supplied.)
Further,
[o]n appeal from a conviction of criminal contempt, we review the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Barlow v. State, 237 Ga.App. 152, 157(3), 513 S.E.2d 273 (1999). "Criminal contempt is that which involves some disrespectful or contumacious conduct toward the court. Contempt of court has been variously defined; in its broad sense it means disregard for or disobedience of the order or command of the court." (Citation and punctuation omitted.) Id. It is "`a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both.' Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968)." Garland v. State, 253 Ga. 789, 790(1), 325 S.E.2d 131 (1985). Every court has the power "to preserve and enforce order in its immediate presence and, as near thereto as is necessary, to prevent interruption, disturbance, or hindrance to its proceedings." OCGA § 15-1-3(1). "Disobedience to the lawful order of a court is an obstruction of justice, and for such a violation the court, in order to compel respect or compliance, may punish for contempt." Griggers v. Bryant, 239 Ga. 244, 246(1), 236 S.E.2d 599 (1977).
In re Long, 276 Ga.App. 306, 309-310, 623 S.E.2d 181 (2005).
We find that Hadaway and Johnson's primary contentions have merit. The order was directed toward the actions required of the natural mother. It did not address Hadaway's *867 or Johnson's obligations. If anyone violated the order, it was the natural mother. Therefore, neither Hadaway nor Johnson should have been found in contempt of that order. American Express Co. v. Baker, 192 Ga.App. 21, 23(2), 383 S.E.2d 576 (1989) ("A person cannot be found in contempt of a court order or writ which was not directed to him.").
Hadaway and Johnson's contention that they did not wilfully disobey the court's order also has merit. To prove a "criminal contempt, there must be proof beyond a reasonable doubt not only that the alleged contemnor violated a court order, but also that he did so wilfully." Thomas v. Dept. of Human Resources, 228 Ga.App. 518, 519, 492 S.E.2d 288 (1997). In these appeals, there is no evidence that either Hadaway or Johnson wilfully violated the Wilkinson County Superior Court's order. The fact that they filed another petition to change custody, rather than file an appeal, does not mean that they wilfully violated the order. Moreover, the pleadings filed in Bibb County do not demonstrate that either Hadaway or Johnson wilfully violated the Wilkinson County Superior Court's order. Accordingly, the trial court's judgment finding them in contempt must be reversed.
Judgments reversed.
SMITH, P.J., and MILLER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335230/ | 631 S.E.2d 54 (2006)
STATE of North Carolina
v.
Steven Lewis BROOKS.
No. COA05-935.
Court of Appeals of North Carolina.
June 20, 2006.
Attorney General Roy Cooper, by Assistant Attorney General Brent D. Kiziah, for the State.
*56 Appellate Defender Staple Hughes, by Assistant Appellate Defender Matthew Wunsche, Durham, for defendant appellant.
*55 McCULLOUGH, Judge.
Steven Lewis Brooks (defendant) appeals from conviction and judgment for felonious breaking or entering and felonious larceny. We hold that defendant received a fair trial, free from prejudicial error.
Facts
On 18 August 2004 between 10:00 a.m. and 11:30 a.m., defendant and Janice Perkins entered the law offices of Grace Holt Tisdale & Clifton in Winston-Salem, North Carolina. The law firm is open to people seeking legal representation, and it is arranged so that people visiting the firm may enter the reception area. The firm's lawyers generally meet with clients in conference rooms, and access to the attorneys' offices is by permission only.
Attorney Michael Grace noticed Perkins, who had been a client in a previous criminal case. As Perkins had been told that she should not return to the firm after that case, Grace told her that she should not be there. A legal assistant witnessed defendant walking in the hallway from the back of the firm, and she asked defendant if she could help him. Defendant answered that he was looking for a lawyer and asked if attorney Mireille Clough was available. Upon receiving a negative response, defendant sat in a chair outside of Clough's office. Defendant then moved towards the firm's bathroom, and approximately one minute thereafter, exited the law firm.
Attorney Mireille Clough returned to the firm between 11:45 a.m. and noon, after being in court that morning. She placed a bag in one of the chairs in her office, retrieved some files, and left for court again. When she returned later in the day, Clough observed that her day planner and a wallet containing her credit cards were missing from her bag. She contacted her credit card company and was informed that her credit card had recently been used at a nearby Food Lion grocery store.
Attorney Donald Tisdale testified that he observed defendant exiting Clough's office at 1:30 p.m. on 18 August 2004. Upon noticing Tisdale, defendant asked whether Clough had returned from lunch. Tisdale replied that he would see if Clough had returned and then walked to his office to put something down. By the time Tisdale returned, defendant was gone.
The police procured a video of defendant and Perkins using Clough's credit card at the nearby Food Lion. Officers also seized four credit card receipts which indicated that Clough's credit card had been used at the Food Lion. While driving to interview a witness, Detective Gregory Dorn noticed Perkins on the porch of a home on Waughtown Street. Detective Dorn detained Perkins, entered the home, and found defendant sitting in the living room. Perkins accompanied Dorn, and other officers, to a location approximately one-quarter to one-half mile from the home, where the officers performed a search and located Clough's day planner. The police also found Clough's credit cards in a planter at the home on Waughtown Street.
Defendant was arrested. He confessed to entering the law office though, according to defendant, he diverted the attention of the secretary while Perkins stole Clough's personal items. Defendant further admitted to purchasing sixteen cases of beer and nine cartons of cigarettes with Clough's credit cards.
A Forsyth County jury convicted defendant of felonious breaking or entering and felonious larceny. The trial court sentenced defendant as an habitual felon to between 100 and 129 months of imprisonment. Defendant now appeals.
Legal Discussion
I.
In his first argument on appeal defendant contends that the trial court erred by denying his motions to dismiss the charges of felonious breaking and entering and felonious larceny. This contention lacks merit.
A trial court should deny a motion to dismiss if, considering the evidence in the light most favorable to the State and giving the State the benefit of every reasonable *57 inference, "there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id. "[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both." State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981).
A. Felonious Breaking or Entering
Pursuant to section 14-54(a) of the General Statutes, "[a]ny person who breaks or enters any building with intent to commit any felony or larceny therein shall be punished as a Class H felon." N.C. Gen.Stat. § 14-54(a) (2005). Thus, "[t]he essential elements of felonious breaking or entering are (1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein." State v. White, 84 N.C.App. 299, 301, 352 S.E.2d 261, 262, cert. denied, 321 N.C. 123, 361 S.E.2d 603 (1987). The present defendant challenges only whether there was sufficient evidence of an illegal entry on his part.
"[A]n entry, even if with felonious intent, cannot be punished when it is with the owner's consent." State v. Boone, 297 N.C. 652, 657, 256 S.E.2d 683, 686 (1979). Our Supreme Court has held that, where a defendant "entered [a] store at a time when it was open to the public[, h]is entry was ... with the consent, implied if not express, of the owner[, and could not] serve as the basis for a conviction for felonious entry." Id. at 659, 256 S.E.2d at 687.
However, the subsequent conduct of the entrant may render the consent to enter void ab initio. State v. Speller, 44 N.C.App. 59, 60, 259 S.E.2d 784, 785 (1979); see also State v. Winston, 45 N.C.App. 99, 102, 262 S.E.2d 331, 333 (1980) (reversing conviction for breaking or entering where a defendant entered with consent, and the record "fail[ed] to disclose that the defendant after entry committed acts sufficient to render the implied consent void ab initio."). This Court has upheld a conviction for breaking or entering where a defendant entered a store during normal business hours, but subsequently secreted himself in a portion of the store which was not open to the public and remained concealed there so that he could perpetrate a theft after the store closed. Speller, 44 N.C.App. at 60, 259 S.E.2d at 785. Specifically, we held that defendant's actions in "[g]oing into an area not open to the public and remaining hidden there past closing hours made the entry through the front door open for business unlawful." Id.
In the instant case, the evidence tended to show that defendant entered a law office which was open to members of the public seeking legal assistance. The firm had a reception area where members of the public were generally welcome and also areas beyond this reception area which were not open to the public. When defendant entered the reception area of the firm, he did so with implied consent from the firm. However, defendant took action which rendered this consent void ab initio when he went into areas of the firm that were not open to the public so that he could commit a theft, and when he misinformed a member of the firm as to the reason for his presence in these areas. Therefore, defendant illegally entered the firm.
Accordingly, the State introduced substantial evidence to satisfy the breaking or entering element of felonious breaking or entering. The trial court did not err by denying defendant's motion to dismiss this charge.
B. Felonious larceny
Larceny is the taking and carrying away of the property of another without the owner's consent with the intent to permanently deprive the owner of the property. State v. Coats, 74 N.C.App. 110, 112, 327 S.E.2d 298, 300, cert. denied, 314 N.C. 118, 332 S.E.2d 492 (1985). The crime of larceny is a felony, without regard to the value of the property in question, if the larceny is committed pursuant to a breaking or entering in violation of section 14-54 of the General Statutes. N.C. Gen.Stat. § 14-72(b)(2) (2005).
Defendant argues that the trial court should have dismissed the felonious larceny *58 charge because there was no evidence of a breaking or entering on his part. As we have already indicated, the evidence permitted a jury finding that defendant illegally entered the law firm. Accordingly, the trial court did not err by denying defendant's motion to dismiss the felonious larceny charge.
II.
In his second argument on appeal, defendant contends that the trial court erred by admitting the videos from the Food Lion into evidence because the prosecution failed to properly authenticate these items of evidence. Even assuming arguendo that the tapes were not properly admitted in evidence, we conclude that defendant was not prejudiced by their admission.
At issue are State's Exhibits 18 and 20, both of which contained video footage of defendant and Perkins using Clough's credit card to purchase beer and cigarettes at a Food Lion. The footage was taken from the Food Lion's surveillance cameras. Exhibit 20 showed multiple scenes from different cameras within the store. The footage contained in Exhibit 20 was edited by the police to produce Exhibit 18. Both videos were shown to the jury; Exhibit 18 was shown in its entirety; but Exhibit 20 was only partially shown. Defendant contends that the exhibits were improperly shown to the jury because the State did not establish that the videotapes fairly and accurately illustrated the events filmed.
It is true that videotapes are admissible as evidence only when a proper foundation has been established. N.C. Gen. Stat. § 8-97 (2005); State v. Cannon, 92 N.C.App. 246, 254, 374 S.E.2d 604, 608 (1988), rev'd on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990). However, not all trial errors require reversal and "[d]efendant has the burden of showing that he was prejudiced by the admission of ... evidence." State v. Wingard, 317 N.C. 590, 599-600, 346 S.E.2d 638, 645 (1986). Indeed, an error is not prejudicial unless "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial...." N.C. Gen.Stat. § 15A-1443 (2005).
In the instant case, we hold that the admission of the videotapes showing defendant and his accomplice purchasing beer and cigarettes on the victim's stolen credit card was not prejudicial given the admittance of defendant's statement in which he confessed to using the victim's credit card to purchase beer and cigarettes at the Food Lion. Specifically, defendant stated, "We went to Food Lion[;] we got some beer on the credit cards . . . ." Later when asked by a detective what he and his accomplice bought at Food Lion, defendant stated, "[b]eer and cigarettes." In light of defendant's confession, there is no reasonable possibility that, had the challenged video exhibits not been admitted, a different result would have been reached at the trial.
Defendant's assignments of error are overruled.
No error.
Judges TYSON and ELMORE concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335166/ | 659 S.E.2d 14 (2008)
In the Matter of J.A.P. and I.M.P.
No. COA07-1562.
Court of Appeals of North Carolina.
April 15, 2008.
Lauren Vaughan, Hickory, for Petitioner-Appellee Iredell County Department of Social Services.
Parker Poe Adams & Bernstein LLP, by Lori R. Keeton, Charlotte, for Respondent-Appellee Guardian Ad Litem.
Carol Ann Bauer for Respondent-Appellant Mother.
STEPHENS, Judge.
On 27 October 2006, the Iredell County Department of Social Services ("DSS") filed petitions for the termination of Respondent's parental rights as to her minor children, J.A.P. and I.M.P. The petitions were heard on 12, 26, and 27 July 2007. On 17 October 2007, the trial court entered a consolidated judgment and order of adjudication and disposition terminating Respondent's parental rights to both children. From this order, Respondent appeals.
I. Subject Matter Jurisdiction
As a preliminary matter, we must determine whether the trial court had subject matter jurisdiction over the termination proceedings in this case. Although the parties have not questioned the court's subject matter jurisdiction, "a court has inherent power to inquire into, and determine, whether it has jurisdiction and to dismiss an action ex mero motu when subject matter jurisdiction is lacking." Reece v. Forga, 138 N.C.App. 703, 704, 531 S.E.2d 881, 882, disc. review denied, 352 N.C. 676, 545 S.E.2d 428 (2000). In reviewing a question of subject matter jurisdiction, our standard of review is de novo. Raleigh Rescue Mission, Inc. v. Bd. of Adjust. of Raleigh, 153 N.C.App. 737, 571 S.E.2d 588 (2002).
Our juvenile code requires:
(a) . . . [U]pon the filing of the [termination] petition, the court shall cause a summons to be issued. The summons shall be directed to the following persons or agency, not otherwise a party petitioner, who shall be named as respondents:
. . . .
(5) The juvenile.
. . . Except that the summons and other pleadings or papers directed to the juvenile shall be served upon the juvenile's guardian ad litem if one has been appointed. . . .
N.C. Gen.Stat. § 7B-1106 (2007). Plainly, where a guardian ad litem has been appointed for the juvenile, the statute directs that service of the summons be made on the guardian ad litem rather than on the juvenile.
In In re C.T., 182 N.C.App. 472, 643 S.E.2d 23 (2007), the petition to terminate parental rights was captioned with the names of both minor children at issue, C.T. and R.S., but no summons was issued referencing R.S. This Court held the trial court lacked subject matter jurisdiction to terminate respondent-mother's parental rights in R.S. because "the record fail[ed] to show that a summons was ever issued as to R.S." Id. at 475, 643 S.E.2d at 25. Accordingly, this Court vacated the termination order to the extent it terminated respondent-mother's parental rights in R.S.
In In re K.A.D., ___ N.C.App. ___, 653 S.E.2d 427 (2007), summons was issued regarding the minor child to the mother and father, but no summons was issued to the minor child. This Court, citing C.T., vacated the trial court's order terminating respondent-father's parental rights because it held that "the failure to issue a summons to the juvenile deprives the trial court of subject matter jurisdiction." Id. at ___, 653 S.E.2d at 428-29.
However, in In re J.B., 172 N.C.App. 1, 616 S.E.2d 264 (2005), this Court overruled respondent-mother's argument that the trial court had not acquired jurisdiction over the juvenile where service of summons regarding the juvenile was served on the guardian ad litem's attorney, rather than on the guardian ad litem, as contemplated by N.C. Gen.Stat. § 7B-1106(a). Noting that the guardian ad litem had not objected at trial to the sufficiency of service of the summons, nor raised such issue on appeal, this Court held that respondent-mother had failed to demonstrate any prejudice to her "from the alleged failure to properly serve [the juvenile]." Id. at 8, *17 616 S.E.2d at 269. Additionally, this Court did not question the trial court's subject matter jurisdiction based on the service of summons and specifically concluded that the trial court did have subject matter jurisdiction over the proceedings. Thus, the trial court's order terminating respondent-mother's parental rights in J.B. was affirmed.[1]See also In re B.D., 174 N.C.App. 234, 620 S.E.2d 913 (2005), disc. review denied, 360 N.C. 289, 628 S.E.2d 245 (2006) (holding the trial court had jurisdiction where summons was served on the attorney advocate for the juvenile's guardian ad litem).
Here, the record on appeal includes copies of summonses captioned: "In the Matter of: [J.A.P.]" and "In the Matter of: [I.M.P.]" The record also contains certifications by the Attorney Advocate for the Guardian ad Litem that she accepted service of process regarding both minors. The certifications read: "I, Holly Groce, Attorney Advocate, do hereby accept service of the attached Summons in Proceeding for Termination of Parental Rights and Petition for Termination of Parental Rights, and acknowledge receipt of the same in the above-entitled proceeding pending in the General Court of Justice, Iredell County, North Carolina, and service by an officer is hereby expressly waived." The Acceptance of Service of Process certifications are entitled "In the Matter of: [J.A.P.], a minor child[,]" and "In the Matter of: [I.M.P.], a minor child." The summonses and the Acceptance of Service of Process certifications are paginated consecutively in the record. Thus, unlike in C.T. where no summons was issued regarding R.S., summonses were issued referencing both J.A.P. and I.M.P. Furthermore, unlike in K.A.D. where no summons was issued to the minor child,[2] here, as in J.B., summonses were accepted on behalf of the minor children by the attorney advocate for the children's guardian ad litem. See North Carolina Rules of Prof'l Conduct R. 1.2(a) (2005) ("A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation."). We hold that where a juvenile's guardian ad litem is represented by an attorney advocate in a termination of parental rights proceeding, service of summons on the attorney advocate constitutes service on the guardian ad litem. Service of summons on the guardian ad litem, in turn, constitutes service on the juvenile, as expressly stated in N.C. Gen.Stat. § 7B-1106(a). Accordingly, we conclude that the trial court had subject matter jurisdiction over these proceedings.
II. Personal Jurisdiction
Next, Respondent asserts that the trial court erred in concluding that it had personal jurisdiction over the minor children because summons was not properly issued to the minor children.
Upon the filing of a petition to terminate parental rights, a summons regarding the proceeding must be issued to the juvenile. N.C. Gen.Stat. § 7B-1106(a)(5). "[T]he summons and other pleadings or papers directed to the juvenile shall be served upon the juvenile's guardian ad litem if one has been appointed[.]" N.C. Gen.Stat. § 7B-1106(a). Here, the record reflects that the summonses required by N.C. Gen.Stat. § 7B-1106(a) were served upon the guardian ad litem's attorney advocate. Such service, as explained above, effectively served the minor children for purposes of N.C. Gen.Stat. § 7B-1106(a).
However, even if service upon the attorney advocate was error, "[o]nly a `party aggrieved' may appeal from an order or judgment of the trial division." Culton v. Culton, 327 N.C. 624, 625, 398 S.E.2d 323, 324 (1990) (quoting N.C. Gen.Stat. § 1-271). "An aggrieved party is one whose rights have been directly and injuriously affected by the action of the court." Id. Here, the guardian ad litem did not object at trial to the sufficiency of service, nor does the guardian ad litem argue now that the trial court lacked jurisdiction over the minor children. Furthermore, Respondent failed to demonstrate *18 any prejudice to her resulting from service upon the attorney advocate, rather than the guardian ad litem. Accordingly, we overrule this argument.
III. Termination of Parental Rights
Proceedings to terminate parental rights occur in two phases: (1) the adjudication phase, and (2) the disposition phase. In re Baker, 158 N.C.App. 491, 581 S.E.2d 144 (2003). In the adjudication phase, findings made by the trial court must be supported by clear, cogent, and convincing evidence, and the findings must support a conclusion that at least one statutory ground for the termination of parental rights exists. In re Shermer, 156 N.C.App. 281, 576 S.E.2d 403 (2003). A trial court is only required to find one statutory ground for termination before proceeding to the disposition phase. N.C. Gen.Stat. § 7B-1111(a) (2007). In the disposition phase, the trial court must determine whether termination of parental rights is in the best interests of the child. In re Blackburn, 142 N.C.App. 607, 543 S.E.2d 906 (2001).
A. Neglect as Grounds for Termination
Respondent assigns error to the trial court's determination that grounds existed to terminate Respondent's parental rights based on the neglect of the minor children.
The standard of review on appeal is whether the trial court's findings of fact are supported by clear, cogent, and convincing evidence and whether the conclusions of law are supported by the findings of fact. In re Huff, 140 N.C.App. 288, 536 S.E.2d 838 (2000), disc. review denied and appeal dismissed, 353 N.C. 374, 547 S.E.2d 9 (2001). Findings of fact supported by competent evidence are binding on appeal, even though there may be evidence to the contrary. In re Williamson, 91 N.C.App. 668, 373 S.E.2d 317 (1988).
Parental rights may be terminated if the juvenile has been neglected. N.C. Gen.Stat. § 7B-1111(a)(1) (2007). A neglected juvenile is one "who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker . . . or who lives in an environment injurious to the juvenile's welfare[.]" N.C. Gen.Stat. § 7B-101(15) (2007). A determination of neglect must be based on evidence showing neglect at the time of the termination proceeding. In re Young, 346 N.C. 244, 485 S.E.2d 612 (1997). When a child has not been in the custody of the parent for a significant period of time prior to the termination hearing, the requisite finding of neglect at the time of the termination proceeding may be based upon a showing of a "history of neglect by the parent and the probability of a repetition of neglect." Shermer, 156 N.C.App. at 286, 576 S.E.2d at 407. "`[E]vidence of neglect by a parent prior to losing custody of a child-including an adjudication of such neglect-is admissible in subsequent proceedings to terminate parental rights.'" In re J.G.B., 177 N.C.App. 375, 382, 628 S.E.2d 450, 455 (2006) (quoting In re Ballard, 311 N.C. 708, 715, 319 S.E.2d 227, 232 (1984)). "Where evidence of prior neglect is considered, a trial court must also consider evidence of changed circumstances and the probability of a repetition of neglect." Id. at 382, 628 S.E.2d at 455. Here, between February 1992[3] and 28 February 2003, there were approximately 36 reports to social service agencies in Forsyth, Stokes, Guilford, Yadkin, Wilkes, and Iredell counties regarding Respondent's lack of supervision of the children in her home, inappropriate discipline of those children, and/or the condition of Respondent's home. Approximately 20 of those reports were substantiated, and on 24 June 1998, the children were adjudicated neglected in Forsyth County.
DSS filed juvenile petitions in Iredell County on 28 February 2003 alleging J.A.P. and I.M.P. were neglected juveniles. On 5 March 2003, DSS was granted nonsecure custody of the children. Respondent absconded with the children for a period of time, avoiding DSS by hitchhiking between counties, before the agency was finally able to locate and take physical custody of the *19 children. In support of the juvenile petitions, DSS alleged that
on or about October 27, 2002, social worker made a visit to the home and found three large, adult goats, a pot belly pig, a ferret, and a gerbil living in the home.
Social worker noted that there were animal feces everywhere in the home, as the animals were allowed to roam free throughout the home. There were dead and live roaches covering the floors. Live roaches were crawling on the walls, furniture, food containers, beds, and on the children. There was a dead, decomposed, dried up chicken on the parents' bathroom sink.
During the investigation, the agency learned that the family had an extensive Child Protective Services history in Yadkin, Stokes, and Forsyth Counties, and the children had been in foster care on more than one occasion previously. At one point, the plan for these children was TPR. It was learned that all services had already been offered to this family many times. They cooperate well while Social Services is involved, and then apparently, as soon as Social Services becomes uninvolved, things go back to the same way or worse.
On February 20, 2003, social worker made a home visit and found four baby goats, a rabbit, and a ferret running free in the house. There were still roaches, but it was not as bad. There were goat feces, rabbit feces, ferret feces, and possibly other type[s] of animal feces in most of the house.
While social worker was visiting the home, the goat got up on the couch and urinated on the couch. The children report to social worker that the goats "pee on their bed," and "pee on their homework," and father and the children all want the goats to be outside, but the mother indicated that she would get rid of the children and the father before she got rid of the goats.
Respondent stipulated in open court that "the allegations contained in the Juvenile Petitions were true as of the date the petitions were filed and that there exist[ed] a factual basis for the Court to conclude as a matter of law and to adjudicate the minor children neglected children." An order adjudicating the minor children neglected was entered on 15 May 2003. On 1 July 2003, an order continuing nonsecure custody with DSS was entered, with Respondent ordered to "have no pets or animals at her residence."
Between July 2003 and July 2007, numerous review and permanency planning hearings were held, and the permanent plan for the minor children fluctuated between termination of parental rights/adoption, reunification, guardianship, or some combination thereof. Although the trial court returned the children to the physical custody of Respondent on 25 November 2003, the children were again removed from Respondent's home on or about 18 May 2004 after a squirrel, rats, a hamster, and animal feces were found in the home. Respondent absconded with the children to Texas for a period of time prior to DSS taking custody of the children.
In its order terminating Respondent's parental rights, the trial court made numerous findings of fact in support of its determination that the minor children were neglected, including:
8. That [Respondent is] not [a] fit and proper person[ ] to have custody of the minor children in that:
a. The Iredell County Department of Social Services has been extensively involved with this family since March 5, 2003.
b. Examples of behavior manifesting recurring concerns of neglect by the Respondent[ ] in the form of improper supervision, inappropriate discipline, and the condition of the home include:
The Respondent [ ] used very poor judgment in hitchhiking with the children on numerous occasions.
[Respondent] took the children dumpster-diving.
The home was found to have below minimal standards with animal feces/urine on the floor, throughout the home and in the bedding.
Goats were found to be living inside the home and a dead and decaying *20 chicken was observed in the bathroom.
Roaches infested the house and were in the food and in the bedding, and the mother required the children to eat roach-infested food and sleep in roach-infested beds.
The children were found to be very dirty.
The minor child [J.A.P.] stated that the Respondent [ ] would slap him if he did not eat the food. The minor child [J.A.P.] reported that he felt that his mom loved the goats more than him. The Social Worker confronted the Respondent [ ] about the animals living in her home on numerous occasions to little or no avail.
c. The Respondent [] used corporal punishment to discipline the minor children. That a number of services including in-home aide services were offered to the Respondent [ ] as well as parenting classes, domestic violence classes, and individual and family counseling. She chose not to participate in these services.
. . . .
e. A family services case plan was then developed for the Respondent [ ] and signed [ ]. The plan included, inter alia, a provision that animals were to be removed from the home and not allowed in the home.
. . . .
h. The [Respondent's] pattern has been that she was able to respond to agency expectations and would make steps toward making her home safe and healthy for the minor children, and then the Department would visit the home and find that conditions in the home had reverted to the condition described in paragraph 8b above.
. . . .
k. In March of 2005, the minor child [S.N.P.][4] reported that she had been sexually abused by Virgil a.k.a. "Froggy" Howard, the [Respondent's] adult son by a previous marriage and the minor child's half-brother. The court ordered the Respondent [ ] not to allow "Froggy" to be in the presence of the minor children; the Respondent [] disregarded the Court's order, allowing "Froggy" to transport the minor child [I.M.P.] to a church function and to transport the family to therapy, including [I.M.P.] and [J.A.P.], to therapy.
l. The minor child [I.M.P.] had to be hospitalized due to fears about "Froggy" at the time of his release from custody.[5]
. . . .
o. The Guardian ad Litem Rachal Hannibal reported that when the minor children were residing with the Respondent Mother, the house was chaotic, with no rules or structure. Ms. Hannibal observed the minor children to say and do whatever they wanted, and that they did not listen to the Respondent [ ].
. . . .
q. The [ ] Parents [of the minor children] have a history of domestic violence. In March of 2005, the minor children were present during a domestic violence dispute between the [ ] Parents, which was traumatic for the children.
. . . .
y. The Court finds from the credible evidence that it is highly probable, based on past performance, that neither parent would change his or her parenting practices, or disregard of court orders, and that if either or both children were returned to either or both parents, they would be subjected to the same conditions described above and to continuing neglect.
*21 As Respondent did not challenge any of the trial court's findings of fact, these findings are binding on appeal. State v. Baker, 312 N.C. 34, 320 S.E.2d 670 (1984). Regardless, there is clear, cogent, and convincing evidence to support the trial court's findings of fact. In turn, we hold the trial court's findings of fact support its conclusion that the minor children were neglected within the meaning of N.C. Gen.Stat. § 7B-101 and, thus, that grounds existed to terminate Respondent's parental rights. Accordingly, we overrule this assignment of error.
B. Additional Grounds for Termination
Respondent also asserts that the trial court erred in concluding that grounds existed to terminate her parental rights because she willfully left the minor children in placement outside the home for more than 12 months without showing to the satisfaction of the court that reasonable progress under the circumstances had been made in correcting those conditions which led to the removal of the children, pursuant to N.C. Gen.Stat. § 7B-1111(a)(2), and because Respondent failed to pay a reasonable portion of the cost of care for the juveniles for a period of six months prior to the filing of the termination petitions, pursuant to N.C. Gen.Stat. § 7B-1111(a)(3). However, as only one ground is necessary to support the termination of parental rights, N.C. Gen.Stat. § 7B-1111(a), we need not address whether the findings of fact support termination based on N.C. Gen. Stat. §§ 7B-1111(a)(2) or (3).
C. Best Interests of the Children
By Respondent's next assignment of error, she asserts that the trial court abused its discretion in concluding that the best interests of the minor children would be served by terminating Respondent's parental rights.
Once grounds for termination are established, the trial court must proceed to the dispositional stage where the best interests of the child are considered. There, the court shall issue an order terminating the parental rights unless it determines that the best interests of the child require otherwise. N.C. Gen.Stat. § 7B-1110(a) (2007). The trial court's determination of the child's best interests lies within its sound discretion and is reviewed only for abuse of discretion. In re T.L.B., 167 N.C.App. 298, 605 S.E.2d 249 (2004).
In its order terminating Respondent's parental rights, the trial court made the following unchallenged findings of fact concerning its best interests inquiry:
a. Since the minor children, [J.A.P.] and [I.M.P.], have been in the custody of the Department, they have improved in ways that the Guardian ad Litem Rachal Hannibal and foster parent Sally Wright have described as increased maturity and learning to accept limits on their behaviors; the children are better socialized, are more stable, happier and better-adjusted. The children are also interacting better with their peers and authority figures.
b. [J.A.P.] remains in the care of Perry and Sally Wright, where he has resided since May 3, 2006. He has found a sense of comfortableness and stability in this home that he has never had before.
c. Both [I.M.P.] and [J.A.P.] are doing well in school, with [I.M.P.] receiving all As and Bs and [J.A.P.] receiving all As on their most recent report cards.
d. Both [I.M.P.] and [J.A.P.] continue to receive therapy, case management services, and medication management services.
e. [I.M.P.] and [J.A.P.] visit each other consistently and continue to include each other in their extracurricular activities and celebrations. Their foster families have helped to make sure that the children have ongoing contact in order to maintain their sibling bond.
f. Sally Wright testified that she and her husband wish to adopt the minor child [J.A.P.] should he become free for adoption. Ms. Wright has also recently indicated that she would like to provide a placement in her home for [I.M.P.] as well, despite the fact that she also has two biological teenage sons who reside in the home. [I.M.P.]'s visits in the Wrights' home have been increased; she seems comfortable in *22 their home and gets along well with Mr. and Mrs. Wright.
g. [J.A.P.] had indicated that it is his first desire to be reunited with the Respondent[ ], but if this does not happen, he would like to remain in the home of the Wrights'. [I.M.P.] has indicated that she would like to see the Respondent [] to say goodbye, but does not wish to reside with her anymore.
Based upon these findings, we cannot conclude that the trial court's decision is manifestly unsupported by reason. We thus find no abuse of discretion in the trial court's conclusion that termination of Respondent's parental rights is in the children's best interests. This assignment of error is overruled.
By Respondent's final assignment of error, she asserts she was prejudiced by the trial court's failure to file the written order terminating her parental rights within 30 days of the completion of the hearing.
A trial court must enter a written order regarding its decision on termination of parental rights within 30 days of the completion of the hearing. N.C. Gen.Stat. §§ 7B-1109(e) and 7B-1110(a) (2007). Non-compliance with these statutory time requirements does not warrant a new termination hearing, however, absent a showing of prejudice. In re J.L.K., 165 N.C.App. 311, 598 S.E.2d 387, disc. review denied, 359 N.C. 68, 604 S.E.2d 314 (2004).
In the present case, the termination hearing was held on 12, 26, and 27 July 2007 and the trial court entered the written order 82 days later, on 17 October 2007. While Respondent claims that she was prejudiced by the delay in filing, she offered no evidence in support of this bare assertion. This Court has previously held that despite an 89-day delay in reducing the termination order to writing, "vacating the TPR order" was "not an appropriate remedy for the trial court's failure to enter the order within 30 days of the hearing" where "neglect and abandonment had been proven by clear, cogent and convincing evidence as the grounds upon which respondent's parental rights were being terminated." Id. at 316, 598 S.E.2d at 391. Here, neglect was proven by clear, cogent, and convincing evidence as the grounds upon which Respondent's parental rights were being terminated. Furthermore, the trial court announced its adjudication of neglect and its decision to terminate Respondent's parental rights in open court on 27 July 2007. Accordingly, we conclude that the delay in reducing the trial court's order to writing did not prejudice Respondent and, thus, does not warrant reversal of the trial court's termination of Respondent's parental rights.
For the reasons stated, the order of the trial court is
AFFIRMED.
Judges CALABRIA and STEELMAN concur.
NOTES
[1] The Court's opinion in K.A.D. is silent as to whether summons was issued to K.A.D.'s guardian ad litem, although the opinion reflects that a guardian ad litem had been appointed for K.A.D.
[2] See Footnote 1.
[3] At that time, Respondent's oldest child, S.N.P., who is not a subject of this appeal, was two years old.
[4] S.N.P. is Respondent's oldest daughter, who is not a subject of this appeal.
[5] "Froggy," who was awaiting trial for sexual assault allegedly perpetrated upon S.N.P., made bail and was released from custody around May 2006. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335170/ | 659 S.E.2d 666 (2008)
BONAMICO et al.
v.
KISELLA.
No. A07A1931.
Court of Appeals of Georgia.
March 10, 2008.
Webb, Lindsey & Wade, Jonathan James Wade, Peachtree City, for Appellants.
Shur, McDuffie & Morgan, Darrell Tyrone Carver, Atlanta, for Appellee.
BERNES, Judge.
Brad and Lanette Bonamico appeal from the trial court's grant of partial summary judgment to Progressive American Insurance Company, their uninsured motorist (UM) insurance provider, in a lawsuit involving injuries sustained by Brad Bonamico in a motor vehicle accident. The sole issue on appeal is whether Progressive, as a UM provider, is statutorily obligated to pay a punitive damages judgment in the event that one is awarded to the Bonamicos. Based upon the prior precedent of this Court and our Supreme Court, we conclude that the answer to this question is no.
The facts of this case are undisputed. On December 5, 2003, Brad Bonamico's vehicle was hit from behind by a vehicle driven by Phillip Kisella, who was intoxicated. Brad Bonamico was severely and permanently injured.
The Bonamicos filed a lawsuit against Kisella, alleging negligence and seeking compensatory and punitive damages. Because Kisella was uninsured and otherwise has no assets, the Bonamicos sought recovery for their damages from Progressive under the UM provision of their insurance policy.
Progressive moved for partial summary judgment, arguing that under the prior precedent of both the Supreme Court and this Court, an award of punitive damages could not be recovered under the UM policy.[1] See State Farm, etc. Ins. Co. v. Weathers, 260 Ga. 123, 392 S.E.2d 1 (1990); Dees v. Logan, 281 Ga.App. 837, 838(1), 637 S.E.2d 424 (2006), rev'd on other grounds 282 Ga. 815, 653 S.E.2d 735 (2007); Roman v. Terrell, 195 Ga.App. 219, 219-222(2), (3), 393 S.E.2d 83 (1990). The trial court granted Progressive's motion, resulting in this appeal.
During the time period relevant to this case, the controlling Georgia Uninsured Motorist Statute, OCGA § 33-7-11(a)(1)(A),[2] provided:
*667 No automobile liability policy or motor vehicle liability policy shall be issued . . . unless it contains an endorsement or provisions undertaking to pay the insured all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle . . . because of bodily injury to or death . . . and . . . because of injury to or destruction of property. . . .
Ga. L. 2001, p. 1228, § 1-2.
In Roman, where we addressed the exact question at issue in this case, we held that the statutory language was ambiguous in the punitive damages context because even though it requires a UM provider to pay for "all sums" that an insured is entitled to recover, it limits the recoverable damages to those that result "because of" bodily injury or property damage. OCGA § 33-7-11(a)(1)(A); Roman, 195 Ga.App. at 221(2), 393 S.E.2d 83. An award of punitive damages stems not from a victim's bodily injury or property damage, but from a desire to punish the conduct of a wrongdoer. See Roman, 195 Ga.App. at 221(2), 393 S.E.2d 83. We therefore invoked the rules of statutory construction in order to determine the intent of the Georgia legislature. After applying the maxims of expressio unius est exclusio alterius the express mention of one thing implies the exclusion of another and expressum facit cessare tacitum if some (of many) things are expressly mentioned, the inference is stronger that those omitted are intended to be excluded we concluded that "the purely technical application of the rules of statutory construction favors the conclusion that . . . the legislature's intention was to permit recovery only of compensatory, and not punitive damages." Id. at 221(3)(a), 393 S.E.2d 83.
We also were persuaded by
[t]he reality . . . that most uninsured motorists are judgment proof, or at least difficult judgment debtors against whom to satisfy judgments. The uninsured motorist insurance statute was designed to compensate their victims for this reason. . . . Allowing punitive damages to be awarded against an insurance company can serve no deterrent function because the wrongdoer is not the person paying the damages. There is no point in punishing the insurance company; it has done no wrong. In actual fact, of course, the burden would ultimately come to rest not on the insurance companies but on the public, since the added liability to the insurance companies would be passed along to the premium payers. Society would then be punishing itself for the wrong committed by the tortfeasor. This cannot be the intended purpose of our statute.
(Citations and punctuation omitted.) Roman, 195 Ga.App. at 222(3)(b), 393 S.E.2d 83. Thus, we held that "no recovery of punitive damages may be had against an uninsured motorist carrier." Id.
In Weathers, the Supreme Court of Georgia addressed the same issue. Weathers, 260 Ga. at 123, 392 S.E.2d 1. The Court agreed with our reasoning in Roman and adopted its holding. See id.; Roman, 195 Ga.App. at 219-222(2), (3), 393 S.E.2d 83. Thus, since 1990, when Weathers was decided, it has been the law in Georgia that punitive damages are not recoverable against an uninsured motorist. See, e.g., Dees, 281 Ga.App. at 838(1), 637 S.E.2d 424; Shelter Mut. Ins. Co. v. Bryant, 220 Ga.App. 526, 528(1), 469 S.E.2d 792 (1996); Moore v. State Farm, etc. Ins. Co., 196 Ga.App. 755, 757-758, 397 S.E.2d 127 (1990).
The Bonamicos nevertheless argue that Weathers and Roman were overruled by Gordon v. Atlanta Cas. Co., 279 Ga. 148, 611 S.E.2d 24 (2005). We are unpersuaded. The issue as framed by the Supreme Court in Gordon was "whether Georgia's uninsured motorist statute requires an insurer to pay damages for the death of an insured's son when the insured's son is not a `covered person' under the terms of the insurance policy." Id. at 148, 611 S.E.2d 24. Thus, the issue in Gordon was not one of damages, but *668 of coverage, and so that case does not change the result here. Indeed, in a decision by this Court after Gordon, we reiterated that "[p]unitive damages may not be recovered from a UM carrier." Dees, 281 Ga.App. at 838(1), 637 S.E.2d 424.
For these reasons, the trial court correctly ruled as a matter of law that Progressive is not statutorily obligated to pay a punitive damages judgment awarded to the Bonamicos. Accordingly, we affirm the grant of partial summary judgment to Progressive.
Judgment affirmed.
BLACKBURN, P.J., and RUFFIN, J., concur.
NOTES
[1] The policy itself also excluded recovery of punitive damages in the context of an uninsured motorist.
[2] Effective July 1, 2006, subsection (a)(1) of the Georgia Uninsured Motorist Statute was revised and now provides, in pertinent part, that
No automobile liability policy or motor vehicle liability policy shall be issued . . . unless it contains an endorsement or provisions undertaking to pay the insured damages for bodily injury, loss of consortium or death of an insured or for injury to or destruction of property of an insured under the named insured's policy sustained from the owner or operator of an uninsured motor vehicle. . . .
Ga. L. 2006, p. 815, § 1-3, eff. July 1, 2006. | 01-03-2023 | 10-30-2013 |
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In the Interest of K.C., a child.
No. A07A2011.
Court of Appeals of Georgia.
March 21, 2008.
*822 George Arthur Bessonette, Homerville, Janice W. Prince, for Appellant.
Catherine Harris Helms, Dist. Atty., Homerville, Patricia Ann Pickett, Asst. Dist. Atty., for Appellee.
BARNES, Chief Judge.
The juvenile court adjudicated 15-year-old K.C. delinquent after finding that she committed child molestation and sexual battery. K.C. appeals, challenging the exclusion of certain evidence. She also argues that various procedural violations undermined the delinquency finding. For reasons that follow, we affirm.
The State initially brought charges against K.C. in superior court. Although the record is not completely clear, she apparently was arrested in September 2006 on one count of child molestation, and the State added an aggravated sexual battery charge later that month. Eventually, however, the State dismissed the aggravated battery charge, and the superior court transferred the case to the juvenile court in January 2007.
Following the transfer, the State filed delinquency petitions alleging that K.C. had committed sexual battery and child molestation. The juvenile court also determined that K.C., who had been in a youth detention facility since her original arrest,[1] should remain in detention pending resolution of the allegations.
The court held an adjudicatory hearing in February 2007, and the State presented testimony from the police officer who investigated the molestation allegations. When the State concluded its case, K.C. sought to recall the officer to establish a "possible defense" regarding the original charges filed against her. K.C. asserted that she never should have been charged in superior court and that the State's failure to follow appropriate juvenile court procedures after her arrest resulted in an extended, illegal detention. The juvenile court prohibited K.C. from examining the officer on this issue, finding that she had waived the procedural argument by not raising it in the superior court.
As noted by K.C., various procedural and timing requirements govern juvenile court cases. For example, once authorities detain an allegedly delinquent child, "an informal detention hearing shall be held promptly and not later than 72 hours after the child is placed in detention . . . to determine whether detention . . . of the child is required." OCGA § 15-11-49(c)(1). If the juvenile court continues the detention, a delinquency petition must be "made and presented to the court within 72 hours of the detention hearing." OCGA § 15-11-49(e). On appeal, K.C. claims that she should have been allowed to present evidence that the State failed to meet these requirements, and she argues that the procedural flaws require reversal.
We disagree. K.C. does not question the procedures employed after her case was transferred to the juvenile court in January 2007. She makes no claim that the State or juvenile court failed to meet the statutory deadlines and other requirements following the transfer. Instead, she focuses on her arrest and detention in September 2006, asserting that she was entitled to a 72-hour detention hearing and similar juvenile court protections in connection with that arrest.
In making this claim, K.C. correctly argues that the original child molestation charge should have been filed in juvenile court, rather than superior court. See In the Interest of M.S., 277 Ga.App. 706, 627 S.E.2d 422 (2006) (juvenile court has exclusive jurisdiction over child molestation cases brought against juveniles). But once the State added the aggravated sexual battery count, the superior court gained jurisdiction. See OCGA § 15-11-28(b)(2)(A)(vi). Moreover, even if the juvenile court procedures initially should have been followed, we find no basis for reversal.
The juvenile court procedures do not implicate the merits of a delinquency petition, and their violation does not demand an acquittal. On the contrary, noncompliance *823 authorizes dismissal of the petition without prejudice. In the Interest of R.D.F., 266 Ga. 294, 296(3), 466 S.E.2d 572 (1996) (discussing noncompliance with statutes currently codified at OCGA §§ 15-11-49 (formerly OCGA § 15-11-21), 15-11-39 (formerly OCGA § 15-11-26), 15-11-47 (formerly OCGA § 15-11-19)). K.C.'s remedy, therefore, was to seek dismissal of the superior court charges, not raise the procedural issue as a substantive defense to the delinquency petition. Furthermore, such dismissal would have been without prejudice, and the State would have been authorized to file new delinquency allegations in juvenile court. See id. Although the process was slightly different here, the end result newly filed delinquency petitions was essentially the same. Under these circumstances, any procedural flaws in the superior court proceeding did not undermine the new delinquency petitions.
Finally, we find no error in the juvenile court's refusal to hear evidence regarding these alleged flaws at the adjudicatory hearing. As noted by the juvenile court, the procedural claim should have been raised in the superior court and had no bearing on the validity of the delinquency petitions or the substantive charges against K.C. Accordingly, the juvenile court properly excluded this evidence. See In the Interest of M.V.H., 281 Ga.App. 486, 489(2), 636 S.E.2d 168 (2006) (juvenile court exercises discretion in determining admissibility of evidence in adjudicatory hearing); Clanton v. State, 271 Ga.App. 444, 445(2), 609 S.E.2d 761 (2005) (evidence that does not tend to prove, disprove, or shed light upon a material fact at issue in a case is irrelevant and should be excluded).
Judgment affirmed.
SMITH, P.J., and MILLER, J., concur.
NOTES
[1] The superior court granted K.C.'s request for bond in November 2006, but, according to the State, she could not meet the conditions for release. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335269/ | 631 S.E.2d 438 (2006)
279 Ga. App. 394
ESTES
v.
The STATE.
No. A06A0495.
Court of Appeals of Georgia.
May 15, 2006.
*440 Swift, Currie, McGhee & Hiers, Christopher R. Reeves, Dallas, Sarah L. Gerwig-Moore, Atlanta, for appellant.
Fred A. Lane, Jr., District Attorney, Allen R. Knox, Assistant District Attorney, for appellee.
JOHNSON, Presiding Judge.
A jury convicted James Michael Estes of aggravated child molestation, child molestation, and aggravated sexual battery arising from his contact with his great-nieces. On appeal, Estes argues that Georgia's child hearsay statute is unconstitutional as applied in this case, and that the trial court erred when it admitted similar transaction evidence and when it admitted the children's testimony without making a finding that it was sufficiently reliable. Estes also argues that trial counsel was ineffective. We find no error and affirm.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.[1] We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.[2]
So viewed, the record shows that Estes kissed and groped both victims, who were four and ten years old at the time, in the home he shared with them. He also threatened to kill one of the victims if she told anyone about the abuse. After the jury convicted Estes of six counts of child molestation, four counts of aggravated sexual battery, and one count of aggravated child molestation, the trial court sentenced him to *441 forty years with fifteen to serve. Estes' motion for new trial was denied. Estes first appealed his conviction to the Supreme Court of Georgia, which transferred the case to this Court on the ground that he had waived his constitutional objection to Georgia's child hearsay statute by failing to raise it in his motion for new trial.[3]
1. As a preliminary matter, we note that we are bound by our Supreme Court's determination, made when it transferred this case to this Court, that because Estes failed to raise his constitutional objection to the child hearsay statute at trial and before the return of the guilty verdict against him, he has waived this objection on appeal.[4] We also observe that although Estes does not challenge the sufficiency of the evidence, our review of the record indicates that the evidence was indeed sufficient to sustain his convictions.[5]
2. Estes next argues that the trial court erred when it admitted two similar transactions after a Uniform Superior Court Rule 31.3(B) hearing[6] without analyzing their "use and relevance." We disagree.
In order to admit similar transaction evidence, the state must show that (1) the evidence is offered for a proper purpose; (2) sufficient evidence exists that the defendant committed the similar transaction; and (3) there are enough similarities between the other transactions and the charged offense that proof of the former tends to prove the latter. A proper purpose for the introduction of the evidence would be to show motive, intent, plan, identity, bent of mind, or course of conduct.[7]
A trial court's decision concerning the admission of similar transaction evidence will not be disturbed unless there was an abuse of discretion.[8]
(a) The first of these transactions involved the mother of the victim, who claimed that she had been molested by Estes approximately twenty years before, when she was between seven and eleven years old. Estes himself called the mother to the stand, conceding in the process that the similar transaction evidence was admissible. The state chose not to cross-examine the mother. Having put this witness on the stand, and having elicited testimony concerning the transaction, Estes cannot now complain that the trial court erred in admitting evidence she gave on the subject.[9]
(b) The second similar transaction, also dating from twenty years before, involved Estes's arrest for molesting another child, who was between four and six years old at the time. Although this witness could not herself recall the abuse, her stepmother testified to it, including a gonorrheal infection allegedly contracted as a result. At the Rule 31.3 hearing, however, Estes did not object to the testimony concerning this transaction on the ground that the trial court had not made proper findings or that the transaction was not sufficiently similar. Instead, he argued only that there was insufficient evidence that the transaction had occurred, and asked for a limiting instruction, which the trial court later gave. Most important, Estes did not object to the stepmother's testimony at trial, and also chose not to cross-examine her stepdaughter. He has thus waived any objection he may have had as to the form of the trial court's similar-transactions ruling on appeal.[10]
*442 3. Estes also argues that the trial court erred when it failed to determine that the stepmother's testimony concerning the second similar transaction was sufficiently reliable to be admissible, thus violating his Sixth Amendment right to confront the witnesses against him.[11] Again, we disagree.
Although the rules concerning the Confrontation Clause and hearsay evidence generally protect similar values, they do not always prohibit the same evidence. The Confrontation Clause may bar the admission of some evidence that would be admissible under an exception to the hearsay rule. The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.[12]
Here, Estes did not object to the introduction of the stepmother's testimony at trial on the ground that his right to confront the witness had been violated. He has thus waived any objections he may have had under the Confrontation Clause of the Sixth Amendment for purposes of appeal.[13]
4. Finally, Estes argues that his trial counsel was ineffective in (a) failing to prepare adequately as to both the case-in-chief and the similar transactions, (b) failing to object to references to similar transactions in the State's closing argument, and (c) failing to object to the mother's testimony as putting his character impermissibly at issue. We disagree.
"To prove an ineffective assistance of counsel claim, [a] defendant must show that trial counsel performed deficiently and that the result of the trial would have been different but for the deficiency."[14] Moreover, "a strong presumption exists that trial counsel performed within the wide range of reasonable professional assistance. [A] trial court's determination that [a defendant] was afforded effective assistance of counsel will not be reversed on appeal unless it was clearly erroneous."[15]
(a) Estes failed to raise the matter of inadequate preparation in his amended motion for new trial, where he raised several other claims concerning ineffective assistance of trial counsel, or at the hearing on that motion. The matter of inadequate preparation is therefore waived on appeal.[16]
The record shows, moreover, that counsel obtained and reviewed discovery from the State, including records relating to the victims, and interviewed his client, his client's family, and other witnesses in the case. The fact that counsel did not interview the mother of the second similar transaction victim did not make his performance deficient, since the mother had refused to give a statement or to take a polygraph test before trial on the ground that such acts might incriminate her. The trial court did not err when it found no deficiency here.[17]
(b) The passages from the State's closing argument of which Estes complains include (i) the State's assertion that one of the similar transactions "is a good example [of] how we used to think that we should just push these cases under the rug," and that "we don't want to waste taxpayer dollars prosecuting cases where most of the time ... there's no evidence at all[,] [n]othing but a little girl and her word"; (ii) the State's *443 suggestion that while the abuse ended when one of the victims sought help, "[t]he beginning is somewhere back [in the past]. We don't know"; and (iii) the State's conclusion that "[o]ver the course of twenty years, we know of four lives he has touched," and that "by touched, there are a lot of meanings to that word."
In each of these passages, however, the State was responding to specific assertions by the defense. (i) Estes argued that he should be acquitted because there was no physical evidence to corroborate the victims' statements and no prosecution of the similar transactions, whereas the State argued that a lack of physical evidence should no longer be a bar to prosecution. (ii) Estes argued that the victims' delay in disclosing the molestation suggested that it did not occur, whereas the State argued that the long time span between the similar transactions and the crimes alleged in the case-in-chief suggested that Estes' abuse of children had been going on for an indeterminate amount of time. (iii) Estes also argued that the victims had acted in a manner inconsistent with having been abused, whereas the State argued that both victims' emotional difficulties corroborated their accounts of abuse. In each of these cases, then, the State was free to refer to evidence admitted in the case and to characterize it in a manner consistent with its contention that Estes was guilty as charged in the case-in-chief.
Since there would have been no merit to objections concerning any part of the State's closing argument in this case, trial counsel did not perform deficiently when he failed to make such objections.[18] There was no ineffective assistance here.
(c) Finally, Estes argues that trial counsel was ineffective in failing to object to the testimony of the victims' mother, a witness called by Estes himself, as putting his character in issue. Again, we disagree.
"In the realm of specific decisions regarding trial strategy, and in particular decisions about which witnesses should be called to testify, defense attorneys are afforded wide discretion."[19] At the hearing on the motion for new trial, counsel testified that he believed the mother so "unbelievable" a witness that her "exaggerations" and "tirades" would help Estes' case rather than hurt it, and that he called the witness for these reasons. This judgment is well supported by the record of the mother's testimony, which includes outbursts, nonsensical answers, and unauthorized departures from the courtroom. There was no deficient performance in calling this witness to testify in the hope that the jury would find her testimony, including her accusations against Estes, incredible.[20]
The trial court did not err when it denied Estes' motion for new trial.
Judgment affirmed.
MILLER and ELLINGTON, JJ., concur.
NOTES
[1] Williams v. State, 261 Ga.App. 793, 794(1), 584 S.E.2d 64 (2003).
[2] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[3] See OCGA § 24-3-16; Lewis v. State, 279 Ga. 69, 70(2), 608 S.E.2d 602 (2005) (challenge to constitutionality of statutes first raised after return of guilty verdict deemed waived on appeal).
[4] See Lewis, supra.
[5] See Jackson, supra.
[6] See Williams v. State, 261 Ga. 640, 642(2)(b), 409 S.E.2d 649 (1991); Rule 31.3(B) (establishing procedure in accordance with Williams for admission of similar transaction evidence).
[7] (Footnotes and punctuation omitted.) Woods v. State, 250 Ga.App. 164, 165-166(1)(a), 550 S.E.2d 730 (2001).
[8] Knox v. State, 270 Ga.App. 571, 572(1), 607 S.E.2d 167 (2004).
[9] See Woods, supra, 250 Ga.App. at 167(1)(b), 550 S.E.2d 730.
[10] See Knox, supra, 270 Ga.App. at 573(1), 607 S.E.2d 167; Murphy v. State, 270 Ga. 72, 73(2)(a), 508 S.E.2d 399 (1998).
[11] See Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (when a declarant is unavailable and his out-of-court statement "testimonial," the statement is admissible only if defendant had previous opportunity to cross-examine declarant).
[12] (Citation and punctuation omitted.) Walton v. State, 278 Ga. 432, 434(1), 603 S.E.2d 263 (2004).
[13] See id.
[14] Fargason v. State, 266 Ga. 463, 465(4), 467 S.E.2d 551 (1996), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
[15] (Citations omitted.) Turner v. State, 245 Ga. App. 294, 295(4), 536 S.E.2d 814 (2000).
[16] Moore v. State, 279 Ga. 45, 47-48(8), 609 S.E.2d 340 (2005).
[17] See Richardson v. State, 194 Ga.App. 358, 359-360(1)(d), (e), 390 S.E.2d 442 (1990) (no deficient performance in failure to interview uncooperative witnesses).
[18] See Hayes v. State, 279 Ga. 642, 645(3), 619 S.E.2d 628 (2005); Milner v. State, 271 Ga. 578, 579(2), 522 S.E.2d 654 (1999) (no deficient performance or prejudice in failing to object to State's closing argument).
[19] (Footnote omitted.) Simpson v. State, 277 Ga. 356, 359(4)(c), 589 S.E.2d 90 (2003).
[20] Id.; Roundtree v. State, 268 Ga.App. 877, 877-878(1), 602 S.E.2d 890 (2004). | 01-03-2023 | 10-30-2013 |
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279 Ga. App. 570
HARRIS
v.
The STATE.
No. A06A0654.
Court of Appeals of Georgia.
May 25, 2006.
*774 Maria Murcier-Ashley, Marietta, for appellant.
Patrick H. Head, District Attorney, Charles P. Boring, Amelia G. Pray, Assistant District Attorneys, for appellee.
MIKELL, Judge.
Timothy Donald Harris was convicted of two counts of child molestation (Counts 1 and 2) and one count of aggravated sexual battery (Count 3). He was sentenced to serve twenty years on Counts 1 and 3, to run concurrently, and ten years probation on Count 2, to run consecutively to the remaining sentence. On appeal from the denial of his amended motions for new trial, Harris argues that (1) the trial court abused its discretion in permitting a physician to testify, over objection, that his findings were consistent with molestation; (2) the state failed to prove venue beyond a reasonable doubt as to Count 3; and (3) trial counsel rendered ineffective assistance. We find no merit in these contentions and affirm Harris' convictions.
1. Harris first contends that the trial court abused its discretion in permitting an expert witness, the pediatrician who examined the victim in the emergency department at Scottish Rite Children's Medical Center, to testify, over objection, that his findings were consistent with molestation. Prior to trial, the defense filed a motion in limine to preclude the pediatrician from testifying that the child was a "probable victim of child molestation," asserting that such testimony would be a prohibited expression of opinion on the ultimate issue in the case.[1] The trial court ruled that the expert witness would be permitted to state that his findings were consistent with a finding of molestation. During direct examination of the witness, the prosecutor asked him the following question: "Q. Is the genital exam that you conducted in your findings, is that consistent with the story that [the victim] was telling you about or told the social worker about the molestation?" Defense counsel objected, reasserting the objection raised in the motion in limine. The trial court ruled that the pediatrician could testify as to whether "he found it consistent." The prosecutor then asked the pediatrician, "was it consistent with the molestation that was being alleged by [the victim]?" The pediatrician answered, "Yes."
Harris contends that the pediatrician's testimony improperly invaded the province of the jury and bolstered the victim's credibility. We recently reiterated the Georgia rule on this issue in Patterson v. State:[2]
[I]n no circumstance may a witness' credibility be bolstered by the opinion of another, *775 even an expert, as to whether the witness is telling the truth. An expert witness may not testify as to his opinion of an ultimate issue of fact unless the inference to be drawn from the evidence is beyond the ken of the jurors. Credibility of a witness is not beyond the ken of the jurors but, to the contrary, is a matter solely within the province of the jury. An expert witness may not testify as to his opinion of the victim's truthfulness. An expert witness may testify generally about the ability of children of a certain age to distinguish truth from falsity. The witness may also express an opinion as to whether medical or other objective evidence in the case is consistent with the victim's story. However, an expert witness may not put his or her stamp of believability on the victim's story.[3]
In Patterson, we reversed the defendant's conviction of child molestation and aggravated battery, holding that the trial court erred by allowing the state's expert witness to testify over objection that she did not believe that the victim fabricated the allegations against the defendant. We concluded that the testimony improperly bolstered the victim's credibility.[4]
The objectionable testimony in Patterson stands in stark contrast to the expert testimony in the case at bar. In this case, the pediatrician's testimony that his medical findings were consistent with the victim's allegation of molestation is permitted by the rule stated in Patterson that the expert "may also express an opinion as to whether medical or other objective evidence in the case is consistent with the victim's story."[5] Here, the pediatrician's testimony is akin to that of the treating psychologist in Williams v. State,[6] who testified that the results of her testing were consistent with the victim's statements that she had been sexually abused.[7] "The testimony of experts that certain medical or scientific tests resulted in findings consistent with molestation does § 24-9-80; it is admissible and proper."[8] Here, too, the pediatrician's testimony that his medical findings were consistent with the victim's allegation of molestation was admissible and proper. It follows that the trial court did not err in overruling the defense's objection to the testimony.
2. Harris next contends that the state failed to prove venue beyond a reasonable doubt as to the charge of aggravated sexual battery. We disagree.
Generally, a criminal case must be tried in the county in which the crime was committed.[9] "Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged."[10] Like every other material allegation in the indictment, it must be proved beyond a reasonable doubt.[11] The state may establish venue by direct or circumstantial evidence.[12] As an appellate court, we apply the same standard of review to determine whether venue has been laid as we do to any other essential element of the offense. In other words, "we view the evidence in a light most favorable to support the verdict [to] determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted."[13]
*776 In the case at bar, Harris was convicted of aggravated sexual battery based on evidence that he inserted his finger into the vagina of his seven-year-old stepdaughter. The child's testimony as to the manner in which this offense was committed was introduced in the form of a videotape that was played for the jury. On the videotape, which has been included in the record on appeal, the child told a detective that one morning, Harris drove her to the bus stop in his truck. They were alone, and according to the child, "we were a little bit early so we rode around." During this time, the child testified, Harris told her to pull down her underwear and tights and to open her legs. He inserted his finger into the child's vagina and then licked his finger. The child further stated that all incidents in which he touched her inappropriately occurred either at her house or while she was riding around in Harris' truck. It was established through the testimony of the victim's mother that she and Harris lived together in a home in Cobb County before and after their marriage in 2002, that he moved out in November 2002, and that the child lived with her mother, although Harris was permitted to visit her in her home in Cobb County.
In Georgia, "where a crime is committed upon a vehicle traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the vehicle traveled."[14] In this case, the direct and circumstantial evidence, viewed in the light most favorable to support the verdict, shows that Harris committed aggravated sexual battery upon the child while traveling from her home in Cobb County to a bus stop. Therefore, the evidence established that the vehicle in which the crime occurred traveled through Cobb County. The state proved venue beyond a reasonable doubt, and Harris' contention to the contrary is meritless.[15]
3. Finally, Harris contends that his trial counsel rendered ineffective assistance by failing to object to the state's allegedly improper cross-examination. We disagree.
Harris testified on direct that he was the youngest of ten children and that he has approximately thirty nieces, great nieces, and great nephews, all of whom live in the metro Atlanta area. Harris testified that he had been around children all of his life, that he loved children, and that he had never harmed the victim. According to Harris, "I can't hurt a child at all. It ain't me."
On redirect, defense counsel asked Harris to explain a letter that the prosecution had introduced into evidence during the state's case. In the letter, which Harris wrote to the victim's mother a few months after the victim's outcry, Harris asked her and the Lord to "forget [sic] me of all the wrong doing." Harris professes his continuing love for the victim's mother and wishes her a happy Mother's Day. Harris testified that in the letter, he only meant to apologize for screaming at her and cursing her. Harris further testified that he received a response from the victim's mother, in which she called him a child molester and a "sick mother fucker." Defense counsel questioned him about the response, which was introduced into evidence, as follows:
Q. Number one, are you a child molester?
A. No, I'm not.
Q. Are you a sick mother fucker?
A. No, I am not.
Q. Have you ever harmed, touched a child?
A. No, I haven't.
Immediately thereafter, the prosecutor asked Harris the following questions:
Q. You say you're not a child molester?
A. No, I'm not.
Q. You say you've never harmed a child?
*777 A. No, I have not.
Q. Have you ever exposed yourself to a minor?
A. No, I haven't.
Q. You ever had any problems or allegations against you with any of your nieces?
A. No, I haven't.
Harris contends that trial counsel should have objected to the prosecutor's questions regarding whether he had exposed himself to a minor and whether his nieces had made allegations against him. Harris argues that the questions were improper impeachment because they pertained to unproved crimes, and that they were inflammatory, prejudicial, and suggested facts not in evidence. Harris argues that, because there was evidence that he had exposed himself to the victim, any suggestion of improper sexual contact with a minor was extremely prejudicial.
"To prevail on a claim of ineffective assistance of counsel, a defendant must show two things: (1) that counsel's performance was deficient, and (2) that the deficiency prejudiced the defense."[16] We will not disturb the findings of the trial judge, who presided over the trial and heard the evidence presented at the hearing on the motion for new trial, unless they are clearly erroneous.[17] Furthermore, "[w]e will not reverse on the basis of ineffective assistance of counsel unless trial counsel's conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result."[18]
At the hearing on Harris' motion for new trial, trial counsel testified that he decided to place Harris' character in issue after discussing the matter with him. Knowing that the state had no evidence of prior crimes to introduce, defense counsel testified that his trial strategy was to show that the type of acts for which Harris stood accused were "totally out of character." Counsel further testified that he did not object to the two questions at issue because he believed he had opened the door to that line of questioning and because he knew that the state possessed no evidence that could be introduced to harm Harris.
On the basis of this testimony, we find no clear error in the denial of Harris' motion for new trial. First, the prosecutor's question about whether Harris had exposed himself to a minor was proper because it formed part of the basis of one of the child molestation charges in the indictment, and Harris had already testified that he had never harmed a child. On the other hand, trial counsel could have objected to the question about whether Harris' nieces had ever made any allegations against him, because "[s]pecific instances of misconduct may not be used to impeach a witness's character or credibility, unless the misconduct has resulted in conviction of such a crime."[19] But we have repeatedly held that "[d]ecisions as to whether to interpose certain objections fall within the realm of trial tactics and strategy and usually provide no basis for reversal of a conviction."[20] "Additionally, trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them."[21] Harris did not make this showing and has failed to sustain his burden of proving that his attorney rendered assistance so ineffective that it undermined the proper functioning *778 of the adversarial process.[22]
Judgment affirmed.
BLACKBURN, P.J., and ADAMS, J., concur.
NOTES
[1] See generally Gosnell v. State, 247 Ga.App. 508, 509(2), 544 S.E.2d 477 (2001).
[2] 278 Ga.App. 168, 628 S.E.2d 618 (2006).
[3] (Citations omitted; emphasis supplied.) Id. at 170, 628 S.E.2d 618
[4] Id.
[5] Id. See also State v. Oliver, 188 Ga.App. 47, 51(2), 372 S.E.2d 256 (1988).
[6] 266 Ga.App. 578, 597 S.E.2d 621 (2004).
[7] Id. at 581(2), 597 S.E.2d 621.
[8] (Citations omitted.) Id. See also Atkins v. State, 243 Ga.App. 489, 495(2), 533 S.E.2d 152 (2000).
[9] Ga. Const.1983, Art. VI, Sec. II, Par. VI; OCGA § 17-2-2(a).
[10] (Footnote omitted.) Jones v. State, 272 Ga. 900, 901(2), 537 S.E.2d 80 (2000).
[11] Id.
[12] Id. at 902-903(2), 537 S.E.2d 80.
[13] (Citations omitted.) Chapman v. State, 275 Ga. 314, 317(4), 565 S.E.2d 442 (2002).
[14] (Footnote omitted.) Gearin v. State, 255 Ga. App. 329, 334(3), 565 S.E.2d 540 (2002). See OCGA § 17-2-2(e).
[15] See Gearin, supra.
[16] (Footnote omitted.) Daguilar v. State, 275 Ga.App. 756, 758(2), 621 S.E.2d 846 (2005).
[17] Id.
[18] (Footnote omitted.) Glass v. State, 255 Ga. App. 390, 401(10), 565 S.E.2d 500 (2002).
[19] (Citation omitted.) Smith v. State, 222 Ga. App. 366, 369(4), 474 S.E.2d 272 (1996).
[20] (Citation omitted.) Smith v. State, 261 Ga. App. 871, 877(5)(a), 583 S.E.2d 914 (2003). See Horne v. State, 273 Ga.App. 132, 133(4), 614 S.E.2d 243 (2005) (counsel's failure to object to irrelevant questions which placed defendant's character in evidence not ineffective in child molestation case).
[21] (Citation and footnote omitted.) Lewis v. State, 275 Ga.App. 41, 44(3), 619 S.E.2d 699 (2005).
[22] Glass, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335311/ | 631 S.E.2d 743 (2006)
279 Ga. App. 509
BILOW
v.
The STATE.
No. A06A0217.
Court of Appeals of Georgia.
May 23, 2006.
*744 Burnette & Driggers, Benjamin D. Driggers, Macon, for appellant.
Howard Z. Simms, District Attorney, Pamela White-Colbert, Assistant District Attorney, for appellee.
ADAMS, Judge.
Charles Emmett Bilow ("Charlie") appeals after a jury convicted him on one count of burglary, one count of aggravated assault and one count of criminal trespass.[1] We affirm.
Viewed in the light most favorable to support the verdict, the evidence at trial showed that Charlie and Tracy Bilow divorced on March 3, 2004 after 14 years of marriage. During their marriage, the Bilows lived in a mobile home on property owned by Tracy, and she was awarded both the mobile home and the property in the divorce proceedings. After the divorce, the Bilows maintained a relationship and Charlie sometimes stayed at Tracy's mobile home. Tracy testified, however, that she made one rule: that Charlie was not to come to her trailer when he was drunk.
On March 25, 2004, Charlie worked during the day with his brother and employer, Richard Bilow. Richard testified that he dropped Charlie off at the mobile home after work and planned to meet Charlie there the next morning to give him a ride to work. Tracy testified that when she first saw Charlie that evening, he was inebriated. He rode up on his bicycle from his parents' house and sat on the back steps. Charlie then got a ladder and began unscrewing the light bulbs from Tracy's motion-detector lights, telling her that he was "cutting [her] security." After Tracy climbed the ladder and began to screw the bulbs back in place, Charlie ran at the ladder as if he were going to knock her off. But there were people in the yard next door, so Charlie left.
Charlie returned about 45 minutes later carrying two bottles of wine and began to argue with Tracy. During the argument, Charlie pulled out a partially opened black-handled pocket knife and threatened to kill her. Tracy told him to leave. When he did not leave, Tracy called the police. The sheriff's deputies who responded told Charlie to pour out the alcohol he was drinking and instructed him to leave. Charlie took a sip and then poured the two bottles out onto the trailer floor. He told the officers he would leave. At that time the officers did not believe that they had enough evidence to place him under arrest.
Tracy testified that Charlie returned later and was still angry. They argued again and Tracy said that she grabbed a metal bar to protect herself. She hit the bar on a chair to scare Charlie, but he took the bar away from her and began to beat her on her arms and legs. He also began to choke her. Tracy testified that she almost passed out before Charlie released his grip on her neck. She again called police, and Charlie left before they arrived. The deputies observed marks on Tracy's arms, legs, and neck, and one of the deputies took photographs of her injuries, which were introduced into evidence at trial. The other deputy secured Tracy's door using a wire hanger to keep it shut, but Tracy testified that Charlie later "snatched" *745 the wire off in order to come inside the house.
Tracy called the police a third time that night after Charlie returned, and she reported that he had beaten her again with the bar. After that incident, the deputy stayed with Tracy for a while but never saw Charlie. Tracy summoned police a fourth time, and one of the deputies testified that she saw Charlie exiting the rear door of the trailer as she arrived. Although the officers searched for him in the area around the trailer, they were not able to find him. Because Tracy was so upset, one deputy decided to stay with her for a while but eventually left to retrieve her own car. Right after the deputy left, Charlie returned and knocked on the trailer door. But the deputy saw Charlie, and returned and placed him under arrest.
The state also introduced evidence of prior difficulties between Charlie and Tracy showing that the police had been called to the residence on at least three prior occasions on domestic violence calls. The state introduced a copy of Charlie's guilty plea to a charge of simple assault in connection with one of these incidents.
Charlie testified at trial that when the deputies arrived at the trailer on the first occasion, he asked if he could leave and that he was never told to leave. He stated that when he was unable to get a ride, he went into the trailer to retrieve a coat and a sleeping bag and then went into a field to sleep. He used an alarm clock to wake himself in time to get to work. He said that he returned to the trailer that morning to catch his ride to work. He stated that he was unaware that Tracy had called the police several more times that night.
1. Charlie contends the evidence was insufficient to support his convictions. In making this argument, Charlie points to what he argues are inconsistencies and conflicts in the evidence and asserts that the evidence against him was purely circumstantial. In addition, Charlie argues that because the evidence showed that he resided in the trailer and had the authority to enter it, he could not be guilty of burglary or criminal trespass.
It is well settled that on appeal an appellant no longer enjoys a presumption of innocence and this Court determines only evidence sufficiency. We do not weigh the evidence or determine witness credibility. Cook v. State, 276 Ga.App. 803, 804(1), 625 S.E.2d 83 (2005). Here the evidence was sufficient to support Charlie's convictions.
"OCGA § 16-7-1(a) provides that a person commits a burglary when he enters the dwelling or building of another, without authority, and with the intent to commit a felony or theft therein." Morton v. State, 276 Ga.App. 421(1), 623 S.E.2d 239 (2005). And "[u]nder OCGA § 16-7-21(b), a person commits criminal trespass if he enters or remains on the property of another without authority and with the knowledge that he has been given notice that his presence is forbidden." (Footnote omitted.) Pressley v. State, 269 Ga.App. 143, 145(1)(a), 603 S.E.2d 699 (2004). There was sufficient evidence for the jury to find that the trailer belonged solely to Tracy and that Charlie stayed there on occasion with her permission. Moreover, Tracy testified that she made a firm rule that Charlie was not allowed at the trailer when he was drinking alcohol. The evidence established that Charlie entered the trailer that night on several occasions without Tracy's permission, after he had been drinking and after having been ordered from the trailer both by Tracy and by police. "[O]nce the victim ... withdraw(s) the defendant's authority to enter her house, the fact that the defendant may have once lived at the victim's house and had left personal property within the house does not, in itself, give the defendant subsequent authority to enter." (Punctuation and footnote omitted.) Williams v. State, 268 Ga.App. 384, 386-387(1)(b), 601 S.E.2d 833 (2004). Moreover, the jury was authorized to find on the evidence that Charlie entered the trailer on at least one occasion with the intent to assault Tracy. Accordingly, the evidence was sufficient to support Charlie's convictions on the charges of burglary and criminal trespass. See Smith v. State, 279 Ga. 172, 174(1), 611 S.E.2d 1 (2005); Pressley v. State, 269 Ga.App. at 145(1)(a), 603 S.E.2d 699; Williams v. State, *746 268 Ga.App. at 386(1)(b), 601 S.E.2d 833; Armour v. State, 247 Ga.App. 592(1), 544 S.E.2d 516 (2001). And the evidence that Charlie struck Tracy with the bar was sufficient to support his conviction on the aggravated assault charge. See Coppock v. State, 273 Ga. 324(1), 540 S.E.2d 187 (2001); Peek v. State, 234 Ga.App. 731, 732(1), 507 S.E.2d 553 (1998).
The fact that Charlie offered another version of the events of that night does not render the other evidence against him insufficient or circumstantial. "A jury is authorized to believe or disbelieve all or any part of the testimony of witnesses[,] and it serves as the arbiter of conflicts in the evidence before it." (Citation and punctuation omitted.) Campbell v. State, 258 Ga.App. 863, 866, 575 S.E.2d 748 (2002). In this case, the jury obviously chose to disbelieve Charlie's version of the events, and the remaining evidence was sufficient to convince a rational trier of fact of Charlie's guilt beyond a reasonable doubt.
2. Charlie also asserts that his conviction should be reversed because new evidence was discovered after the trial that would likely have produced an acquittal if the jury had been aware of it. The proffered evidence consists of an affidavit from Tracy's father, who previously had adopted Charlie's and Tracy's minor children. He averred that on March 24, the day before the assault, he told Charlie and Tracy that if they wanted to get their children back, they "needed to get themselves straightened out." After Charlie's arrest, he asked Tracy what had happened. He states that Tracy first told him that Charlie had assaulted a police officer and then told him that Charlie had assaulted her. She later told him that with Charlie gone, she could now get her children back. Charlie asserts that because his defense at trial was that Tracy had fabricated the assault, this evidence was vital to establish motive.
In order to procure a new trial based upon subsequently discovered evidence, a defendant must satisfy the court:
(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.
(Citation omitted.) Tessmer v. State, 273 Ga. 220, 226(7), 539 S.E.2d 816 (2000). "All six requirements must be complied with to secure a new trial." Cato v. State, 195 Ga.App. 619, 620(2), 394 S.E.2d 413 (1990). We agree with the trial court's finding that this evidence was offered only to impeach Tracy's testimony. Because the only effect of this evidence would be to impeach the "credit of a witness," Charlie has failed to establish the sixth requirement and no new trial is warranted. Accordingly, the trial court did not abuse its discretion in denying Charlie's motion for a new trial on this ground. See Tessmer v. State, 273 Ga. at 226(7), 539 S.E.2d 816; Jackson v. State, 191 Ga.App. 244, 245(3), 381 S.E.2d 392 (1989).
Judgment affirmed.
BLACKBURN, P.J., and MIKELL, J., concur.
NOTES
[1] The jury acquitted Bilow on two other counts of aggravated assault. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335346/ | 631 S.E.2d 675 (2006)
280 Ga. 675
WIDNER
v.
The STATE (two cases).
Nos. S06A0443, S06A1547.
Supreme Court of Georgia.
June 26, 2006.
*677 Joseph Scott Key, Sexton, Key & Hendrix, P.C., Stockbridge, for Appellant.
Tommy Kenneth Floyd, Dist. Atty., James L. Wright, III, Asst. Dist. Atty., for Appellee.
MELTON, Justice.
Viewed in the light most favorable to the verdict, the record shows that, on December 29, 2002, Joshua Ray Widner, who was eighteen years old at the time, admittedly engaged in acts of oral sex and sexual intercourse with a fourteen-year-old girl. Based on this conduct, Widner was convicted of two counts of aggravated child molestation and one count of statutory rape. Widner now appeals, contending, among other things, that his mandatory sentence of ten years without the possibility of parole for aggravated child molestation based on an act of sodomy constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution and the comparable Georgia constitutional provision, Art. I, § I, Par. XVII.[1] For the reasons set forth below, we affirm.
1. Widner contends that his mandatory sentence for aggravated child molestation of ten years without parole pursuant to OCGA § 16-6-4(d)(1) and OCGA § 17-10-6.1 constitutes cruel and unusual punishment as applied to him. In essence. Widner contends that his crime should be given special treatment and excepted from the mandated punishment because he was 18 at the time of the act and the victim was only four years younger. The law at the time of the commission of the crime, however, provides no such exception, and, because the required punishment does not unconstitutionally shock the conscience, Widner's sentence must stand.
Punishment for a crime will be deemed to be unconstitutionally excessive if it "(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime." Cox v. State, 241 Ga. 154, 155, 244 S.E.2d 1 (1978). "[A] sentence which is not otherwise cruel and unusual does not become so simply because it is `mandatory.' [Cit.]" Ortiz v. State, 266 Ga. 752, 753(2), 470 S.E.2d 874 (1996). "Legislative enactments constitute the clearest and most objective evidence of how contemporary society views a particular punishment. [Cit.] As a result, the issue of punishment is generally one for the legislative branch, and legislative discretion is deferred to unless the sentence imposed shocks the conscience. [Cit.]" Johnson v. State, 276 Ga. 57, 62(5), 573 S.E.2d 362 (2002).
The facts of this case show that Widner, a legal adult, pursued the victim and got her to agree to have sex with him and another male friend at the same time, despite the fact that the victim's parents previously told him that she was only 14 years old. Based on these facts and applying the requisite deference to the legislative branch's authority to impose punishment based on the mores of society at the time of the crime, Widner's sentence was appropriate under OCGA § 16-6-4(d)(1) and was not so disproportionate as to shock the conscience.
Widner further argues that his sentence is unconstitutional because child molestation involving an act of sodomy receives greater punishment than child molestation involving intercourse. We have previously rejected this argument in Odett v. State, 273 Ga. 353(2), 541 S.E.2d 29 (2001), "[b]ecause the General Assembly could reasonably conclude that the psychological well-being of minors is more damaged by acts of sodomy than by acts of intercourse." Id. at 355, 541 S.E.2d 29. Widner also contends that, based on our decision in Powell v. State, 270 Ga. 327, 510 S.E.2d 18 (1998), his sentence of ten years violates his constitutional right of privacy. "Powell [, however,] did not hold that the *678 right to privacy protects sodomy generally. See Howard v. State, 272 Ga. 242, 243(1), 527 S.E.2d 194 (2000). [Widner's] sexual conduct with a minor is not protected by any privacy right. Phagan v. State, 268 Ga. 272, 273(1), 486 S.E.2d 876 (1997)." Odett, supra, 273 Ga. at 354(2), 541 S.E.2d 29.
2. We note that, effective July 1, 2006, the General Assembly has revised OCGA § 16-6-4. Pursuant to this revision, a person convicted of aggravated child molestation based upon an act of sodomy will be guilty of a misdemeanor, not a felony, when: (1) the victim is at least 13 but less than 16 years of age and (2) the convicted person is 18 years of age or younger and no more than four years older than the victim. Because this revision did not become effective until after Widner was sentenced, however, it cannot be applied to his case. "[I]t has long been the law in this State that, in general, a crime is to be construed and punished according to the provisions of the law existing at the time of its commission." Fleming v. State, 271 Ga. 587, 590, 523 S.E.2d 315 (1999).
[M]aking [a] lesser penalty applicable to offenses committed prior to the enactment of the legislation [creating the lesser penalty] is contrary to the judicial interpretation of the [laws] of this State under which the penalty for a criminal offense relates only to those offenses committed when and after such legislation becomes effective.
Barton v. State, 81 Ga.App. 810, 814(3), 60 S.E.2d 173 (1950).
3. Widner contends the trial court erred by giving improper instructions to the jury after deliberations had begun which coerced an otherwise hung jury into reaching a unanimous verdict. The record shows that, after being informed by the jury foreman that it could not reach a unanimous verdict on the aggravated child molestation counts of the indictment, the trial court instructed the jury that, if they could not reach a verdict, it "would have to declare a mistrial on those two counts and it would probably have to be retried . . . before another jury." The trial court further stated that "this jury is well qualified to resolve [the case] as another jury would later down the road."
Widner contends that these instructions violate our holding in Burchette v. State, 278 Ga. 1, 596 S.E.2d 162 (2004). In Burchette, we considered the following portion of the pattern Allen charge: "[This] case must be decided by some jury selected in the same manner this jury was selected and there is no reason to think a jury better qualified than you would ever be chosen." We concluded that this portion of the charge was inaccurate and "should no longer be given by trial courts." Id. The trial in the present case, however, occurred prior to the date of our opinion in Burchette, which is prospective in its application, and therefore does not control here. The question remains, however, "whether the instruction [given in this case] is so coercive as to cause a juror to `abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.'" Mayfield v. State, 276 Ga. 324, 331(2)(b), 578 S.E.2d 438 (2003). The instruction given here is somewhat similar to, but less coercive in nature than, the one given and approved of in Hyde v. State, 196 Ga. 475(8), 26 S.E.2d 744 (1943). There, as here, "the judge . . ., though firm in admonishing the importance of juries making verdicts, was careful not to intimate or express any opinion as to the propriety of any particular verdict, nor did he make any suggestion tending to coerce any particular group of jurors to agree with the others." Id. at 492, 26 S.E.2d 744. Accordingly, the instruction given in this case does not provide grounds for reversal.
4. Finally, Widner contends that the visiting judge who presided over his case had not been properly designated to do so pursuant to OCGA § 15-1-9.1(b)(1),[2] which allows a superior court to request such assistance. The designation, however, was issued in conformity with Uniform Superior Court Rule 18.2 and clearly indicates that the assistance of a visiting judge was required to handle the court's trial calendar for the week of September 8, 2003. Therefore, the visiting judge *679 properly presided over Widner's case by designation.
Judgment affirmed.
All the Justices concur.
NOTES
[1] Widner does not challenge his conviction for statutory rape.
[2] Subsection (f) of this Code section provides: "The written designation shall identify the court in need of assistance, the county where located, the time period covered, the specified case or cases for which assistance is sought if applicable, and the reason that assistance is needed." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335177/ | STATE OF NORTH CAROLINA
v.
MICHAEL VERNON MIZELLE.
No. COA07-970
Court of Appeals of North Carolina.
Filed April 1, 2008
This case not for publication
Attorney General Roy Cooper, by Associate Attorney General Phillip T. Reynolds, for the State.
William D. Spence for Defendant-Appellant.
McGEE, Judge.
Defendant appeals from judgments entered after a jury convicted him of two counts of felonious possession with intent to sell or deliver a controlled substance on or near a playground, and of two counts of felonious sale or delivery of a controlled substance on or near a playground. Defendant raises two issues on appeal: (1) that the trial court erred in denying his motion to dismiss all charges for insufficient evidence; and (2) that the trial court erred in failing to instruct the jury on the lesser-included offense for each charge. We find no error.
Detective Jonathan Kuhn (Detective Kuhn) and Officer Jerry Davis (Officer Davis), of the Washington Police Department, testified at trial regarding two separate drug transactions on 2 July 2004 and 17 July 2004. On both occasions, police used the same confidential informant to make undercover drug purchases in a neighborhood known for drug transactions. Detective Kuhn and Officer Davis used the same procedures on each date: they searched the informant's car to ensure it was free of drugs and money; they equipped the informant's car with audio and video surveillance; and they gave the informant five dollars and told him to drive around the area of Ninth and Seventh Streets to try to purchase marijuana. Detective Kuhn and Officer Davis followed the informant from a distance and maintained audio contact as he described where he was going.
On 2 July 2004, the informant reported over the audio feed that he was approaching a couple of men on the corner of Ninth and Gladden Streets. The informant purchased a bag of marijuana from Defendant for five dollars. On 17 July 2004, the informant reported that he was approaching the intersection of Ninth and Gladden Streets, and that he saw the same person from whom he had purchased drugs on 2 July 2004. The informant threw the money out the window of the car and Defendant threw a bag of marijuana into the informant's car. Each transaction was captured on videotape, and immediately after each transaction, Detective Kuhn and Officer Davis reviewed the tape and recognized Defendant, with whom they were already familiar. The videotapes were admitted into evidence and played for the jury. The informant's testimony regarding the two transactions corroborated the testimony of Detective Kuhn, and the informant identified Defendant in court as the man who sold him the marijuana on both occasions.
The State also presented evidence that a playground was located near the corner of Ninth and Gladden Streets where the transactions occurred. Detective Kuhn testified that the corner of Ninth and Gladden Streets is near the Washington Housing Authority (the Housing Authority) playground. He described the playground's equipment and noted that he had seen children playing there "all the time." Detective Kuhn explained how he measured the distance from the corner where the drug transactions occurred to the playground by using a "roll-a-tape", which uses a wheel to measure a distance as it is rolled along the ground. The distance measured was 177 feet.
Claude Hodges (Mr. Hodges), director of housing management for the Housing Authority, testified that the playground on Ninth and Gladden Streets is owned by the Housing Authority. When asked if the playground was limited so far as who could use it, Mr. Hodges testified, "[n]o, sir." He described the playground as having slides, monkey bars, and a platform, and stated that he had seen children playing there often.
Defendant did not present evidence at trial. At the close of the State's evidence, Defendant moved to dismiss all charges for insufficient evidence. The trial court denied the motion. When discussing the jury charge, Defendant requested that the trial court include an instruction on the lesser-included offense for each charge, each of which would exclude the element that the offense occurred within 300 feet of a playground. The trial court denied the request and did not instruct the jury on the lesser-included offenses. With regard to the transaction on 2 July 2004, the jury returned guilty verdicts on possession with intent to sell or deliver a controlled substance on or near a playground and on sale or delivery of a controlled substance on or near a playground. With regard to the transaction on 17 July 2004, the jury returned guilty verdicts on the same two charges. The trial court sentenced Defendant to two consecutive terms of forty-six to sixty-five months in prison.
Defendant argues the State failed to present sufficient evidence of the essential element of each charge that the transactions occurred on or near a playground. Defendant argues the trial court erred in denying his motion to dismiss all the charges because: (1) evidence was presented that the park was fenced in and owned by the local housing authority and thus was not a "public" playground as defined in N.C. Gen. Stat. § 90-95(e)(10); and (2) Detective Kuhn's testimony regarding the distance between where the transactions occurred and the playground, which was based on his own measurement, was improper "non-expert conjecture." We disagree with Defendant's characterization of the evidence presented.
When ruling on a motion to dismiss, the trial court must consider
all of the evidence, whether competent or incompetent, . . . in the light most favorable to the state, and the state is entitled to every reasonable inference therefrom. Contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. In considering a motion to dismiss, it is the duty of the [trial] court to ascertain whether there is substantial evidence of each essential element of the offense charged. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citations omitted).
At the time of the offense, certain drug offenses committed on or within 300 feet of a playground in a public park constituted class E felonies. N.C. Gen. Stat. § 90-95(e)(10) (2005). "Playground" for purposes of this section is defined as "any outdoor facility . . . intended for recreation open to the public, and with any portion thereof containing three or more separate apparatuses intended for the recreation of children." Id.
In this case, Mr. Hodges' testimony indicated that the park is open to anyone, even though it is owned by the Housing Authority. Both Detective Kuhn and Officer Davis testified that the transactions between the informant and Defendant occurred on the corner of Ninth and Gladden Streets. Detective Kuhn's testimony regarding his measurement using a "roll-a-tape" to determine the distance to the playground was properly admitted; similar testimony has been upheld previously by this Court. State v. Alston, 111 N.C. App. 416, 420, 432 S.E.2d 385, 387 (1993). No evidence was presented to contradict this testimony. We find that the State presented sufficient evidence that the transactions between the informant and Defendant took place within 300 feet of a public playground, and hold that the trial court did not err by denying Defendant's motion to dismiss. Defendant's assignments of error are overruled.
Defendant also assigns as error the trial court's refusal to charge the jury with the lesser-included offenses of possession with intent to sell or deliver a controlled substance and sale and delivery of a controlled substance. These lesser-included offenses differ from the offenses with which Defendant was charged in that they do not include the element that the offenses were committed on or within 300 feet of a public playground. Defendant contends that because the informant testified that he "thought" the transactions took place on Ninth and Gladden Streets, evidence of the element that the transactions occurred near a playground was equivocal. Thus, the trial court should have instructed the jury on the lesser-included offenses.
"[A] lesser offense should not be submitted to the jury if the evidence is sufficient to support a finding of all the elements of the greater offense, and there is no evidence to support a finding of the lesser offense." State v. Nelson, 341 N.C. 695, 697, 462 S.E.2d 225, 226 (1995). Also, the trial court does not commit error by refusing to instruct on a lesser-included offense "[w]here the State's evidence is clear and positive as to each element of the offense charged and there is no evidence showing the commission of a lesser included offense[.]" State v. Peacock, 313 N.C. 554, 558, 330 S.E.2d 190, 193 (1985).
In this case, Defendant's argument that the informant's testimony was ambiguous is inapposite. The informant testified that the transaction on 2 July 2004 took place "on Ninth and Gladden, I think. Yeah." Moreover, there is no evidence in the record that the transaction took place elsewhere. As stated above, the State presented sufficient evidence of each element of the offenses charged, including the element that the offenses occurred within 300 feet of a public playground. Since the evidence presented was clear and positive as to that element, and there is no evidence that the transactions took place elsewhere, the trial court did not err in refusing to instruct the jury on the lesser-included offenses. Therefore Defendant's argument fails and his assignments of error on this issue are overruled.
No error.
Judges STROUD and ARROWOOD concur.
Report per Rule 30(e). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1725018/ | 203 So. 2d 422 (1967)
Shirley KLEB, Plaintiff and Appellant,
v.
William Roy CHOATE, Defendant and Appellee.
No. 2112.
Court of Appeal of Louisiana, Third Circuit.
October 26, 1967.
*423 Marion W. Groner, New Iberia, for plaintiff-appellant.
Armentor & Resweber, by Minos H. Armentor, New Iberia, for defendant-appellee.
Before FRUGE, SAVOY and CULPEPPER, JJ.
CULPEPPER, Judge.
We do not reach a consideration of this appeal on its merits because we notice, ex proprio motu, that the record does not contain a final judgment read and signed by the district judge in open court. LSA-C.C.P. Articles 1911 and 2083; Forman, et al. v. May, 201 So. 2d 683 (La.App., 3rd Cir. 1967); Abramson v. Piazza, 198 So. 2d 565 (La.App., 3rd Cir.1967); Manuel v. Employers Fire Insurance Company, 136 So. 2d 282 (La.App., 3rd Cir. 1961). Under these authorities it is clear that no appeal lies in a case until after the signing of the judgment sought to be appealed. This appeal must therefore be dismissed as premature.
For the reasons assigned, this appeal is dismissed without prejudice. All costs of the appeal are assessed against the plaintiff appellant.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335521/ | 515 S.E.2d 853 (1999)
237 Ga. App. 549
AKERY
v.
The STATE.
No. A99A0111.
Court of Appeals of Georgia.
April 8, 1999.
*854 Smith, White, Sharma & Halpern, Atlanta, Jonathan Goldberg, for appellant.
Joseph J. Drolet, Solicitor, Ronda K. Currie, Assistant Solicitor, for appellee.
JOHNSON, Chief Judge.
This appeal involves the trial court's denial of a plea in bar based on double jeopardy grounds.
Charlie Akery was charged with driving while under the influence of alcohol, driving with an expired license, and making an improper turn. A jury was sworn and impaneled, and the state presented its case. After the state rested, Akery called his expert witness to the stand and began examining him. A few minutes before 5:00 p.m., while Akery was conducting his direct examination of the witness, the trial court announced that it would be in recess until the next morning. The trial court excused the jury (and presumably the witness) for the evening. Akery moved for a mistrial, complaining that the court had told him the trial would continue until 5:00 p.m., and that the witness had plans to travel abroad. The trial court replied that the court could not set its schedule according to the convenience of witnesses and that it was 4:55 p.m., which was "close enough [to 5:00]." The trial court implicitly denied the motion for mistrial and then adjourned for the day.
The expert witness did not appear for trial the next day. Akery did not know his whereabouts, although he surmised that the witness followed through on his plans to travel to Indonesia. The state complained about not being able to cross-examine the witness. In response, the trial court announced that it would instruct the jury to disregard the witness' testimony since he was unavailable for cross-examination. The state remarked that such a remedy would be inadequate because the expert witness' testimony raised questions about the reliability of breath tests. The state moved for a mistrial.
When asked to respond to the state's motion for mistrial, Akery replied that he was "not going to take a position on that" and that he only took issue with the court's decision to instruct the jury to disregard the witness' testimony. Akery did not reiterate his own motion for mistrial. The trial court again asked Akery for his position on whether a mistrial should be granted. Akery reiterated his argument regarding the court's proposed jury instruction, then remarked that he would not take any position on the motion for mistrial. The trial court stated that it thought the state was entitled to a mistrial. Akery still made no objection to the granting of a mistrial, saying only that he would agree to a continuance. The trial court granted the motion for mistrial, still without any objection from Akery. Akery filed a plea in bar based on grounds of double jeopardy, which the trial court denied.
Akery appeals, arguing that jeopardy attached when the jury was sworn and impaneled, and that the court did not consider other reasonable alternatives before granting a mistrial. Therefore, he argues, the trial court erred in rejecting his plea of double jeopardy. We disagree.
Once a jury is impaneled and sworn, jeopardy attaches and a defendant is entitled to be acquitted or convicted by that jury. Pleas v. State, 268 Ga. 889, 890(2), 495 S.E.2d 4 (1998). If a mistrial is declared without the defendant's consent or over his objection, he may be retried only if there was a manifest necessity for the mistrial. Id.; Cooke v. State, 230 Ga.App. 326, 327, 496 S.E.2d 337 (1998). If a defendant consents to a mistrial, he may not later use the mistrial as the basis of a plea of double jeopardy. Lyde v. State, 241 Ga. 111, 243 S.E.2d 64 (1978). Consent to the grant of a mistrial can be express or implied. State v. Johnson, 267 Ga. 305, 477 S.E.2d 579 (1996).
Akery did not object at trial to the state's motion for mistrial. Instead, he stated repeatedly that he had no position on the motion. Thus, he impliedly consented to the granting of a mistrial. See State v. Johnson, supra; see generally Cherry v. State, 230 Ga.App. 443, 445(3), 496 S.E.2d 764 (1998) (acquiescence to the ruling of a trial court can be caused by silence). Indeed, Akery made his own motion for mistrial the previous *855 afternoon when the trial court adjourned before he could finish examining the witness. A party cannot complain of a ruling to which he contributed by his own action, trial strategy, or conduct. See generally Holcomb v. State, 268 Ga. 100, 103(2), 485 S.E.2d 192 (1997). The trial court did not err in denying Akery's plea in bar on double jeopardy grounds. See generally Shuler v. State, 213 Ga.App. 790, 791(3), 446 S.E.2d 225 (1994).
Judgment affirmed.
ANDREWS and RUFFIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335526/ | 515 S.E.2d 841 (1999)
237 Ga. App. 847
JONES
v.
The STATE.
No. A99A0673.
Court of Appeals of Georgia.
April 6, 1999.
Reconsideration Denied April 30, 1999.
Certiorari Denied September 17, 1999.
*842 Clark & Towne, David E. Clark, Lawrenceville, for appellant.
Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.
*843 ELDRIDGE, Judge.
After a bench trial, the trial court found Timothy Jones guilty of possession of cocaine. On appeal, he challenges the denial of his motion to suppress. We affirm the trial court's ruling.
Gwinnett County Police Officer Mike Adams testified at the motion to suppress. Adams testified that he routinely conducts patrols of an area of the county that includes a townhouse complex on Beaver Springs Lane. "I go there every single day[ ], it is one of our target areas." This area is a high crime area and known for drug sales. "I've made several cases out of Beaver Springs Lane. I mean I personally have made drug cases there, standing in that spot."
On and around the incident date of July 2, 1997, Adams had received complaints about drugs being sold by several males standing out in front of an abandoned townhouse on Beaver Springs Lane. "[W]e get calls about Beaver Springs Lane from the residents daily." In addition, Adams had received an anonymous tip that a man named Benny Hill was selling drugs in front of the townhouse. Adams was familiar with Hill from "past experiences."
At just after midnight, Adams patrolled Beaver Springs Lane. Benny Hill was sitting on some railroad ties in front of the abandoned townhouse. Appellant Jones was sitting with him. The officer stopped his marked patrol vehicle to conduct a "field interview" with the men. As the officer approached, appellant Jones appeared to put something into his right shoe. During the field interview, Hill consented to a pat down search, during which drugs and drug paraphernalia were found on his person.
For the officer's safety, he also conducted a weapons pat down of Jones. Officer Adams testified that such weapons search is a matter of standard operating procedure in a situation like the one confronting him on that occasion, i.e., "[a]ny time I make contact with people in the middle of the night, I'm always afraid. And the area, this is the biggest drug area in my district. We've had shootings and stabbings and everything down there. Just the area and the time of day. I felt scared." During the pat down, the officer felt what he immediately knew to be a crack pipe in Jones' pocket. He asked Jones "is this a crack pipe?" Jones replied "yeah, are you going to take me in for that?" The officer arrested Jones for violation of a county ordinance, "Loitering for drug related purposes." During a search incident to arrest, Adams asked appellant Jones to remove his right shoe. A rock of crack cocaine fell from the shoe. Held:
When an appellate court reviews a trial court's order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court's judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment.
(Citations, punctuation, and emphasis omitted.) Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994).
1. Jones claims that Adams lacked "articulable suspicion" to conduct a Terry[1] stop of Jones. We disagree.
Under Terry, an officer may make an investigatory stop where the officer has a reasonable articulable suspicion of criminal activity. McClain v. State, 226 Ga.App. 714, 716(1), 487 S.E.2d 471 (1997). While the field interview with Jones cannot be considered a "Terry stop," since no evidence shows that Jones was either stopped, questioned, or detained against his will,[2] we find that a *844 reasonable articulable suspicion of criminal activity existed so as to prompt the field interview with Jones. Officer Adams had been given information that several males were selling drugs in front of the abandoned townhouse on Beaver Springs Lane. Adams had made drug arrests at "that very spot." Jones was one of two males standing in front of the abandoned townhouse at midnight. Drugs were found on Jones' companion, Hill. This evidence provided reasonable, articulable suspicion of criminal activity so as to prompt an inquiry of Jones.
2. Next, Jones contends that even if the officer had grounds for conducting a field interview with him, a pat down weapons search was not authorized, because the officer had no basis upon which to reasonably believe that he was in danger from Jones. We strongly disagree.
[A] law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. A policeman making a reasonable investigatory stop should not be denied the opportunity to protect himself from attack by a hostile suspect. The purpose of this limited search is to allow the officer to pursue his investigation without fear of violence.... The question is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety was in danger.
(Citations and punctuation omitted.) Thompson v. State, 230 Ga.App. 131, 132-133, 495 S.E.2d 607 (1998). To that end, we have repeatedly held that "[i]t is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed." (Citations and punctuation omitted.) State v. Jarrells, 207 Ga. App. 192, 193(4), 427 S.E.2d 568 (1993).[3] "Firearms are tools of the drug trade." (Citations and punctuation omitted.) Hayes v. State, 202 Ga.App. 204, 205, 414 S.E.2d 321 (1991); Condon v. State, 203 Ga.App. 163, 164, 416 S.E.2d 802 (1992); McGugan v. State, 215 Ga.App. 535, 451 S.E.2d 460 (1994).
Here, Officer Adams had been informed that several men were selling drugs in front of the abandoned townhouse on Beaver Springs Lane. Jones was one of two men standing in front of the abandoned townhouse at midnight. Drugs had been found on Jones' companion. It was not unreasonable for the officer to suspect that Jones, too, was selling drugs and may be armed, as are so many in the "drug trade." Hayes v. State, supra. In addition, the officer was questioning two men who were suspected drug dealers. Adams was well aware that there are frequent "shootings and stabbings and everything" at that precise location. Under the totality of the circumstances presented in this case, we find that "a reasonably prudent man in the circumstances would be warranted in the belief that his safety ... was in danger." Terry, supra at 27, 88 S.Ct. 1868. Accordingly, it was reasonable for the officer to perform a minimally intrusive weapons pat down of Jones.
3. Jones contends that "a crack pipe not shown to contain cocaine residue is not contraband and therefore not subject to the plain feel corollary to the plain view doctrine." Jones cites no authority for this proposition, and we reject it. Possession of drug related objects is against the law. OCGA § 16-13-32.2. In this case, the officer testified that he knew immediately that the hollow glass tube in Jones' pocket was a pipe for smoking crack cocaine, and Jones admitted that the tube was a "crack pipe." Possession of a "crack pipe" is possession of a drug related object in contravention of OCGA § 16-13-32.2. Thus, the seizure of the "crack pipe" was proper.
*845 4. Jones contends that the State had the burden of proving the county ordinance, "Loitering for drug related purposes," in order to establish probable cause to arrest Jones, and because the State failed to introduce the ordinance, the fruits of his arrest should have been suppressed.
We agree that the State failed to prove the ordinance.
However, the evidence of record is legally sufficient to establish that, prior to his arrest, appellant had committed the offense of [possession of drug related objects] in the arresting officer's presence in violation of [OCGA § 16-13-32.2]. Such [State law offense] would provide the officer with legitimate grounds lawfully to arrest appellant. OCGA § 17-4-20(a).
Williams v. State, 228 Ga.App. 698, 700, 492 S.E.2d 708 (1997). Again, we reject Jones' contention that, absent the presence of cocaine residue, "State law does not prohibit possession of a crack pipe, even late at night in a high crime area while sitting next to a known drug dealer." Jones again cites no law for this contention, and we are aware of none. While the presence of residue in a "crack pipe" may go to prove the element of "intent to use" under OCGA § 16-13-32.2, such residue is not, in itself, an essential element of the crime.
Judgment affirmed.
POPE, P.J., and SMITH, J., concur.
NOTES
[1] Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
[2] Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual [and] ask to examine the individual's identification, ... as long as the police do not convey a message that compliance with their requests is required."
(Citations and punctuation omitted.) Florida v. Bostick, 501 U.S. 429, 434-435, 111 S.Ct. 2382, 115 L.Ed.2d 389(1991).
[3] See also Montoya v. State, 232 Ga.App. 24, 25, 499 S.E.2d 680 (1998); Stewart v. State, 227 Ga.App. 659, 660-661, 490 S.E.2d 194 (1997); Pickens v. State, 225 Ga.App. 792, 794-795, 484 S.E.2d 731 (1997); McGugan v. State, 215 Ga. App. 535, 536, 451 S.E.2d 460 (1994); Wilson v. State, 210 Ga.App. 886, 887, 437 S.E.2d 867 (1993). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335598/ | 515 S.E.2d 480 (1999)
Carolyn Fryar BURNETT, Plaintiff,
v.
Warren H. WHEELER, Defendant.
No. COA98-868.
Court of Appeals of North Carolina.
May 18, 1999.
*481 Hatfield & Hatfield by Kathryn K. Hatfield, Greensboro, for plaintiff-appellee.
Thigpen, Blue, Stephens & Fellers by T. Byron Smith, Raleigh, for defendant-appellant.
EDMUNDS, Judge.
Plaintiff is the mother of a minor child fathered by defendant. In 1987, plaintiff filed this action against defendant for support of their minor child. In 1990, the trial court ordered defendant to pay $950 per month in support. By 1995, defendant had retired early from his work as a pilot for USAir and opened his own business (WRA, Inc.), which reduced his annual income. Later that year, defendant moved for a reduction in support, and in October 1995, the trial court reduced his child support payment to $525 per month. At the same time, the trial court ordered a hearing to determine arrearage owed by defendant. On 12 June 1996, that amount was set at $6,935. The June order also continued the matter for a review of child support consistent with North Carolina's Child Support Guidelines. In October 1996, the trial court found defendant had either earnings or an earning capacity of $77,000 per year and that WRA, Inc., a Sub-Chapter S company, showed a $52,000 loss, which passed through to defendant's personal tax return. Based on its findings, the trial court ordered defendant to pay child support in the amount of $900 per month. Defendant appealed that decision to this Court while continuing to pay only $525 per month.
On appeal, this Court held that "the trial court did not abuse its discretion in considering all of defendant's available sources of income in arriving at his gross income." Burnett v. Wheeler, 128 N.C.App. 174, 177, 493 S.E.2d 804, 806 (1997). We also stated,
*482 We are unable to determine if the trial court concluded that even with a $52,000 loss the defendant's income was $77,000, or if the trial court chose not to find the loss credible at all and therefore did not factor it into its computation.
... Because we are unable to determine what the trial court decided relative to the evidence of loss submitted by defendant, we remand for more specific findings indicating the trial court's treatment of the $52,000 loss and its computation of defendant's gross income.
Id. at 176, 493 S.E.2d at 806. On remand, the trial court entered an order finding that it did consider defendant's $52,000 business loss when calculating defendant's income and in setting child support. The trial court again set defendant's support obligation at $900 per month.
Within two weeks of this Court's order remanding the case, plaintiff moved for attorney's fees and requested the trial court to find defendant in contempt for failing to pay $900 per month in support. After the trial court entered its findings on remand, it ruled on plaintiff's motions, awarding attorney's fees to plaintiff and holding defendant in civil contempt for failing to make his full monthly child support payments. From these orders, defendant appeals.
Defendant first argues the trial court incorrectly computed his gross income under the Child Support Guidelines, contending the trial court erred when it considered WRA, Inc.'s business loss but failed to balance that loss against defendant's income. We disagree. This Court earlier concluded that the trial court properly considered all of defendant's available resources in determining his gross income. That decision is the law of the case for this appeal. See Sloan v. Miller Building Corp., 128 N.C.App. 37, 41, 493 S.E.2d 460, 463 (1997) (citing Tennessee-Carolina Transportation, Inc. v. Strick Corp., 286 N.C. 235, 210 S.E.2d 181 (1974)). We remanded solely for clarification of whether the trial court had considered defendant's $52,000 loss in its determination that defendant's annual earnings or earning capacity was $77,000. On remand, the trial court made the following finding of fact:
[T]he presiding Judge having reviewed his notes from the trial in this matter finds that he did take the $52,000 loss from WRA, Inc. into account when he found that Defendant's income from all sources was at least $77,000. Defendant has owned this business for twenty years and it has often shown a loss. Further, Defendant's credibility on the subject of this business is minimal. When making this finding the presiding Judge considered the Defendant's retirement accounts totaling $722,384, stocks valued at $60,000, land, a house, and a boat purchased in 1994 for $74,000.
This Court is deferential to determinations of child support by district court judges, who see the parties and hear the evidence first-hand. See Taylor v. Taylor, 128 N.C.App. 180, 182, 493 S.E.2d 819, 820 (1997) (citing Moore v. Moore, 35 N.C.App. 748, 751, 242 S.E.2d 642, 644 (1978)). An exercise of discretion by a trial judge in calculating the support guidelines will be reversed only if it is "`manifestly unsupported by reason.'" Kennedy v. Kennedy, 107 N.C.App. 695, 700, 421 S.E.2d 795, 798 (1992) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)). Although Judge Foster declined the opportunity dangled before him by this Court to find that evidence of defendant's loss lacked all credibility, he found the credibility "minimal." The above-quoted findings are reasonable and satisfy the requirements of our mandate on remand. They are particularly compelling when considered with the trial judge's finding in his order of 25 October 1996, that defendant, trained as an airline pilot, was not looking for work with freight carrier airlines even though such work was available. The trial court properly considered these facts under the "Potential Income" section of the Child Support Guidelines. That section permits a court to consider potential income when a defendant is "voluntarily unemployed or underemployed." Child Support Guidelines, 1999 Ann. R. N.C. 33; see Osborne v. Osborne, 129 N.C.App. 34, 497 S.E.2d 113 (1998). This assignment of error is overruled.
*483 Defendant next argues the trial court erred when it found him in contempt. We disagree. Defendant was ordered on 24 October 1995 to make monthly child support payments of $525. This order was modified on 25 October 1996 to require monthly support payments of $900. Defendant appealed the modified order on 11 November 1996 and continued to make payments of $525. On 16 December 1997, this Court remanded the case for further findings on the modified order. On 31 December 1997, plaintiff moved to have the trial court hold defendant in contempt for accrued arrearage under the modified order. On 8 April 1998, the trial court made findings of fact as required by remand, again ordered that defendant pay child support of $900 per month, and found defendant in civil contempt for violation of its earlier order. "One who wilfully violates an order does so at his peril." Joyner v. Joyner, 256 N.C. 588, 591, 124 S.E.2d 724, 727 (1962). "If the order from which an appeal is taken is upheld by the appellate court, wilful failure to comply with the order during pendency of the appeal is punishable by contempt on remand." Quick v. Quick, 305 N.C. 446, 461, 290 S.E.2d 653, 663 (1982) (citations omitted). Although Joyner and Quick were decided prior to the enactment of the current version of N.C. Gen.Stat. § 50-13.4(f)(9) (Cum.Supp.1998) (granting the trial court continuing jurisdiction to hear contempt proceedings even while an appeal is pending), the quoted holdings remain valid. Having never lost jurisdiction over this issue, the district court could hold a contempt hearing at any time.
The trial court found defendant's violation of its order willful. We agree.
Although the statutes governing civil contempt do not expressly require willful conduct, see N.C. Gen.Stat. §§ 5A-21 to 5A-25 (1986), case law has interpreted the statutes to require an element of willfulness. In the context of a failure to comply with a court order, the evidence must show that the person was guilty of "knowledge and stubborn resistence [sic]" in order to support a finding of willful disobedience.
Sharpe v. Nobles, 127 N.C.App. 705, 709, 493 S.E.2d 288, 290-91 (1997) (citations omitted). Defendant had full notice of the order requiring him to pay $900 per month. Had he paid that amount, he would have been entitled to a setoff for the overpayment if the order had been reversed. See Boyles v. Boyles, 70 N.C.App. 415, 419, 319 S.E.2d 923, 927 (1984). Instead, he made a calculated and deliberate decision to pay the lower amount. He did so at his peril. The trial court properly found that defendant was in willful contempt.
Finally, defendant contends the trial court erred in awarding attorney's fees to plaintiff's counsel. N.C. Gen.Stat. § 50-13.6 (1995) grants the court discretion to award fees to an interested party who acts in good faith but has insufficient means to defray the expense of the suit. The record in this case indicates defendant had substantial assets in the form of his retirement and investment accounts, his home, an aircraft, a boat, and a business. In contrast, plaintiff's income was $41,000 per year, with modest bank accounts totaling approximately $2,000. The court did not abuse its discretion in ordering attorney's fees.
The order of the trial court is affirmed.
Affirmed.
Chief Judge EAGLES and Judge JOHN concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335607/ | 515 S.E.2d 407 (1999)
237 Ga. App. 779
JAMAL et al.
v.
HUSSEIN et al.
No. A99A0732.
Court of Appeals of Georgia.
March 31, 1999.
Reconsideration Denied April 28, 1999.
Certiorari Denied September 10, 1999.
Certiorari Denied September 17, 1999.
*408 McLarty, Robinson & Van Voorhies, John E. Robinson, Decatur, for appellants.
Allen W. Bodiford, Martin C. Jones, Jonesboro, for appellees.
BEASLEY, Presiding Judge.
For the second time, Karim Jamal and Impulse International, Inc. appeal a grant of partial summary judgment on some of their claims arising out of pursuit of a convenience store business incorporated as Ark International, Inc. Jamal v. Pirani, 227 Ga.App. 713, 490 S.E.2d 140 (1997) ("Jamal I"), which set out the basic facts, affirmed partial summary judgment of Jamal's claims against Arif Hussein and Raees Pirani for breach of partnership agreement and usurpation of corporate opportunities. Before us for review is a later order granting another motion for partial summary judgment as to the remaining claims against the individual defendants and Ark, except for Jamal's claim against Ark for repayment of a loan: (1) Jamal's claim against all defendants for repayment of his initial loans; (2) Jamal's claim for a share of Ark's profit; (3) Jamal's claim of fraud/conversion against all defendants for diverting to *409 their own use his loan repayments and profit; (4) Jamal's and Impulse's claim for attorney fees; and (5) Jamal's and Impulse's claim for punitive damages.
Construing the facts important to this appeal in favor of appellants Jamal and Impulse shows that Jamal approached Pirani about purchasing J's One Stop, a convenience store and gas station, and Pirani proposed that Hussein be brought in to manage the business. Pirani negotiated a price with the owner while Jamal reserved the name Ark International, Inc. with the Secretary of State. Jamal then borrowed approximately $30,000 against his personal credit cards and deposited the money in an account set up in the name Ark International, Inc. Two or three days later the deal closed. Jamal made additional loans to Ark to fund the purchase of a second store on about November 22. Ark was incorporated December 29, 1993, as provided by OCGA § 14-2-203(a), when its articles of incorporation were filed.
1. Relying on OCGA § 14-2-204 and Echols v. Vienna Sausage Mfg. Co.,[1] Jamal contends that although he loaned the money to Ark and there were no personal guarantees, Hussein and Pirani are liable for Ark's pre-incorporation debts. OCGA § 14-2-204 states: "All persons purporting to act as or on behalf of a corporation, knowing there was no incorporation under this chapter, are jointly and severally liable for all liabilities created while so acting." The trial court ruled that OCGA § 14-2-204 does not apply where the claimant also knows the corporation does not exist at the time of the transaction, and that without personal guarantees and because the corporation replaced the partnership the individuals cannot be liable for the loan as a matter of law. OCGA § 14-2-204 indeed does not apply, but the remainder of the court's decision on this issue is problematic.
At the time of the loans there was no corporation and all three men knew it. Prior to incorporation the entity "`could do no corporate act, could receive no corporate property, could incur no corporate liability, and against it no corporate judgment could be legally rendered.' [Cit.]"[2] Rather, whether they understood it legally or not, the three men were in partnership pending incorporation of their business.
"A partnership is an association of two or more persons to carry on as co-owners a business for profit."[3] Hussein testified the agreement between the parties was that the three would be equal partners and the partnership would eventually take the form of a corporation. Pirani testified there was a verbal agreement that the three would "go into business together" and would form a corporation where each would own one-third of the stock "for profit, for loss, or for nothing." Jamal testified that in their initial discussion about the business "it was understood between all three of us that all three of us would be one-third partners."
Jamal's testimony later in his deposition, that at the time of the initial conversation he intended the company to be a corporation and not a partnership, does not control. Partnership is a mixed question of fact and law,[4] and Jamal's answer could be seen as a reference to the partners' agreement to incorporate eventually.
One term of the partners' oral partnership agreement provided they would soon form a corporation in which each partner would become an equal shareholder. Eventually, the "oral partnership terminated as a matter of law when Jamal, Hussein, and Pirani incorporated their business and began operating their venture under the corporate form."[5] Against this backdrop it is clear that although Jamal stated he loaned the money to "Ark," he could not have loaned the money to a corporation not yet formed. The loan was to the partnership, which makes OCGA § 14-2-204 inapplicable.
*410 The two fellow founders of Ark were not "purporting to act as or on behalf of" the yet-to-be-formed corporation relative to Jamal. Jamal knew Ark was not yet incorporated. He was not misled by Pirani and Hussein into believing they represented a corporation that did not exist; they all had equal knowledge of the state of affairs. In fact, it was Jamal who took the lead in reserving the name Ark International, Inc. and in establishing a bank account in that name. There is no indication Jamal believed Ark had been incorporated when he made the loans or that either Hussein or Pirani was responsible for incorporating Ark.
Distinguishable are cases addressing nonexistent corporations and application of either OCGA § 14-2-204 or the former law, i.e., former § 14-2-23 and the common law "promoter's liability."[6] In them the aggrieved party was a third party ignorant of the fact there was no corporation, not a partner with equal knowledge of that fact.[7]
The corporation Ark International, Inc. took over the business of running the convenience stores. The terms of the transfer are not clear from the record. For instance, the three individuals signed leases for the land occupied by the stores, and that has not changed. The leases apparently were never transferred to the corporation after it was formed. Such an arrangement is up to the parties; a corporation succeeding a partnership is not always liable for the debts of the partnership.[8] The decision in Jamal I is not inconsistent. Division 1 of Jamal I addressed whether the three continued to owe each other partnership duties after incorporation.[9] Here we address whether a certain liability remained with the partnership.
The issue now is whether the partnership agreement provided that the corporation would assume liability for repayment of the loans, or similarly, whether the partnership transferred that liability to the corporation when the corporation was formed. If not, then the partnership is liable for repayment of the loan.
In Jones v. J.S.H. Co.[10] a dispute arose among three people who had been partners in an enterprise which was subsequently incorporated. Long after incorporation, two of the three original shareholders and the corporation sued the third original shareholder, who operated the business, and his wife for an accounting and money judgment arising out of various transactions for which no accounting had been made. The defendants sought to establish certain credits which arose out of the earlier partnership, such as a claim for commissions on pre-incorporation sales.[11] The issue was whether the corporation assumed all debts of the prior partnership. The Supreme Court reversed the auditor's denial of these credits, reasoning: "in the absence of any understanding to the contrary, it would be presumed that such a new and solvent organization [(i.e., the corporation)] *411 would be answerable for such claims as the previous partnership might have owed to its own members."[12]
Here there is evidence of an understanding to the contrary. First, the record contains scant details of any agreement regarding transfer of assets and liabilities to the corporation. Pirani was asked what the arrangement was regarding the loan, to which he replied, "we were supposed to pay [Jamal] back." But the fact that the leases were never transferred is some evidence that not all assets and liabilities moved over the bridge. Given the treatment of the leases and the conflicting testimony of whether the partners were to be liable for repayment of Jamal's loans, an issue of fact remains for trial. The jury must decide whether the parties' agreement included that the liability associated with the loan was to be transferred to the corporation or remain with the partnership.
Carnes v. McNeal[13] is not on point because the plaintiff made the contribution after incorporation. He sought return of money contributed to a business commenced as a partnership and later incorporated. The court held the partnership terminated upon incorporation and the plaintiff had no claim under the partnership agreement for return of the money.
2. Jamal claims the individuals should also be liable for repayment of the loans because after incorporation Hussein and Pirani so commingled Ark's assets with their own or another corporation's that Jamal should be allowed to pierce Ark's corporate veil. Division 1 does not moot this issue because Ark may have assumed liability for the loans.
The trial court ruled that Jamal failed to make specific citation to the record to show facts sufficient to send this issue to the jury. Although Jamal cited no facts on piercing the corporate veil in the subsection of his brief in response to the motion, he cited testimony in his statement of facts and in his response to defendants' statement of material issues not in dispute. That evidence, together with the deposition of Ark's accountant, constitutes a sufficient base to create an issue of fact with regard to the issue.
Courts permit "piercing the corporate veil" in situations where the parties involved have themselves disregarded the separateness of legal entities by a commingling and confusion of properties, records, control, etc. Under such circumstances, the court may disregard the corporate entity.[14]
The record reveals no shareholders or directors meetings and shows that no stock was issued. Hussein testified that there may have been "transfers" of merchandise between stores owned by Ark and other stores owned by Pirani. Hussein and Pirani received significant cash from the corporation, but there is no record of these payments.[15] Ark's accountant admitted his records do not indicate how much money was distributed by Ark to Hussein or Pirani other than payroll. Nor do the records show cash transactions. The accountant testified that unless a payment was made by check he did not account for cash disbursements. The accountant has not been able to file corporate tax returns for Ark because Hussein and Pirani have given him insufficient information. The accounting records are silent as to how much money was loaned to Jamal.
This evidence leaves unresolved whether Hussein and Pirani failed to accurately account for cash disbursements from Ark, how much cash the two have taken and what rightfully belongs to Ark. All in all, defendants have not foreclosed a piercing of the corporate veil that would allow recovery of loan payments directly from Hussein and Pirani.[16]
*412 On the one hand, we are mindful that great caution should be exercised by the court in disregarding the corporate entity. On the other, it is axiomatic that when litigated, the issue of "piercing the corporate veil" is for the jury unless there is no evidence sufficient to justify disregarding the corporate form.[17]
Summary judgment on this issue was error.
3. Jamal asserts the court applied the wrong standard when eliminating his claim that Hussein and Pirani converted his loan repayments or profit distribution to their own use. He also urges error in failing to recognize self-contradictory testimony in Hussein's and Pirani's depositions which create issues of fact on this claim. Summary judgment was not proper.
Any distinct act of dominion wrongfully asserted over another's property in denial of his right, or inconsistent with it, is a conversion. It is unnecessary to show that the defendant applied it to his own use, if he exercised dominion over it in defiance of the owner's right, or in a manner inconsistent with it. It is in law a conversion whether it be for his own or any other's use. [Cit.][18]
A corporate officer may be held liable for torts he personally committed or specifically directed be done.[19]
The same evidence which leaves open a piercing of the corporate veil, together with the unresolved question of who, if anyone, owes Jamal for his loans, creates an issue of fact as to conversion.
If the partnership is liable for repayment of the loans, or if Ark's corporate veil can be pierced, then the individuals may be liable for the loans or for converting Jamal's loan repayments. If Ark is liable for the loans and the veil is not pierced, then Ark may be liable on a claim of breach of contract. Then again, even if Ark is responsible for repayment of the loans, there may not have been sufficient operating revenue to repay the loans. There is no evidence of the loan repayment terms. Payments may not be due. Other creditors may have had superior positions to Jamal. With regard to profit distributions, there is no indication how profits were to be determined and when profits were to be distributed. If the conclusion is that Ark did not have a present obligation to repay the loans or distribute profit, then any conversion claim belongs to Ark and not to Jamal.
We also reverse the grant of summary judgment on Jamal's claims for punitive damages and attorney fees, which was granted solely for the reason that the above claims had been eliminated.
4. Finally, Impulse contends the trial court improperly ruled that it failed to preserve its claim of breach of contract against Ark. In the section of the pre-trial order in which plaintiffs listed the issues to be decided by the jury there is no mention of Impulse's claim. The trial court did not abuse its discretion in eliminating the claim despite references to such a claim elsewhere in the pre-trial order.
5. This decision is based on the record submitted to us and because we rule in appellants' favor, their motion to supplement the record on appeal is moot.
*413 Judgment affirmed in part and reversed in part.
BLACKBURN and BARNES, JJ., concur.
NOTES
[1] 162 Ga.App. 158, 290 S.E.2d 484 (1982).
[2] Michael Bros. Co. v. Davidson & Coleman, 3 Ga.App. 752, 754, 60 S.E. 362 (1908).
[3] OCGA § 14-8-6.
[4] Pope v. Triangle Chem. Co., 157 Ga.App. 386, 388(3)(a), 277 S.E.2d 758 (1981).
[5] Jamal v. Pirani, supra, 227 Ga.App. at 714(1), 490 S.E.2d 140.
[6] See, Weir v. Kirby Constr. Co., 213 Ga.App. 832, 834(1), 446 S.E.2d 186 (1994) (former § 14-2-23 and the common law "promoter's liability" were in essence the same theory of liability). See also Wells v. Fay & Egan Co., 143 Ga. 732, hn. 1, 85 S.E. 873 (1915) (promoter's liability means that a person acting on behalf of a corporation not yet in existence will be personally liable on his contracts, "unless the other party agreed to look to some other person or fund for payment").
[7] See, e.g., Zuberi v. Gimbert, 230 Ga.App. 471, 473(1), 496 S.E.2d 741 (1998) (Gimberts believed they were dealing with a corporation); Weir v. Kirby Constr. Co., supra (plaintiff contracted with corporation); Video Power v. First Capital Income Properties, 188 Ga.App. 691, 692, 373 S.E.2d 855 (1988) (defendant signed lease in his representative capacity as president of nonexistent corporation); Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga.App. 790, 795(3), 359 S.E.2d 920 (1987) (party enforcing contract thought it was dealing solely with corporation); Don Swann Sales Corp. v. Echols, 160 Ga.App. 539, 541, 287 S.E.2d 577 (1981) (parties thought the corporation had been registered); Wiggins v. Darrah, 135 Ga.App. 509, 218 S.E.2d 106 (1975) (complainant entered into contract with what appeared to be a corporation).
[8] See Dickson-Carroll Co. v. U.S. Fidelity &c. Co., 58 Ga.App. 540(2), 199 S.E. 322 (1938) ("[w]here a partnership is succeeded by a corporation, the corporation is not liable for the debts of the partnership not assumed in a manner recognized by law").
[9] Jamal v. Pirani, supra, 227 Ga.App. at 714(1), 490 S.E.2d 140.
[10] 199 Ga. 755, 35 S.E.2d 288 (1945).
[11] Id. at 761, 770(2), 35 S.E.2d 288.
[12] Id. at 770(2), 35 S.E.2d 288.
[13] 224 Ga.App. 88, 479 S.E.2d 474 (1996).
[14] Casey v. Carrollton Ford Co., 152 Ga.App. 105, 106, 262 S.E.2d 255 (1979).
[15] Jamal claims that Pirani admitted commingling Ark's assets with other businesses. But the cited testimony shows only possible commingling between the two stores owned by Ark, a non-issue in this case.
[16] See Pope v. Professional Funding Corp., 221 Ga.App. 552, 553(1), 472 S.E.2d 116 (1996) (president admitted he, another officer and shareholder transferred funds among their businesses without regard to corporate formalities); Unified Svcs. v. Home Ins. Co., 218 Ga.App. 85, 90(5), 460 S.E.2d 545 (1995) (defendants transferred assets, without compensation, to different corporation; wrote off debts to benefit themselves; withdrew money from company at will in lieu of salary; and borrowed money from company without paying interest); McLean v. Continental Wingate Co., 212 Ga.App. 356, 359-360(2), 442 S.E.2d 276 (1994) (defendant used corporate assets to purchase personal property, including realty, for himself and for family members, which did not benefit the corporation); Abbott Foods of Ga. v. Elberton Poultry Co., 173 Ga.App. 672, 673(1), 327 S.E.2d 751 (1985) (person who was president, principal shareholder and only employee took loans and salary advances without board approval and engaged in other self-serving transactions).
[17] (Citations and punctuation omitted.) J-Mart Jewelry Outlets v. Standard Design, 218 Ga.App. 459, 460(1), 462 S.E.2d 406 (1995).
[18] (Punctuation omitted.) Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 261(1), 356 S.E.2d 877 (1987).
[19] Smith v. Hawks, 182 Ga.App. 379, 385, 355 S.E.2d 669 (1987). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335688/ | 210 S.E.2d 93 (1974)
24 N.C. App. 54
STATE of North Carolina
v.
Vaughn L. BAGNARD.
No. 743SC708.
Court of Appeals of North Carolina.
December 4, 1974.
Certiorari Denied February 4, 1975.
*95 Atty. Gen. James H. Carson, Jr., by Asst. Atty. Gen. T. Buie Costen, Raleigh, for the State.
Charles K. McCotter, Jr., New Bern, for defendant appellant.
Certiorari Denied by Supreme Court February 4, 1975.
MARTIN, Judge.
For his first assignment of error, defendant contends the trial court erred in overruling defendant's motion to suppress evidence obtained by Trooper DeBose's warrantless search of the car. In support of his contention defendant argues that (1) he was not under arrest when Trooper DeBose initially opened the car door and saw the marijuana and such action by Trooper DeBose constituted an unlawful search and (2) even if he was under arrest at the time the marijuana was found, the arrest was unlawful and any search incident thereto was unlawful. Since we hold that the search was not unreasonable, regardless of whether defendant was under lawful arrest or not, we do not reach the issue of defendant's arrest.
"When an officer's presence at the scene is lawful (and at least if he did not anticipate finding such evidence), he may, without a warrant, seize evidence which is in plain sight and which he reasonably believes to be connected with the commission of a crime, even though the `incident to arrest' doctrine would not apply; and such evidence is admissible." 1 Stansbury, N. C. Evidence (Brandis' Revision), § 121 a, p. 372. After voir dire examination, the trial court made findings of fact which can be summarized in part as follows: Trooper Spainhour was investigating a hit and run offense and had linked evidence from the scene to the Ford which defendant was later found driving. Spainhour checked the license tag on the Ford and determined that it belonged to a later model Chevrolet. Spainhour gave this information to Trooper DeBose and asked him to watch the Ford and stop the vehicle for purposes of Spainhour's investigation. DeBose did stop the vehicle and asked defendant Bagnard for the registration card. Being unable to produce it, DeBose placed Bagnard under arrest for improper registration and opened the driver's door to obtain the serial number of the car for his official report. As DeBose looked for the serial number on the door jamb, he saw a bag in plain view and within fifteen inches of where the serial number was located. DeBose could see marijuana through the holes in the bag. He arrested defendant for possession of marijuana and thereafter searched the rest of the car. The findings of fact were amply supported by competent evidence on voir dire, and, therefore, they are conclusive.
Since it is obvious and uncontested that Trooper DeBose inadvertently discovered the bag of marijuana in plain sight and reasonably believed that it was marijuana, then the only question remaining is whether his presence next to the front seat of the car while looking for the serial number of the car was lawful.
"Inspection of a car's identification number differs from a search of a vehicle and seizure of its contents in one important aspect. The occupants of the car cannot harbor an expectation of privacy concerning the identification of the vehicle. The state requires manufacturers to identify vehicles by affixing identification numbers which are also recorded in registries where the police and any interested person may inspect them. Since identification numbers are, at the least, quasi-public information, a search of that part of the car displaying the number is but a minimal invasion of a person's privacy. A police officer, therefore, should be freer to inspect the number without a warrant than he is to search a car for purely private property." United States v. Powers (CA 4 N.C.) 439 F.2d 373, cert. denied, 402 U.S. 1011, 91 S.Ct. 2198, 29 L.Ed.2d 434 (1971).
*96 The Court in Powers holds that an inspection for the identification number of a car constitutes a search under the Fourth Amendment and then discusses the proper standard by which to test the reasonableness of the search. It adopts the objective standard contained in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) where the Court poses the question:
"[W]ould the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate?"
Such a standard focuses on the facts as they appear to the officer and as they would be acted upon by a man of reasonable caution. "This standard can be met . . . when the officer has a legitimate ground for checking the identification number." United States v. Powers, supra. We believe Powers to be a sound approach to the immediate issue.
After voir dire examination, the trial court found that the vehicle driven by defendant had been previously investigated by Trooper Spainhour in connection with a hit and run offense in another county. The investigation indicated that the license plate on the car was not registered to that car. Trooper Spainhour gave this information to Trooper DeBose and asked that he stop the vehicle. Under these circumstances, Trooper DeBose had a legitimate reason for checking the car's serial number on the door jamb, and his action was clearly appropriate. While lawfully present checking the serial number, Trooper DeBose discovered the marijuana in plain sight on the floor of the car. Therefore, this evidence was admissible and not the result of an unreasonable search, and the trial court properly overruled defendant's motion to suppress it.
Defendant also contends it was error to allow Trooper DeBose's opinion testimony that the bags found in the car contained marijuana. Assuming, without deciding, that his testimony was inadmissible, we fail to see how defendant was prejudiced thereby since a lab report was introduced into evidence which identified the substance as marijuana, and nowhere in the record is this conclusion questioned.
The State introduced into evidence defendant's "dog tags" and cigarette papers found in the vehicle, and defendant contends these were inadmissible because they are not contraband and, thus, not subject to seizure. We disagree. In Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), the Supreme Court rejected the old distinction between "mere evidence" and contraband where there was a warrantless search subsequent to a "hot pursuit". Defendant cites Marron v. United States, 275 U.S. 192, 72 L.Ed. 231, 48 S.Ct. 74 (1927). Marron involves a search pursuant to a search warrant, and while it may still have some validity where items amounting to "mere evidence" are seized under a search warrant naming other items, it clearly does not apply to the present case. See State v. Zimmerman, N.C. Court of Appeals, 209 S.E.2d 350 (1974).
Next, defendant argues it was error to deny defendant's motion for nonsuit on the charge of unlawful possession of marijuana with intent to distribute because there was no evidence that defendant knew of the presence of marijuana.
"An accused's possession of narcotics may be actual or constructive. He has possession of the contraband material within the meaning of the law when he has both the power and intent to control its disposition or use. . . . [T]he State may overcome a motion to dismiss or motion for judgment as of nonsuit by presenting evidence which places the accused `within such close juxtaposition to the narcotic drugs as to justify the jury in concluding that the same was in his possession.' [Citations]." State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972).
*97 In the instant case, defendant had been given the keys and the custody of the vehicle by its owner. There were 443.1 grams of marijuana found in the car while defendant was the driver. One of the two bags of marijuana was located just inside the car's door on the driver's side, unobstructed by the seat. Viewing the evidence in a light most favorable to the State, the jury could find that defendant had both the power and the intent to control its disposition or use so as to have it in his constructive possession. The trial court correctly overruled defendant's motion for nonsuit.
Finally, defendant argues it was error for the trial court to allow an inconsistent jury verdict which found a codefendant, Michael Huckaby, guilty of possession of marijuana while the same jury found defendant guilty of possession with intent to distribute. Defendant has not shown us in the record where he made a motion based on the foregoing grounds. Nevertheless, most modern authorities agree that criminal verdicts as between two or more defendants tried together need not demonstrate rational consistency. State v. Stitt, 18 N.C.App. 217, 196 S.E.2d 532 (1973). Thus, assuming that the jury verdict was inconsistent, defendant's argument still lacks merit.
We have reviewed defendant's other assignments of error, and we hold that they are also without merit.
No error.
BRITT and HEDRICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335689/ | 210 S.E.2d 509 (1975)
24 N.C. App. 362
Kenneth D. HEPLER and Judy D. Hepler
v.
Brookie I. BURNHAM and Walter Van Burnham, III.
No. 7415SC644.
Court of Appeals of North Carolina.
January 2, 1975.
*511 R. Chase Raiford, Burlington, for petitioner-appellant.
Ross, Wood & Dodge by B. F. Wood, Graham, for respondents-appellee.
BROCK, Chief Judge.
The sole assignment of error challenges the dismissal of the petition and the enjoining of petitioner from selling the property in question. In support of this assignment of error, petitioner advances two arguments. First, petitioner argues that it was impossible for him to waive his right to partition as a tenant in common in the separation agreement because he was a tenant by the entirety at the time and did not have a right to partition. Second, petitioner argues that the deed of separation, in any event, cannot be interpreted to contain such a waiver.
Chapter 46 of the North Carolina General Statutes grants certain partition rights to cotenants of property. These rights, however, are not unqualified. In Chadwick, v. Blades, 210 N.C. 609, 188 S.E. 198 (1936), the North Carolina Supreme Court stated:
"Statutes declaring that joint tenants or tenants in common shall have a right to *512 partition were never intended to interfere with contract between such tenants modifying or limiting this otherwise incidental right, or to render it incompetent for parties to make such contracts, either at the time of the creation of the tenancy or afterwards." 210 N.C. at 612, 188 S.E. at 200.
Thus, there is no question that in the case at bar petitioner could validly contract away his right to partition in a deed of separation. "The ordinary rules governing the interpretation of contracts apply to separation agreements and the courts are without power to modify them." Church v. Hancock, 261 N.C. 764, 765, 136 S.E.2d 81, 82.
Petitioner asserts that his first argument, that it was impossible for him to waive a right not in existence at the time of the separation agreement, should control the disposition of this appeal. While we acknowledge that one of the essentials of waiver is the existence at the time of a known right, Fetner v. Granite Works, 251 N.C. 296, 111 S.E.2d 324, we believe that the separation agreement served as an agreement to waive a right to partition, a right which should have reasonably been foreseen would vest upon entry of a decree of absolute divorce. See 92 C.J.S. Waiver (1955). For this reason we find no merit in petitioner's first argument.
Petitioner contends that the case of Kayann Properties, Inc. v. Cox, 268 N.C. 14, 149 S.E.2d 553, is supportive of both his position and his second argument. In that case, a husband, Truitt Cox, had conveyed property to his wife, Merle Cox, before their marriage. After their marriage he sued his wife to have title vested in them as tenants by the entirety. During the pendency of this action, the parties entered into a deed of separation wherein Merle Cox agreed to convey to Truitt Cox a one-half undivided interest in the property so that title would be vested in them as tenants in common. Truitt Cox also agreed to make mortgage payments on the property and to give Merle Cox sole possession and occupancy of the premises during her lifetime. At the time of the execution of the deed of separation, and as part of the same transaction, the property was conveyed to a third party who subsequently reconveyed it to Truitt and Merle Cox as tenants in common. Truitt Cox then obtained a divorce judgment which provided that he was to make all payments set forth in the separation agreement. Truitt Cox later conveyed one-quarter undivided interest to one Stanley, who instituted an action to quiet title against Merle Cox. The court found that Merle Cox had sole possession and occupancy during her lifetime. The "consent part" of the divorce judgment created an enforceable lien upon the property purchased by Stanley. Stanley v. Cox, 253 N.C. 620, 117 S.E.2d 826. Truitt Cox later conveyed his remaining one-quarter undivided interest to petitioner Kayann Properties, Inc., subject to the separation agreement. Kayann filed a petition for partition by sale. The North Carolina Supreme Court found that the separation agreement did not expressly contain a stipulation that Truitt Cox would not partition. But the Court did find that neither party to the agreement had considered the possibility of partition during Merle Cox's life. Her husband's goal was an absolute divorce. After considering the arguments and the circumstances of the case, the Court held:
"It is apparent that the partition which petitioner seeks would be in contravention of the separation agreement and would defeat its purposes. An agreement against partition will therefore be implied. (Citations omitted.) `[I]f the intention is sufficiently manifest from the language used, the court will hold that the parties may effectively bind themselves not to partition, even without express use of the word.' Michalski v. Michalski, 50 N.J.Super. 454, 462, 142 A.2d 645, 650." 268 N.C. at 22, 149 S.E.2d at 559.
We do not find Kayann to be at all supportive of petitioner's position in the case at *513 bar. Kayann is a well-reasoned case which supports the respondent. See also Annot., 37 A.L.R.3d 962 (1971).
The deed of separation executed between respondent and petitioner, in our opinion, effectively modifies and limits petitioner's right to partition the property. Paragraphs 3, 4(c), and 5 of the agreement, set forth above, if not expressly, at least impliedly modify and limit this right. By its provisions petitioner has agreed to support Robert Brian Hepler, to continue mortgage payments, to permit respondent to reside in the house, and, most importantly, to lease the premises to her "free of any rent, for her continued use of (the) premises as her home, during the existence of the agreement." Because the agreement terminates upon Robert Brian Hepler's emancipation, we believe that the contract is reasonable in its duration and not void as an unreasonable restraint on alienation. "A contract among cotenants that neither they nor their heirs or assigns will ever institute proceedings for partition has been held void as an unreasonable restraint on the use and enjoyment of the land." Chadwick v. Blades, 210 N.C. 609, 612, 188 S.E. 198, 200 (1936).
Petitioner urges us to find the agreement "inequitable and against the reasoning of prudent men to interpret that a husband would enter a contract with his separated wife and upon her remarriage intend to allow her new husband to live on the premises free of rent until the minor child reached his majority without clearly setting out such a provision in the contract."
In our opinion the separation agreement does not impose an inequitable burden on petitioner. The agreement provides that respondent is to live rent free on the premises for the duration of the agreement. Clearly the petitioner should have contemplated the respondent's remarriage. The fact that respondent has now remarried and is living with her husband on the premises does not affect the petitioner's duty to provide her the premises rent free. Had petitioner been concerned with respondent's remarriage, he could have provided for it in the agreement. The burden on petitioner since respondent's remarriage is no greater than it was originally.
"In this State partition proceedings have been consistently held to be equitable in nature, and the court has jurisdiction to adjust all equities in respect to (sic) the property." Kayann Properties, Inc., v. Cox, supra, 268 N.C. at 20, 149 S.E.2d at 557. Petitioner cites 31 C.J.S. Estoppel § 63 (1964) for the proposition that "[t]he remedy of estoppel has for its purpose the promotion of the ends of justice, and the doctrine is grounded on equity and good conscience." While we agree with that statement, we note that partition is also subject to the principle that he who seeks equity must do equity. "Equity will not award partition at the suit of one in violation of his own agreement, or in violation of a condition or restriction imposed on the estate by one through whom he claims." Chadwick v. Blades, 210 N.C. 609, 612, 188 S.E. 198, 200 (1936).
Affirmed.
MORRIS and MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335702/ | 233 Ga. 53 (1974)
210 S.E.2d 9
WHITWORTH
v.
WHITWORTH et al.
29049.
Supreme Court of Georgia.
Argued September 9, 1974.
Decided October 17, 1974.
*58 Harper & Matthews, Robert D. Matthews, Eugene W. Harper. Jr., for appellant.
Andrew J. Hill, Jr., Edward E. Strain, III, for appellees.
HALL, Justice.
This is an appeal with a certificate from the denial of a summary judgment motion.
In 1952 Louise P. McFarland conveyed by warranty deed a 91.3-acre tract of land in Franklin County to Carl H. Whitworth ("appellant"), who was two years old at the time of the conveyance. The purchase price was supplied by appellant's father Paul H. Whitworth ("decedent"), who occupied the property until his death intestate in 1972 and who retained possession of the deed from the time of its execution until his death. The deed was duly recorded in 1972. In July, 1973, appellant gave the Citizens & Southern Bank of Hart County, Georgia, a security deed to the property. The administrators of decedent's estate, appellees herein, brought this action against appellant and the bank, seeking the following relief: cancellation of the warranty deed from Louise P. McFarland to appellant, an injunction against the bank's making further advances to appellant pending the outcome of the present litigation, an order requiring appellant to pay the balance of his indebtedness to the bank and to cancel the security deed, and an order quieting title to the property in appellees.
The complaint alleged that it was decedent's *54 intention upon purchasing the property that appellant would hold it in trust for the benefit of decedent and that the property could not be sold until appellant reached the age of majority and then only with decedent's consent. An amendment to the complaint alleged that decedent held the beneficial interest in the property by way of an implied trust. Upon agreement of all the parties, the bank's motion for summary judgment was granted. The overruling of appellant's motion for summary judgment is the subject of this appeal.
1. The appellees assert nondelivery of the McFarland warranty deed from the decedent to the appellant as a ground for cancellation. However, it is delivery from the grantor to the named grantee which is essential to the validity of the conveyance. The appellees' complaint shows that the deed was executed and duly recorded. A presumption arises, therefore, that the deed was delivered. Dollar v. Thompson, 212 Ga. 831 (96 SE2d 493); Henderson v. Kemp, 155 Ga. 489 (117 SE 244). The complaint further avers that decedent had possession of the deed from the time of its execution until his death. Delivery to and possession of the deed by the parent is evidence of delivery to the infant. Montgomery v. Reeves, 167 Ga. 623 (2) (146 SE 311); Watson v. Meyers, 73 Ga. 138. "Non-delivery shall not be raised against minors." Harrison v. Hester, 160 Ga. 865, 870 (129 SE 528). Finally, the law will presume acceptance where the donation is of a substantial benefit, and a parent may accept for an infant. Code § 48-102; see also Montgomery v. Reeves, supra.
In conjunction with their prayer for cancellation of the warranty deed, the appellees asked that title be quieted in themselves. They have not, however, shown any source from which their own title would derive. In response to appellant's interrogatories, they showed that they knew of no record, writing or document, other than the deed from Louise P. McFarland to the appellant, which would establish title in the decedent. Nor can the appellees establish title by prescription. Their complaint alleges that the appellant was two years old in 1952. His legal infancy would not have terminated under Code Ann. § 74-104, as it stood prior to amendment in 1972, *55 until he reached the age of 21 sometime in 1970 or 1971; and prescription could not have commenced until that time. Code § 85-411. There being no title in the appellees, prescriptive or otherwise, they cannot seek cancellation of the warranty deed to the appellant as a cloud upon title. Thomas v. Stedham, 208 Ga. 603 (2) (68 SE2d 560); Crawford v. Crawford, 143 Ga. 310 (85 SE 192).
2. The only remaining theory of recovery which is ascertainable from the allegations of the appellees' amended complaint is that of an implied purchase-money resulting trust whereby the appellant held legal title to the property as trustee for the benefit of the decedent. The appellant asserts that he holds both legal and equitable title by way of a completed gift.
(a) After the original pleadings had been filed, the appellant submitted the following interrogatory to the appellees: "Did Paul H. Whitworth [decedent] intend said deed to be a trust and Defendant [appellant] to be trustee?" The appellees' reply was "No." However, the appellees later filed an amendment to their complaint which read: "Under the facts alleged in the petition, Paul H. Whitworth had and claims an implied trust in and to the real estate described in the petition." The appellant contends that the appellees are estopped to file such an amendment because it is inconsistent with their response to appellant's interrogatory in which, according to the appellant, they negatived any reliance on a trust theory of recovery.
The amendment did no more than make explicit what was implicit in the appellees' original complaint in which they alleged that it was the decedent's intention that the appellant would hold the property in trust for the decedent's benefit. The original allegation was sufficiently broad to admit of implied trust as a theory of recovery under the practice of notice pleading contemplated by Code Ann. § 81A-108 (f). The only effect, if any, of appellees' negative response to appellant's interrogatory was to weaken their ability to meet their evidentiary burden on this issue.
(b) Appellant further contends that the appellees are barred from pursuing an implied trust theory by the ten-year statute of limitation contained in Code § 3-709, *56 pertaining to actions against trustees, and by the seven-year statute of limitation derived by analogy to Code § 85-407 pertaining to prescriptive title and applied to actions to enforce implied trusts in such cases as Richards v. Richards, 209 Ga. 839, 843 (76 SE2d 492), and Stonecypher v. Coleman, 161 Ga. 403, 404 (131 SE 75).
"It is well settled that neither laches nor the statute of limitations will run against one in peaceable possession of property under a claim of ownership for delay in resorting to a court of equity to establish his rights." Richards v. Richards, supra, p. 843; see also Lominick v. Lominick, 213 Ga. 53 (96 SE2d 587). Moreover, the statute of limitation does not begin to run against a party asserting title by way of an implied trust until "there has been notice of an adverse claim by the trustee or such change of circumstances as is calculated to put a reasonably prudent person on notice that the trust is no longer recognized as subsisting, or something to indicate to a reasonably prudent person that the relation of trustee and cestui que trust has ceased ..." Denson v. Denson, 214 Ga. 8, 10 (102 SE2d 605). Assuming at this point that the appellees' claim of implied trust can be sustained, there has been no showing that any such notice was given decedent or the appellees prior to the commencement of this action.
(c) In opposition to appellees' claim of implied trust, appellant asserts that he owns both legal and equitable title by way of a completed gift. Ordinarily, the burden is on the party asserting a gift to prove all its essential elements including donative intent. See Hise v. Morgan, 91 Ga. App. 555 (86 SE2d 374); Upchurch v. Upchurch, 76 Ga. App. 215 (45 SE2d 855). In the present case, however, where appellant's father, decedent, caused the conveyance to be made to appellant as grantee and where decedent paid the purchase money, a completed gift is presumed. "As between husband and wife, parent and child, and brothers and sisters, payment of purchase money by one, and causing the conveyance to be made to the other, shall be presumed to be a gift; but a resulting trust in favor of the one paying the money may be shown and the presumption rebutted." Code § 108-116.
In order to rebut the presumption of gift, established *57 here by the appellees' own pleadings, the appellees must show that a resulting trust was contemplated by both parties by way of an understanding or agreement. Williams v. Thomas, 200 Ga. 767 (38 SE2d 603); Jackson v. Jackson, 150 Ga. 544, 554 (104 SE 236); Kimbrough v. Kimbrough, 99 Ga. 134 (25 SE 176); Vickers v. Vickers, 133 Ga. 383 (65 SE 885, 24 LRA (NS) 1043). This understanding or agreement, either express or shown by the nature of the transaction, the circumstances or the conduct of the parties, must have existed at the time the transaction was consummated. See Williams v. Thomas, supra. The only evidence offered by appellees in opposition to appellant's motion for summary judgment to establish such an understanding or agreement was that (1) in 1972 decedent paid the property taxes on the land in question, (2) decedent applied for homestead exemptions on the property covering the years 1967 through 1973, and (3) shortly after decedent's death, appellant told one of the appellees that appellant knew the property did not belong to him. Although this evidence may be probative as to the parties' subsequent beliefs as to ownership and as to decedent's intentions with respect to the title, there was no evidence produced by appellees which would show that appellant, who was two years old at the time of the conveyance, was aware of the transaction or that he either understood or agreed that he would hold legal title for the benefit of decedent. "An absolute gift can not, by events transpiring after it was made, be metamorphosed into a trust." Vickers v. Vickers, supra, 385; see also Williams v. Thomas, supra; Langan v. Langan, 224 Ga. 399 (162 SE2d 405). Because the appellees offered no evidence as to any such understanding or agreement existing at the time the conveyance was made, the presumption of gift stands unrebutted. The trial court erred in denying appellant's motion for summary judgment.
Judgment reversed. All the Justices concur, except Gunter, J., who concurs in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1335704/ | 233 Ga. 94 (1974)
210 S.E.2d 172
RICHMOND COUNTY PROPERTY OWNERS ASSOCIATION et al.
v.
AUGUSTA-RICHMOND COUNTY COLISEUM AUTHORITY et al.
29200.
Supreme Court of Georgia.
Argued September 11, 1974.
Decided October 8, 1974.
Rehearing Denied October 25, 1974.
McDonald C. Haynie, for appellants.
Congdon, Williams & Daniel, Robert C. Daniel, Jr., Maguire & Kilpatrick, Samuel F. Maguire, John Bell, for appellees.
NICHOLS, Presiding Justice.
Richmond County Property Owners Association, and others filed a complaint in the Richmond County *95 Superior Court seeking to have declared unconstitutional the Act creating the Augusta-Richmond County Coliseum Authority (Ga. L. 1973, p. 3042) as amended by the Act of 1974 (Ga. L. 1974, p. 3207). The complaint also attacked a 1973 amendment to the Malt Beverage Licensing and Excise Tax Acts, the choice of the site for the construction of the coliseum, the right of the owner of such property to sell it to the authority, etc. The trial court considered each contention made by the plaintiffs and dismissed the complaint. The appeal is from this judgment.
1. One contention that the Act creating the Augusta-Richmond County Coliseum Authority (Ga. L. 1973, p. 3042) is unconstitutional is based upon the amendment to the Constitution proposed at the 1968 session of the General Assembly (Ga. L. 1968, p. 1787), and adopted as an amendment to the Constitution at the 1968 general election (Ga. L. 1969, p. 1368).
The local amendment to the Constitution dealing with the government of Richmond County and the municipalities located therein, supra, did not have the effect of limiting any authority that the General Assembly had prior to the adoption of such amendment. The language contained in the fourth numbered paragraph on Page 1790 of the 1968 Acts must be construed as reading "are cumulative of all other powers now held by the General Assembly, and not in lieu thereof." The italicized word appears as "not" in the enrolled copy of such resolution, but a literal reading of such sentence results in a meaningless sentence since such powers could not be in lieu of powers not held by the General Assembly nor could they be cumulative of powers not held. Compare Lamons v. Yarbrough, 206 Ga. 50 (55 SE2d 551).
The General Assembly had the constitutional authority to create the Coliseum Authority and the powers granted therein did not constitute an unauthorized delegation of authority by the General Assembly. Compare Williamson v. Housing Authority of Augusta, 186 Ga. 673, 680 (199 SE 43).
2. The complaint attacks the Act of 1973 (Ga. L. 1973, p. 328) dealt with previously in Blackmon v. Golia, 231 Ga. 381 (202 SE2d 186), upon the ground that such *96 Act provided for the use of the proceeds of such tax in counties of not less than 162,000 or more than 165,000 population. In 1974 (Ga. L. 1974, p. 1447), the General Assembly again amended the Act amended in 1973. The 1974 amendment repealed all laws and parts of laws in conflict with such amendment. The trial court held that the 1974 Act rendered moot the attack upon the 1973 Act, and that there is now no legislative mandate that such malt beverage tax be used to construct, etc. a coliseum or civic center.
The treasurer of Richmond County, who the plaintiffs contend is required to disburse such tax funds is a party to the present litigation. The ruling of the trial court precludes him from disbursing such funds under such Act. The ruling grants the plaintiffs the relief sought. Therefore, no question is presented for decision by this enumeration of error.
3. The site selected by the Augusta-Richmond County Coliseum Authority includes land owned by the Georgia Railroad and Banking Company obtained by it in 1835 under a deed wherein it covenanted that it would use this property to terminate its railroad line and also build its offices thereon. The contention is made that the railroad is without legal authority to sell the property to the Augusta-Richmond County Coliseum Authority.
The deed contained no words of forfeiture. The trial court properly held that such stipulation in the deed was a covenant and not a forfeiture which would cause title to the property to revert to the grantor upon abandonment of the property for the purposes stipulated in the deed. Compare Thornton v. Trammell, 39 Ga. 202, dealing with a similar deed executed at a time when the same statutory law governing construction of deed was in effect and indeed is in effect today. See Code § 85-503; Fulford v. Fulford, 225 Ga. 9, 12 (165 SE2d 848).
4. Under the decision in Sears v. State of Ga., 232 Ga. 547, 552 (208 SE2d 93), any contention that two members of the authority were disqualified from acting in determining the location of the site for the building of the coliseum and civic center is without merit inasmuch as the record makes it affirmatively appear that any purported disqualification of the chairman or one named *97 member of the authority would not have resulted in any different vote inasmuch as the original vote for the selection of such site was eight to one in favor of the site selected and was subsequently made unanimous.
5. The erection of a civic hall and a coliseum is unquestionably for a public purpose. Compare Tillman v. Mayor &c. of Athens, 206 Ga. 289 (56 SE2d 624).
6. The contention of the plaintiffs in the trial court that the authority had acted ultra vires in the selection of the site is without merit. There being no cause of action stated which would authorize the grant of an injunction preventing the Authority from proceeding to obtain the property or construct the coliseum and civic center, the judgment of the trial court denying the plaintiffs an injunction was not error.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
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